No replication to third plea is copied into the record, but it shows that one was filed, an issue joined, and was tried. This is sufficient to preclude advantage being taken of its absence from the record.
*550The evidence clearly fails to show gross negligence in plaintiff in killing the ox, and the jury were erroneously instructed as to the degree of diligence required, and the degree of negligence for which they would be liable for damage done to property, circumstanced as the ox was in this case.
The degrees of care or diligence are three, and are well defined and illustrated in Story on Bailments, Secs, 15,16,186; Jones on Bailments, 8. Negligence is similarly divided, and made or defined to be the counterparts or opposites of each degree. Story on Bailments, Sec. 17 ; Jones on Bailments, 8, 9 ; Angelí on Oarr. Sec. 10.
There is little difficulty in laying down the rule for care and . for neglect, while we are content to state in the language long known, familiar to, and used_ by, the courts and profession. The difficulty is very little greater, in determining what degree of each is applicable to any given state of facts. The great difficulty is the application of the rule to determine whether the particular facts show the want of the ascertained degree of care, or guiltiness of the negligence applicable to the relation of the parties under the circumstances.
This court, in Chicago and Miss. Railroad Co. v. Patchin, 16 Ill. R. 198, examined this subject with great care, looking into a great number of cases, and upon a great diversity of facts and circumstances, varying the relation of the parties to each other, and to the property injured, and upon a very full consideration of it, in all its bearings perceivable by them, laid down the rule there adopted. Upon full reconsideration, we find nothing to shake or vary that opinion, and no new authority to settle it otherwise.
We have been referred to Jackson v. Rutland and Burlington Railroad Co., 25 Vermont B. 162, as questioning the doctrine of New York and Erie Railroad v. Skinner, 19 Penn. State R. 298, as unsound, as repudiated by the English courts, but we have not adopted the rule laid down in that case in its full extent.
We are very liable to be misled when we look into the law regulating bailments and common carriers of passengers and goods, and such special relations of parties to each other, and to the property under their care, unless we keep constantly in mind that the principles laid down, as applicable to such relationships, do not apply in their full extent for injuries done to persons and property, with whom and which defendants in actions have nothing to do, and no relation, either as bailee, carrier, or freighter.
Counsel, in arguing these questions, seem frequently to forget all distinction between goods on freight, and trespassing stock *551on the road-bed—between walking or driving upon it from idle curiosity or business calls, and taking passage on the cars. But the two relations are very different, and, consequently, the duty for the degrees of care, and liability for degrees of negligence, cannot be the same. Every farmer, mechanic, laborer and citizen, in the pursuit of his ordinary occupation or calling, though not as dangerous and unmanageable as railroad trains, is yet equally liable with railroads for damage done to his neighbor’s stock or property of this description. The degrees of care and negligence are th same, while pursuing it upon his own premises, and would be the same if transferred to or done upon the common highways. Railroads are not common highways, in the sense of public wagon roads, upon which every one may transact his own business with his own means of conveyance, but only in the sense of being compelled to accept of each and all, and take and carry to the extent of their ability. In pass1 ing public highways and public streams, where others have common rights of passing and transacting their business, the care and liability will correspond with that of all others passing and doing business on them.
Now, the three instructions given in this case, at the instance of defendant, would charge the plaintiff for (1st.) “ the fault, negligence or carelessness ” of plaintiff’s servants, in any degree; (2nd.) if “ the engineer was not keeping a proper look out on the road, ahead of the engine,” whatever other duties about the machinery might demand his attention; and (3rd.) if the road was not fenced, the ox had a right to be on it, and if killed while so upon it, “ by any want of ordinary or reasonable care and diligence in the defendant’s (plaintiff’s) servants, then they will find for plaintiff* (defendant). The degree of care to which defendant (plaintiff) is bound, is such care as is ordinary or reasonable care in the business of transporting freight by steam on a railroad.” The obvious sense of these instructions is to put all the loitering stock on freight, or freighting, terms of care, diligence and negligence, upon the railroads of the country. Although we might not interpret them as making railroads insurers, as' they are for freights, yet we cannot well stop short of all the care and liabilities of a bailee for reward. The relation of the parties to each other, and that of plaintiff to the property, is wholly misconceived. There arc no such relations as bailment or carrier creates—and no such liabilities imposed. Sic utere tuo, ut alienmn non Icedas, has more application, and may be violated by a reckless, wanton, or grossly negligent injury, as we have said in 16 Ill. R. 198.
