ble to the passenger for injuries caused by the defect, because the law implies a contract or warranty out of the duty which they undertake. [KELLY, C. B.—- But how can you raise a contract out of a duty which cannot be performed? If there is such a contract as you contend for, it must be one which goes far beyond a duty. There can be no duty to discover the undiscoverable.] If there is a defect owing to negligence on the part of the manufacturer, the defendants would be liable for its consequences, even though they themselves could not have discovered it: why should they not be equally liable for the results of a defect which the manufacturer could not discover? No valid reason can be assigned why the liability of a carrier of goods should be greater than that of a carrier of passengers in such a case as the present, where the passengers, once closed up in the carriages, have no power to do any thing for themselves, and are as much under the absolute control of the railway company as parcels of goods are. Such carriers of passengers should a fortiori be held to be insurers, their duty being so much more grave and important than that of carriers of goods. If on the first using of a carriage it broke down owing to a latent and undiscoverable defect like that in the present case, could the manufacturer make the purchaser pay the price for it? could it, under such circumstances be said to be reasonably sufficient for the purposes intended? The judgment of BEST, C. J., in Crofts v. Waterhouse, 3 Bing. 319, supports the plaintiff's case. He says (p. 321), "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 any 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 carriage in the present case was not of sufficient strength for the journey undertaken, owing to the latent defect. In Bluett v. Osborne, 1 Stark, 384, as remarked by MAULE, J., in Brown v. Edgington, 2 M. & Gr. 279, there was a sale of the specific bowsprit, which was like the sale of a particular horse, and that was the ground of the decision. Cur. adv. vult.

May 10, 1869. The judgment of the court was on this day delivered as follows by MONTAGUE SMITH, J.: In this case the plaintiff, a passenger for hire on the defendants' railway, suffered an injury in consequence of the carriage in which he was travelling getting off the line and upsetting. The accident was caused by the breaking of the tire of one of the wheels of the carriage owing to 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. Does an action lie against the company under the circumstances? This question involves the consideration of the true

nature of the contract made between a passenger and a general carrier of passengers for hire. It is obvious that, for the plaintiff on this state of facts to succeed in this action he must establish either that there is a warranty by way of insurance on the part of the carrier to convey the passenger safely to his journey's end, or, as his learned counsel mainly insisted, a warranty that the carriage in which he travels should be in all respects perfect for its purpose, that is to say free from all defects likely to cause peril, although those defects were such that no skill, care, or foresight could have detected their existence. We are of opinion, after consideration of the authorities, that there is no such contract either of general or limited warranty and insurance entered into by the carrier of passengers, and that the contract of such a carrier and the obligation undertaken by him are to take due care, including in that term the use of skill and foresight, to carry the passenger safely. It of course follows that the absence of such care, in other words negligence, would alone be a breach of this contract; and as the facts of this case do not disclose such a breach, and, on the contrary, negative any want of skill, care, or foresight, we think the plaintiff has failed to sustain his action, and that the judgment of the court below in favor of the defendants ought to be affirmed. The law of England has, from the earliest times, established a broad distinction between the liabilities of common carriers of goods and of passengers. Indeed, the responsibility of the carrier to redeliver the goods in a sound state can attach only in the case of goods. This responsibility (like the analogous one of innkeepers) has been so long fixed, and is so universally known that carriers of goods undertake to carry on contracts well understood to comprehend this implied liability. If it had not been the custom of the realm, or the common law declared long ago, that carriers of goods should be so liable it would not have been competent for the judges in the present day to have imported such a liability into their contracts on reasons of supposed convenience. But this is, as it seems to us, what we are asked by the plaintiff to do in the case of carriers of passengers. The liability of the common carrier of goods attached upon the particular bailment of the goods to him in his capacity of common carrier, and the rules which govern the rights of bailors and bailees of things are of course applicable only to things capable of bailment. The law, and the reasons for it, in the cases of bailments to carriers are found in the great judgment of HOLT, J., in Coggs v. Bernard, Sm. L. Cas. 189, 6th edit., and are thus stated: "As to the fifth sort of bailment, viz., a delivery to carry or otherwise manage for a reward to be paid to the bailee those cases are of two sorts, either a delivery to one that exercises a public employment or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events; and this is the case of the common carrier, common hoyman, master of a ship, &c., which case of a master of a ship

was first adjudged (26 Car. II.) in the case of Mors v. Slue, Sir T. Raym. 220; 1 Vent. 190, 238. The law charges this person thus intrusted to carry goods against all events but acts of God, and of the enemies of the king for though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing, for else these carriers may have an opportunity of undoing all persons that had any dealing with them by combining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." The same law is found in numerous text-books (some of which are referred to in the judgments of my brothers MELLOR and LUSH in their judgments below), and has been acted on for centuries in the case of carriers of goods. The court is now asked to declare the same law to be applicable to contracts to carry passengers. The learned counsel for the plaintiff felt the difficulty of the attempt to apply the entire liability of the carrier of goods to the carrier of passengers; but he contended for and mainly relied on the proposition that there was at least a warranty that the carriage in which the passenger travelled was roadworthy, and that the liability of the carriers of goods in this respect ought to be imported into the contract with the passenger. But first it is extremely doubtful whether such warranty can be predicated to exist in the contract of the common carrier of goods. His obligation is to carry and redeliver the goods in safety, whatever happens. In the words of Lord HOLT, "he is bound to answer for the goods at all events." Again, "The law charges this person thus intrusted to carry goods against all events but acts of God and the enemies of the king;" and this broad obligation renders it unnecessary to import into the contract a special warranty of the roadworthiness of the vehicle, for if the goods are safely carried and redelivered, it would be immaterial whether the carriage was roadworthy or not; and if the goods are lost or damaged the carrier is liable on his broad obligation to be answerable at all events, and it is unnecessary to inquire how that loss or damage arose. But however that may be, it is difficult to see upon what principle the contract of the carrier of goods, which on the hypothesis does not apply in its entirety to carriers of passengers, is to be dissected, and a particular part severed and attached to what, on the hypothesis, is another and different contract. It was contended that the reason which made it the policy of the law to impose the wider obligation on the carriers of goods applied with equal force to impose the limited war ́ranty of the soundness of the carriage in favor of the passengers. The reason suggested was, as we understand it, that a passenger, when placed in a carriage, was as helpless as a bale of goods, and, therefore, entitled to

