*CHAPTER XXIV.

COMMON CARRIERS OF PASSENGERS.

SECTION I.

Degree of Care required.

1. Are responsible for the utmost care and watchfulness.

2. Duty extends to everything connected with the transportation.

6. Not easy to define the degree of care required.

7. Passenger carriers not responsible for accidents without fault.

3. But will not extend to an insurance of 8. They contract only for their own acts.

safety.

4. Will make no difference, if passenger does

not pay fare.

5. So too where the train is hired for an excursion, or is under control of state offi

cers.

9. They must adopt every precaution in

known use.

10-12, and notes. Further discussion of the rule and the cases.

§ 176. 1. It is agreed on all hands that carriers of passengers are only liable for negligence, either proximate or remote, and that they are not insurers of the safety of their passengers, as they are as common carriers of goods and of the baggage of passengers. The rule is clearly laid down in one of the early cases,1 by Eyre, Ch. J.: that carriers of passengers "are not liable for injuries happening to passengers from unforeseen accident or misfortune, where there has been no negligence or default in the driver." "It is said he was driving with reins so loose that he could not readily command his horses; if that was the case the defendants are liable; for a driver is answerable for the smallest negligence." This is now the settled rule upon the subject, as applicable to all modes of carrying passengers, by those who hold themselves out as public or common carriers of passengers.2

2. And the obligation of care and watchfulness extends to all

1 Aston v. Heaven, 2 Esp. 533. S. P. Frink v. Potter, 17 Illinois R. 496. 2 Christie v. Greggs, 2 Camp. 79; Harris v. Costar, 1 C. & P. 636; White v. Boulton, Peake's C. 81; Sharp v. Grey, 9 Bing. 457.

In this last

4

the apparatus by which passengers are conveyed. *case it is said: "The obligation of a stage proprietor, in regard to carrying passengers safely, has reference to the team, the load, the state of the road, as well as the manner of driving." In another case the rule is somewhat more elaborated, by Best, Ch. J.: "The action cannot be maintained unless negligence be proved, and whether it be proved is for the determination of the jury. The coachman must have competent skill, and must use that skill with diligence; he must be well acquainted with the road he undertakes to drive; he must be provided with steady horses, a coach and harness of sufficient strength and properly made, and also with lights by night. If there be the least failure in one of these things the duty of the coach proprietors is not fulfilled, and they are answerable for any injury or damage that happens." The rule of care and diligence thus laid down has been very generally adopted in this country.5

3

Taylor v. Day, 16 Vt. R. 566; Curtis v. Drinkwater, 2 B. & Ad. 169. See Sales v. Western Stage Co., 4 Clarke (Iowa), 541.

* Crofts v. Waterhouse, 3 Bing. 319. A very similar rule is adopted in Farrish v. Reigle, 11 Gratt. 697. The defect in this case was the blocks being out of the brakes, which caused the coach to press upon the horses so that they could not control it, and in consequence it was upset and the plaintiff injured.

The coach-owner, or his servants, must examine his coach before each trip, or he is chargeable with negligence if any accident happen through defect of the coach. And if any irregularity is pointed out, the driver must look to it immediately. Brenner v. Williams, 1 C. & P. 414, Best, Ch. J.

5

Boyce v. Anderson, 2 Pet. Sup. Ct. R. 150; Stokes v. Saltonstall, 13 Pet. (U. S.) 181, 192; Fuller v. Naugatuck Railw., 21 Conn. R. 557; Hall v. Conn. Riv. Steamboat Co., 13 Conn. R. 319; Camden & Amboy Railw. v. Burke, 13 Wend. 611, 626; McKinney v. Neil, 1 McLean, 540; Maury v. Talmadge, 2 McLean, 157; Stockton v. Frey, 4 Gill, 406; Hollister v. Nowlen, 19 Wend. 236; Derwort v. Loomer, 21 Conn. R. 245. But a passenger carrier is not responsible for any loss or expense of the passengers consequent upon quarantine regulations. New Orleans v. Windermere, 12 La. Ann. 84. See Alden v. N. Y. Cent. Railw., 26 N. Y. 102, where the company were held liable for an injury resulting from a crack in the axle of a car, undiscoverable by any practicable mode of examination.

