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intended to part with it, without something more than the ordinary conveyance of the servient estate, as evidence of such intention. But this latter principle, even in the case of landlocked estates, was adopted after much doubt and with some reluctance^ and it is certainly difficult to reconcile it with the old principles of the common law. Farther than this, it is not necessary to go, and is not safe to go.

EXCHEQUER CHAMBER.
Nov. 26 And 27, 1868, And May 10, 1869.

(Before Kelly, C. B., Keating, Byles, and M. Smith, JJ.; Bkamwell and

Channeix, BB.)

Redhead V. The Midland Railway Company.

There is no contract either of general or limited warranty and insurance undertaken by a carrier of passengers. He contracts and is obliged only to take due care, including in that term the use of skill and foresight, to carry the passenger safely, and negligence alone is a breach of this contract.

"Due care" means a high degree of care, and casts on carriers the duty of exercising all vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order. But this duty will not make carriers responsible for injuries to passengers arising from a latent defect in the machinery they are obliged to use, which no human skill or care could either have prevented or detected.

Sanbie, that even in the case of common carriers of goods, there is no warranty on the part of the carriers that their carriages are road worthy.

In this case, the declaration alleged that the defendants were carriers of passengers by railway, from Nottingham to South Shields, for reward, and that the plaintiff became their passenger, to be safely carried by them as such carriers, in a certain train of carriages from Nottingham to South Shields aforesaid for reward; -that the defendants managed and conducted the train so negligently, and took so little and such bad care in providing a proper and safe carriage, and were so careless and negligent in examining from time to time the wheels of the carriage in which the plaintiff was, &c., that by reason thereof the carriage was broken to pieces, and the plaintiff injured.

Plea, not guilty. •

The case was tried before Lush, J., at the Durham Spring Assizes 1866, when it appeared that the plaintiff took a second-class ticket as passenger from Nottingham to South Shields, on the 4th of May, 1865, and travelled by express train. During the journey the carriage in which the plaintiff was ran off the line, broke away from the first part of the train, and rolled over, thereby severely injuring the plaintiff. On the part of the railway company, it was proved that the accident was caused by the giving way of one of the wheels of the carriage in which the defendant was,

Note. — This case is reprinted from the "Law Times Reports," New Series, vol. 20, p. 628, where the arguments are given more at length than in the "Law Beports." owing to a defect in the welding of the tire, caused by an air-bubble: that the defect was not discoverable by the eye or the ear; that the wheels were examined during the journey, in the usual way, by inspection and sounding them with a hammer; that the tire of the wheel in question was of the usual thickness, and that such defects might exist without any fault on the part of the manufacturer.

The learned judge left it to the jury to say whether there was any evidence of negligence on the part of the defendants in not detecting the fault in the wheel, or whether the accident was not one of those to which all are subject, in which, though injuries arise, no one is chargeable in law for the consequences; and he directed them that if the defect in the wheel could not be detected either by the eye or the ear, then there was no negligence on the part of the defendants. The jury found a verdict for the defendants. A rule ?iisi having been obtained for a new trial on the ground df misdirection, Aspinal/, Q. C. and Kemplay, on the 20th June, 1866, showed cause against the rule, Manisty, Q. C. and T. Jones arguing in support of it. The majority of the Court of Queen's Bench (mei.lor and Lush, JJ.) discharged the rule, Blackburn, J., dissenting and being of opinion that there is an obligation on a carrier of passengers to provide, at his peril, a vehicle in fact reasonably sufficient for the journey, and that he is responsible for the consequences of any insufficiency, though arising from a latent defect. (See the case reported in the court below, 16 L. T. Rep. N. S. 485.) This judgment was appealed against, but the appeal was subsequently abandoned, and a special case raising shortly the point for decision was stated as follows:—

The action was brought by the plaintiff to recover damages from the defendants for injuries sustained by him whilst travelling as a passenger by railway from Nottingham to South Shields, in consequence of negligence alleged to have been committed by the defendants. The plaintiff took a second-class ticket, and the carriage in which he was travelling got off the line and was upset, and the plaintiff received injuries therefrom. The cause of the carriage getting off the line and upsetting was the breaking of the tire of one of the wh»els, and such breaking arose from a latent defect in the tire, which was not attributable to any fault on the part of the manufacturer, and could not be detected previously to the breaking of the tire. The question for the opinion of the court is whether the plaintiff was entitled to recover in the action.

The Court of Queen's Bench, without hearing arguments on the special case, gave judgment for the defendants, and on this judgment, error was now brought.

