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interpreted here, that case would go no further than to impose upon common carriers the obligation of furnishing a vehicle which should be roadworthy at the commencement of the journey. If the vehicle (or, under McPadden v. N. Y. Ventral R.lt. Co., the rail) was unworthy before the time of the accident, then the defendants would be liable, but apparently not if the unroadworthiness arose afterwards. This would import a new distinction into the law of bailments, for the question would always arise whether the accident happened from unroadworthiness, or from an inevitable accident. Suppose the case of a railway car being roadworthy at the time of examination, and then suddenly becoming defective in some important part. Under the decision in McPadden v. N. Y. Central R. R. Co., it would be for the jury to say whether the company had furnished a roadworthy vehicle, and to discover this, an investigation would have to be made into the state of the car previous to the accident. But this examination must necessarily almost always stop short of perfect accuracy, since there must almost always be an interval of time between the last examination and the accident, during which no evidence is attainable, owing to the fact of the car being in motion. How, therefore, can the jury be of any service? The only construction of which the opinion in Alden v. N. Y. Central Ii.R. Co. seems capable, is that the carrier is liable at all events, and that no questions for the jury can arise. Otherwise, the highly artificial rule must be adopted that the carrier is bound to furnish a roadworthy vehicle and vehicle-worthy road at the commencement of the journey, but after that time is only liable for negligence. This division of responsibility at the different stages of the journey would not afford that "simple, plain rule" which it was the intention of the Court of Appeals to lay down.

But the cases already cited, by no means exhaust the conflict of decision in the New York courts. In Curtis v. Rochester Syracuse R.R. Co.,1 the jury had been charged at the trial, that if they " were satisfied that the accident occurred in consequence of some secret defect in the materials which could not be discovered by human foresight, then the injury was the result of a mishap, for which the defendants were not to blame, and could not be legally amerced in damages;" and in Caldwell v. Murphy? which was an action to recover damages for injuries received by the plaintiff while riding in the defendants' coach, the judge at the trial charged the jury that the defendants' were liable, unless the loss resulted from "irresistible force or inevitable accident," but added that the sole question was whether the accident was justly imputable to the negligence of the driver. The Superior Court, in refusing a motion for a new trial, said that the charge was " entirely correct."

Outside of New York, however, the current of American decision is very strong in the direction of the English — the direction indicated by the opinion of the court in Redhead v. The Midlund Railway Co.3

All these cases are agreed that unless the carrier can prove the exercise on his part of due care, he is liable in damages. As to the degree of care, which amounts to "due care," a recent Missouri case furnishes some interesting discussion. •

In Sawyer v. Uann. %- St. Jo. R.R. Co.* Holmes, J., used the following language

1 20 Barb. 282. 2 i \)aeT> 288.

« Wart v. Gay, 11 Pick. 106; Ingatts v. Bills, 9 Met. 1; McF.lroy v. Nashua i} IxmeU RR., 4 Cush. 400; Hall v. The Connecticut River Steamboat Co., 13 Conn. 319; Derwort v. Ijwmer, 21 ib. 245; McKinney v. Neil, 1 M'Lean, 540; Maury v. Talmadge, 2 ib. 157; Peck v. Neil, 3 ib. 22; Stockton v. Frey, 4 Gill, 406; Parish v. Reigle, 11 Gratt. 697; Galena <f Chicago V. R.R. Co. v. Fay. 16 111. 556; Frink v. Potter, 7 ib. 406; Hulbrook v. Utica <f S. R.R. Co., 16 Barb. 113; Frink v. Coe, 4 Greene, 565; Fdwards v. Lord, 49 Me. 279; Sawyer v. Hannibal, 4-c. R.R. Co., 37 Mo.240; Mobile tf Ohio R.R. Co. v. Thomas, (Ala.), Chicago Legal News, July 10, 1S69.

*37 Ho. 240.

with respect to the obligation of the carrier: "Various expressions are used by different authorities. The terms utmost, strictest, all human, extraordinary, have been employed. . . . These are very strong, but somewhat indefinite terms." And the learned judge goes on to say that the degree of care cannot be laid down abstractly, without consideration of the circumstances under which its exercise is called for ; that it must be in proportion to the nature, difficulty, and peril of the business; that it can scarcely be that any greater care is required than such as prudent men are reasonably expected to exercise in the particular business, under like circumstances of difficulty and danger. In other words, the term care is relative. A degree of caution which would exonerate a railroad company for liability from accidents, might by no means be sufficient to excuse one who held himself out as a common carrier by balloon."