The rule in Connecticut was first settled, in 13 Conn. R. 326, that carriers of passengers are "bound to the highest degree of care that a reasonable man would use." This has been adhered to in all the subsequent cases, and is substantially the same as the English rule, and as that adopted in the other states, and in the United States Supreme Court, 13 Pet. Sup. Ct. R. 190, where Mr. Justice Bar

*The fact that injury was suffered by any one while upon the bour indorses the charge of the Circuit Court, that the carrier of passengers is liable “if the disaster was occasioned by the least negligence, or want of skill or prudence, on his part."

But in the case of Boyce v. Anderson, 2 Pet. 150, Mr. Ch. Justice Marshall lays down the rule of care, in such cases, as that of ordinary care, the care which all bailees for hire owe the employer. The court, in 13 Pet. 192, attempt to escape from this rule, upon the ground that the remarks of Ch. Justice Marshall, in the former case, had reference exclusively to the carriage of slaves, and that the rule laid down would not of necessity apply to ordinary passengers. But it is observable that the learned chief justice makes no such distinction, and also, that the nearer the thing transported comes to the condition of property merely, the higher the degree of care and responsibility, so that the argument seems not only to fail, but to produce a reflex influence.

We refer to this subject here, not with any view to go into the question of the real coincidence of the degree of care of carriers of passengers and that of ordinary bailees for hire, but merely to state that it seems to us the cases really come up to nothing more than that which is required of every bailee for hire, that he should conduct the business as prudent men would be expected to conduct their own business of equal importance. And if the business be of the highest moment, then the care, skill, and diligence should be also of the most extreme character. See also Fletcher v. Boston & Maine Railw., 1 Allen, 9; Holley v. Boston Gas Light Co., 8 Gray, 131.

If the degree of care and watchfulness is to be in proportion to the importance of the business, and the degree of peril incurred, it is scarcely possible to express the extreme severity of care and diligence which should be required in the conduct of passenger trains upon railways. Hence very few cases of accident and injury have occurred, where it was not considered in some measure attributable to a want of the requisite degree of care. We here refer to the case of Briggs v. Taylor, 28 Vt. R. 180, 184, for a more full exposition of this general subject of the degrees of care and diligence. Where we said

"In regard to the carriage, and the wagons and sleds, which were not past use, although the carriage was an old one, and the wagons and sleds were described by the witnesses as being "not very new nor very old," it seems to us there was no testimony in the case tending to show that an officer who held them under attachment, would be fully justified in letting them stand outdoors all winter. We could scarcely conceive of a state of facts justifying such a course short of absolute necessity, which, it would seem, would never occur when boards could be obtained. And where there is no testimony tending to excuse an officer in such case, it becomes a mere question of damages. Questions of negligence are said in the books to be mixed questions of law and fact, but where there is no testimony tending to show negligence, or where a given course of conduct is admitted which results in detriment, and no excuse is given, the liability follows as matter of law, and there is nothing but a question of damages for the jury. We do not think a judge is ever bound to submit to a jury questions of fact

*

company's trains as a passenger, is regarded as prima facie evidence of their liability.6

resulting uniformly and inevitably from the course of nature, as that carriages will be injured more or less by exposure to the weather during the whole winter, or that a judge is bound to submit to a jury the propriety of such a course, when it is perfectly notorious that all prudent men conduct their own affairs differently. This uniformity of the course of nature or the conduct of business becomes a rule of law. But while there is any uncertainty it remains matter of fact for the consideration of a jury. It could not be claimed that it should be submitted to a jury whether cattle should be fed or allowed to drink, or cows be milked.

As from the determination of the first point a new trial becomes necessary, it will be of some importance to inquire in regard to the proper mode of defining the duty of the officer in keeping goods attached on mesne process. It is usually defined in practice in this state, certainly, so far as we know, much as it was in this case, by the use of the terms "ordinary and common care, diligence, and prudence." And it is probable enough these terms might not always mislead a jury. But it seems to us they are somewhat calculated to do so. If the object be to express the medium of care and prudence among men; it is certain these terms do not signify a fixed quality of mediocrity even. For if so, they would not be susceptible of the degrees of comparison, as more ordinary, and most ordinary, which medium, and middle, and mean, are not. The truth is, that ordinary, and middling, and mediocrity, even, when applied to character, do import to the mass of men, certainly, a very subordinate quality or degree; something

• Denman, Ch. J., at Nisi Prius, in Carpue v. London & B. Railw., 5 Q. B. 747. Laing v. Colder, 8 Penn. St. 479, 483; Galena & Ch. Railw. v. Yarwood, 15 Ill. R. 468, 471; Hegeman v. The Western Railw., 16 Barb. 353, 356; Holbrook v. The Utica & Schen. Railw., 16 Barb. 113; Curtiss v. Roch. & Sy. Railw., 20 Barb. 282.