Nov. 26 and 27,1868. — Manisty, Q. C. (with whom was C. Crampton) for the plaintiff. The question is whether a carrier of passengers for

reward does not warrant that his carriage is de facto fit for the purpose of carrying; if he does so warrant, then a latent defect in the carriage which renders it de facto unfit for the purpose, amounts to a breach of that warranty; and knowledge or ignorance on the part of the carrier of the existence of the defect is immaterial. In the first place, as between the manufacturer of the carriage and the company which purchase it, there is an implied warranty that the carriage is absolutely fit for the purpose of carrying passengers. In Brown v. Edgington, 2 M. & Gr. 279, where a wine merchant ordered a crane rope of a dealer in ropes, who also represented himself as a manufacturer of them, and the dealer's foreman thereupon ascertained the nature and dimensions of the rope required, and the purpose for which it was required, and the dealer then sent an order to his manufacturer, who employed a third party to make the rope, it was held in an action by the wine merchant against the dealer to recover damage resulting from the insufficiency of the rope, that the dealer, as between him and the wine merchant was to be considered as the manufacturer of the rope, and that an implied warranty arose out of the contract that the rope was a fit and -proper one for the purpose for which it was ordered ; viz., for lifting pipes of wine out of a cellar. Tindal, C. J., said, "It appears to me to be a distinction well proved, both in reason and on authority, that if a party purchases an article upon his own judgment, he cannot afterwards hold the vendor responsible, on the ground that the article turns out to be unfit for the purpose for which it was required; but if he relies upon the judgment of the seller, and informs him of the use to which the article is to be applied, it seems to me the transaction carries with it an implied warranty that the thing furnished shall be fit and proper for the purpose for which it was designed." And Maule, J. adds, " Supposing that the accident had happened in consequence of the rope having been improperly fixed to the crane, it is clear the defendant would have been liable. I do not see why he should be answerable in that event, and not for a defect in the rope itself." In Lyon v. MeUs, 5 East, 428, it was held that a carrier by water contracting to carry goods for hire impliedly promises that the vessel shall be tight and fit for the purpose, and is answerable for damage arising from leakage, even though he had given notice "that he would not be answerable for any damage unless occasioned by want of ordinary care in the master or men of the vessel." Lord Ellenborotjgh, C. J., in delivering the judgment of the court, says, "In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire and the person putting goods on board or employing his vessel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public; it is the very foundation and immediate vol. iv. 5

substratum of the contract that it is so; the law presumes a promise to that effect on the part of the carrier without any actual proof; and every reason of sound policy and public convenience requires that it should be so. . . . The declaration avers a breach that the lighter was not tight and capable of carrying the yarn safely; and the facts stated support the breach so alleged, by showing that the vessel was leaky and had nearly sunk in the dock before the yarn could be unloaded from the lighter into the sloop. This we consider as personal neglect of the owner, or more properly as a non-performance on his part of what he had undertaken to do; viz., to provide a fit vessel for the purpose." This reasoning is exactly in point in the present case. [kelly, C. B. — But that was not a case of a latent and undiscoverable defect, which it was not negligence to be ignorant of.] In Jones v. Bright, 5 Bing. 533, where the plaintiff purchased from the warehouse of the defendant, a manufacturer, copper for sheathing a ship, and the copper in consequence of some intrinsic defect, the cause of which was not proved, lasted only four months instead of four years, the average duration of such .an article, it was held that the plaintiff was entitled to damages. Best, C. J., after stating the facts, says, " I wish to put the case on a broad principle. If a man sells an article, he thereby warrants that it is merchantable, that it is fit for some purpose. This was established in Laing v. Fidgeon. If he sells it for a particular purpose, he thereby warrants it fit for that purpose; and no case has decided otherwise, although there are doubtless some dicta to the contrary. Reference has been made to cases on warranties of horses; but there is a great difference between contracts for horses and a warranty of a manufactured article. No prudence can guard against latent defects in a horse; but by providing proper materials, a merchant may guard against defects in manufactured articles; as he who manufactures copper may by due care prevent the introduction of too much oxygen. . . . Though the conduct of the defendants was most upright, the article they sold had certainly suffered in the manufacture. At all events, the warranty given by them is not satisfied, because the jury find that there is an intrinsic defect in an article manufactured by them." In Shepherd v. Pybus, 3 M. & Gr. 868, it was held that upon the sale of a barge by the builder, a warranty that it is reasonably fit for use is implied notwithstanding the written agreement of sale is silent as to any warranty. In Jones v. Just, Law Rep. 3 Q. B. 197; 18 L. T. Rep. N. S. 208, the court held there was an implied warranty of the merchantable quality of certain Manilla hemp for the purchase of which the plaintiff contracted with the defendant, and Mellok, J., in delivering the judgment of the court, said, " We are of opinion that there is a great distinction between the present case and the sale of goods in esse, which the buyer may inspect, and in which a latent defect may exist, although not discoverable on inspection." That learned judge classifies the various cases which bear on the subject,

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