The eighth and ninth instructions of plaintiff lay down the rule, and should have been given.
*552The allegations and proofs should agree. The allegation of negligence in the conduct and management of a train is not supported by proof of making up a train too heavy to be managed and controlled by the engine attached to it for transportation. Mayor v. Humphreys, 1 Carr and Payne R. 251; 1 McLean R. 551; McKinney v. Neil; Angell on Carr., Sec. 592.
We may reasonably doubt the legal right of owners of wandering stock to question the size and heft of trains, and the power or inability of attached engines, as passengers and freighters might do in cases of delay or damage from such cause.
The questions, as to Aldrich’s incompetency for want of religious belief in a God, and a liability to divine punishment for perjury, and the propriety of establishing this disbelief by his own sworn statements, may recur again upon another trial, and we therefore dispose of the question here.
The constitution (Art. 13, Sec. 3) has declared complete toleration of all religions, and a freedom of conscience to every man to worship as he may be enlightened and feel inclined, but it has no provision that modifies the rules of the common law in relation to requiring evidence in courts being given upon oath. Nor has it changed the rules for ascertaining those competent to give it.
The criminal code has declared persons injured by crimes and misdemeanors competent on the score of interest, leaving the question of competency on grounds of infamy, infidelity, lunacy, infancy, &c., as at common law, rendering blacks, mulattoes and indians incompetent, both in criminal and civil cases, against whites. Rev. Stat. 1845, p. 154, Secs. 15, 16; p. 237, Sec. 23. No statute regulates the question before us.
In early times Lord Coke laid down the rule as excluding all not Christians—a rule as narrow, bigoted and inhuman as the spirit of fanatical intolerance and persecution which disgraced his age and country. Lord Hale doubted and denied it, and the Lord Chancellor, Lords Ch. Justices of the K. B. and C. P. and Ch. Baron expressly overruled it in Omichund v. Barker, reported Willes R. 538 and 1 Atk. R. 21. Although the two reports differ somewhat as to the extent of the rule, I regard it as correctly laid down by Chief Justice Willes in his own report of the case, to be, that all are competent who believe that there is a God, the Creator and Preserver of all things, and that He will punish them if they swear falsely, in this world or in the next; and a want of such belief will render them incompetent to take an oath, without which no one can testify in a court of justice.
A liability to civil punishment for perjury, and the fear of it, will not substitute that moral, conscientious obligation under *553which witnesses are required to state facts as testimony, and which is supposed to be imposed and exist by an oath taken by one entertaining such belief. The rule laid down in Atkins had reference to future punishments in a life to come, and many writers and courts so follow it. His report of the case was made many years before the corrected manuscript note of it by C. J. Willes was published, which allows a belief of God’s punishments in this life or a future state of existence to be sufficient. 1 think this a sufficient guaranty of truth and to be the true rule, founded in good sense, reason and humanity. The majority of American cases follow it, though there are decisions in favor of the former. But apart from this difference, there is great uniformity and unanimity in the adoption and application of the rule, unchanged by any constitution save that of Virginia, which secures religious toleration and declares that men’s religion “ shall in no wise affect, diminish, or enlarge their civil capacities.” This in argument by the court was construed to do away all test in Perry’s case, (3 Gratt. R. 641,) though the proofs showed the witness competent, without such constitutional shield.