The same rule had obtained in actions against carriers of passengers by coaches. 13 Pet. Sup. Ct. R. 181. See Skinner v. L. B. & South Coast Railw., 2 Eng. L. & Eq. 360, to same effect.

But in Holbrook & Wife v. Utica & Schen. Railw., 2 Kernan, 236, the court seem to deny that a presumption of negligence arises in all cases of injury to passengers. In this case the wife's arm, while in the window of the car, was broken by something coming in contact with the car in passing stationary cars of the company on another track. The court say, in cases of this kind, the burden of showing negligence is upon plaintiff, and the presumption is an inference of fact for the jury, from the cause of the injury and the circumstances attending.

The case of Hegeman v. The Western Railw., 16 Barb. 353, was where the plaintiff had sustained an injury by the breaking of an axletree while he was a passenger in defendants' cars, and it was claimed to be neglect in the company in not providing safety-beams to their cars, and it was held, that evidence might be received to show the utility of the invention, and that it was proper to sub* 326

VOL. II.

12

*3. So, too, evidence that the cars did not stop at a way station the usual time, and that a passenger is injured in getting quite below that which we desire in an agent or servant, and which we have the right to require in a public servant especially. A man who is said to be middling careful, or ordinarily careful, is understood to be careless, and is sure never to be trusted.

We have been at some pains to look into the English books upon this point, and although there may be some exceptions, the general rule certainly is, among the English judges, to express common care and ordinary care by terms less liable to misconstruction, and, as we think, likely to be more justly appreciated by juries. In Duff v. Budd, 3 Brod. & Bing. 177, the rule is laid down by Dallas, Ch. J. to the jury in these words: "Gross negligence is where the defendant or his servants have not taken the same care of the property as a prudent man would have taken of his own," and the judgment is affirmed by the full bench. In Riley v. Horne, 5 Bing. 297, Best, Ch. J. says of a carrier, "the notice will protect him unless the jury think that no prudent person, having the care of an important concern of his own, would have conducted himself with so much inattention, or want of prudence." In Batson v. Donovan, 4 Barn. & Ald. 32, the same learned judge lays down the rule thus: "They must take the same care of it that a prudent man does of his own property. This is the law with respect to all bailees for hire or reward.”

In Wyld v. Pickford, 8 M. & W. 443, Parke, B., seems to claim a distinction between gross negligence and ordinary neglect, but admits that ordinary

mit the question of negligence to the jury under proper instructions. The court say: "Whether the engine or car, which is placed upon the road for the purpose of carrying passengers, has been manufactured at its own shops," ..or purchased of other manufacturers, "the company is alike bound to see, that in the construction no care or skill has been omitted for the purpose of making such engine or car as safe as care and skill can make it." It was held to afford no presumption against the negligence of the company, that they had selected their servants with care with reference to their competency, or that the act, by which the plaintiff sustained injury, was done without the sanction of the company. Gillenwater v. The Madison & Indianapolis Railw., 5 Ind. R. 340; Farish v. Reigle, 11 Grat. 697. And in a late case, Alden v. N. Y. Cent. Railw., Am. Railw. Times, Feb. 4, 1865, it is reported that the court held the company responsible for a defect in the axletree of a car, which was not discoverable without taking the car to pieces, a passenger being injured in consequence.

In Galena & Chicago Railw. v. Yarwood, 17 Ill. R. 509; s. c. 15 Ill. R. 468, it is held, that a passenger in a railway car need only show that he has received an injury, to make a primâ facie case against the carrier; the carrier must rebut the presumption, in order to exonerate himself. Negligence is a question of fact, which the jury must pass upon. Persons in positions of great peril are not required to exercise all the presence of mind and care of a prudent, careful man, under ordinary circumstances; the law makes allowance for them, and