have for his personal safety a warranty that the carriage was sound; but this is not the reason, or any thing like the reason, given by Lord HOLT for the liability of the carrier of goods. The argument founded on this reason, however, would obviously carry the liability of the carrier far beyond the limited warranty of the roadworthiness of the carriage in which the passenger happened to travel. His safety is no doubt dependent on the soundness of the carriage in which he travels, but in the case of a passenger on a railway it is no less dependent on the roadworthiness of the other carriages in the same train, and of the engine drawing them; on the soundness of the rails, of the points, of the signals, of the masonry; in fact, of all the different parts of the system employed and used in his transport, and he is equally helpless as regards them all. If then, there is force in the above. reason, why stop short at the carriage in which the passenger happens to travel? It surely has equal force as to all these things; and, if so, it must follow as a consequence of the argument that there is a warranty that all these things shall be and remain absolutely sound and free from defects. This which appears to be the necessary consequence of the argument, although Mr. Manisty disclaims the desire to press it so far, tries the value of it. But surely if the law really be as it was contended to be, it would have been so declared long ago. No actions have been more frequent of late years than those against railway companies in respect of injuries sustained by passengers. Some of these injuries have been caused by accidents arising from defects in the rolling stock, others from defects in the permanent works. Long inquiries have taken place as to the causes of these defects, and whether they were due to want of care and skill, which would have been altogether immaterial if warranties of the kind contended for formed part of the contract. An obligation to use all due and proper care is founded on reasons obvious to all, but to impose on the carrier the burden of a warranty that every thing he necessarily uses is absolutely free from defects likely to cause peril, when from the nature of the things defects must exist, which no skill can detect and the effects of which no care or foresight can avert, would be to compel a man by implication of law, and not by his own will, to promise the performance of an impossible thing, and would be directly opposed to two maxims of law, Lex non cogit ad impossibilia, Nemo tenetur ad impossibilia. If the principle of implying a warranty is to prevail in the present case there seems to be no good reason why it should not be equally applied to a variety of other cases, as, for instance, to the managers of theatres or other places of public resort who provide seats or other accommodation for the public for reward. Why are they not to be equally held to insure by implied warranty the soundness of the structures to which they invite the public. But we apprehend it to be clear that such persons do no more than undertake to use due care that their buildings shall be in a fit state. Thus a staircase in the Polytechnic Institution fell and

injured several persons attending a public exhibition there. Two actions. were brought by separate plaintiffs who had paid money for their entrance. The first was tried before WIGHTMAN, J., the second before ERLE, C. J., No one seems to have supposed there was any warranty of the soundness of the staircase, yet the persons using it were as helpless to detect or prevent the accident as the traveller. Both learned judges put the liability entirely on the question whether there was the want of due care in maintaining the staircase, and ERLE, C. J., told the jury the defendants would not be liable for latent defects. (Brazier v. The Polytechnic Institution, 1 F. & F. 507; Pike v. Same, id. 712.) So in stating the liability of a canal company who made the canal for profit, and allowed the public to use the canal on payment of tolls. TINDAL, C. J., in delivering the judgment of the Court of Exchequer Chamber says, "The common law in such a case imposes a duty upon the proprietors not, perhaps, to repair the canal or absolutely to free it from obstructions, but to take reasonable care so long as they keep it open for the public use of all who may choose to navigate it, that they may navigate without danger to their lives or property. (Lancaster Canal Co. v. Parnaby, 11 A. & E. 243.) The liability in that case was not put in any degree upon a warranty that the canal should be free from perilous defects, but upon the rational obligation to use due care that it should be so. The common law, with regard to carriers of goods and innkeepers, stands, as I have said, on its own special grounds. But it has been found so stringent, not to say unjust, in the liabilities it imposed on persons carrying on those trades, that the legislature has found it necessary in both cases to modify its stringency. It will now be necessary to examine the leading authorities cited during the argument. The counsel for the plaintiff, in the first place referred to some of the cases in which it has been held that in contracts for the supply of goods for a particular purpose, there is an implied warranty that the goods supplied shall be reasonably fit for the purpose. Bigge v. Parkinson, 7 H. & N. 955, is a case of that class. But the agreement to sell and supply goods for a price which may be supposed to represent their value, is a contract of a different nature from a contract to carry, and has essentially different incidents attached to it. Indeed, the learned counsel did not cite these cases as directly governing the present. Even in the cases of contracts to supply goods, it may be a question on which it is not now necessary to express an opinion, how far, and to what extent, the vendor would be liable to the vendee in a case of a latent defect of the kind existing in the present case, which no skill or care could prevent or detect; that is to say, where an article is supplied which has been manufactured and tested in the most careful manner, so as to be turned out as perfect as in the nature of things it could be. It is clear that if the manufacturer is liable for such an inevitable and undiscoverable defect, he can never sell what he makes without the risk of an action attaching itself to every con