I have examined all the authorities accessible to me and need not review them; a simple reference may suffice, as I feel confident no one can examine the whole without a conviction that the above rule is fully sustained. 1 Phil. Ev. 10, 11; 1 Stark. Ev. 93, 94; Roscoe Cr. Ev. 129 to 132; 1 Greenleaf Ev. Secs. 368 to 370 and notes; Wakefield v. Ross, 5 Mason C. C. R. 18, note; Jackson v. Gridley, 18 John. R. 102; Butts v. Swartwood, 2 Cow. R. 431; People v. Matteson, id. 431, note (a); Anonymous, id. 572, note; Hunscom v. Hunscom, 15 Mass. R. 184; Smith v. Coffin, 18 Maine R. 157; Curtis v. Strong, 4 Day R. 55; Atwood v. Welton, 7 Conn. R. 66; State v. Cooper, 2 Tenn. R. 96; McClure v. Tennessee, 1 Verg. R. 225; Norton v. Ladd, 4 N. Hamp. R. 444; Den v. Vancleve, 2 Southard R. 652; Arnold v. Arnold, 13 Vt. R. 364; Scott v. Hooper, 14 id. 538; Quinn v. Crowell, 4 Whart. R. 337; Cubbison v. McCreery, 2 Watts & Serg. R. 262; Brock v. Milligan, 10 Ohio R. 123; Queen’s case, 2 Brod. & Bingh. R. 284, (6 Eng. C. L. R. 147); Gill v. Caldwell, Breese R. 28 and note; Noble v. The People, id. 29, 30 and note e. These cases only differ as to the belief of the present or future punishment by God for perjury, and they concur in the legality and necessity of administering the oath in the manner and form recognized by the witness as obligatory upon his conscience, according to the forms used in the country and under the religion of his spiritual faith. So a Christian should be sworn upon the Bible or Evangelists, (or affirmed, as allowed by statute,) the catholic upon the Cross, the Jew upon the Pentateuch, the Mohammedan upon the Koran, *554the Gentoo by touching the foot of the priest interpreter, and he touching the hand of another bramin or priest, et sic de similibus.
But one having no religion, believing in no God, and not accountable to any punishment for falsehood here, or hereafter, except his own notions of honor, veracity, and amenability to criminal justice, caunot be sworn, as no legal, moral', conscientious obligation or responsibility, in the view of the law, can be imposed by an oath, and he may not testify without. And this is no infringement of freedom of conscience, or violation of constitutional tolerance. He may take official oaths, and make ex parte affidavits, for no one but a party interested can object to competency, and that only to giving' testimony against him; or, it may be, to sit as a juror; McClure v. Tennessee, 1 Yerg. R. 206, and such acts as affect the rights of others.
It is simply absurd to swear a witness to testify whether he is capable of taking an oath. The current of the above authorities prescribe the proofs by other witnesses, who may testify to what they have heard him say of his belief, and would exclude the proposed witness from contradiction or explanation. Others would allow his unsworn and some a sworn statement, but would not compel him to make a statement; yet they would allow him to explain what others had heard him say, or show a change of sentiments. I think evidence by the mouths of other witnesses, most consonant to reason, and sustained by the current authorities. Though I can see no well grounded objection to hearing the proposed witness in explanation, and on a change of belief, when voluntary on his part, and sworn or unsworn, as he may choose to offer it, leaving its credit to the due consideration of the court. We are of opinion”the witness is incompetent.
The judgment will be reversed, and cause remanded for the errors noted.
Judgment reversed.
My views in regard to liability of railroad companies for injuries to stock on their roads, have been heretofore expressed. Great Western Railway Company v. Thompson, ante, p. 131. The rule as to the competency of witnesses, as affected by theological opinion, was laid down by this court as early as 1822, to be, “ that all persons who believe in the existence of a God, and a future state,” arc, unless otherwise disqualified, competent. Noble v. The People, Breese 29. This criterion of competency, so long acquiesced in, I would not, by judicial decision, disturb.