Such terms as " all human care," or "all possible care," seem to us open to another objection somewhat different from that made by the learned judge above quoted. They exact of the carrier a degree of precaution which is, practically speaking, impossible, but which, from its theoretic possibility, only tends to confuse the minds of juries when it is offered them as a guide. No accident ever happened (except such as are occasioned by latent defects) when it could not be shown, after the fact, that a certain additional amount of precaution might have prevented its occurrence. For example, in the case of an accident to a railroad train through the burning of a bridge by the public enemy, it is plain that if "all human care " had been used the accident might have been prevented. In the use of " all human care," the company would have anticipated the possibility and guarded against it; and to direct the jury in such a case that they were not to exonerate the defendants, unless they are satisfied that all human care had been used, is tantamount to directing a verdict for the plaintiff. We do not say that the burning of a bridge by the public enemy necessarily excuses the carrier: whether it does or not, must depend upon circumstances. To take another instance, suppose the frequent case of an accident to a passenger through the breaking of an axle. The plaintiff proves the accident and its cause; the burden shifts, and the defendant must now exonerate himself. The jury are directed that if the evidence introduced by him is sufficient to convince them that "all human care" was taken, he will not be liable. But it is almost always possible for the plaintiff to show that some further examination, some additional precaution, would have enabled the defendant to secure the passenger's safety. Under these circumstances, it cannot be said that all possible care was taken, and yet it may well be that all the care was taken which prudence required. If the jury followed their instructions literally, they would be obliged to find a verdict for the plaintiff, irrespective of this important fact.

A recent Hlinois case illustrates very well the necessity of a careful definition of the carrier's liability.

In Frink v. Potter,1 it was in dispute whether or no the accident happened through an injury to the axle-tree of a coach, caused by the action of frost. On the trial, an instruction was given to the effect that " if the coach might have been constructed in a manner that would have obviated all danger from frost, and still have been suitable for the business of carrying passengers; or if the defendants, by housing and taking the utmost care of their coach when it was not running, could have prevented the action of the frost, then, even if the axle-tree did break from frost, that would not constitute a defence;" but the court above held this instruction bad, as being likely to mislead the jury, and that the question whether proper precautions had been used, should have been left entirely to them.

That courts should occasionally exhibit a want of precision in their statements of

i 17 111. 406.

the extent of the liability in question, is not to be wondered at, when we find that as to that fundamental point, the nature of the liability itself, so excellent a text-writer as Axgell contradicts himself almost in terms, in the space of a few pages. On page 458 we find -the following language: —

"The true doctrine upon the subject unquestionably is, that if there is any defect in the original construction of a stage-coach, as for example, in an axle-tree, although the defect be out of sight, and not discoverable upon a mere ordinary examination, yet if the defect might be discovered by a more minute examination, and any damage is occasioned to a passenger thereby, the coach proprietors are answerable therefor; and the same rule will apply to any other latent defect, which might be discovered by more minute examination, which renders the vehicle not landworthi/, and damage thereby occurs to any passenger."

Yet on page 456 it is said that " there is as much, if not more, reason why the rules of the common law above laid down as applicable to stage-coaches, should be applicable to the modern mode of conveyance by railroads, as they take the place of other modes of conveyance in the carrying of passengers. When the carriage is by railroad, the railroad, company impliedly warrants the road itself to be in good travelling order, and fit for use, and impliedly promises all persons who agree to become passengers, to provide roadworthy engines and carriages," &c.

It will be seen that both of the above statements cannot bo correct; and in the fourth edition of the work cited, Mr. Laturof points out the incongruity between them as follows :1 "The statement of the text that there is an implied warranty on the part of a railroad company is incorrect, and the cases cited do not support the proposition. The question is whether the company has been guilty of negligence." 2

In actions like those under consideration here, the question of the burden of proof is continually arising. Is it necessary for the plaintiff to prove the defendants' negligence, and how far must he go before the burden shifts 1 It has been said in many cases, that the plaintiff will be required to prove only the fact of the contract to carry, and the happening of the accident; that on proof of those facts, a prima fade case is made, but that the defendant must then rebut the presumption of negligence by facts showing due care.3

But in Curtis v. Rochester Syracuse R.R. Co.,* Selden, J., says, that in order to make > primia facie case, there must be something more than mere proof of an accident: there must be evidence to show that the accident was presumably caused by some deficiency in the means of carriage furnished by the carrier; and that the cases in which it has been said that a presumption of negligence arises from mere proof of an accident, will appear on examination "not to conflict materially with these principles." "Thus," he continues, "in Christie v. Griggs it was proved that the accident happened from the breaking of an axle-tree. So, in Stokes v. SaJtonstall, the circumstances proved in connection with the accident were sufficient to create a presumption of negligence."

1 P. 458, n. (a).

2 In Boyce v. Anderson, 2 Pet. 150, Marshall, C. J., is reported to have said that carriers of passengers were liable only for "ordinary neglect." But in Stokes v. Saltonstall, 13 Pet. 181, it was Eaid that the decision in Boyce v. Anderson only applied to slaves, as belonging to a class intermediate between passengers and goods: it is difficult, however, to find any thing in the decision to support this construction. But at any rate, the rule laid down as to passengers, in Stokes v. Saltonstall, is that the carrier contracts, as far as human care and foresight can go, to carry them safely.

* Christie v. Griggi,2 Camp. 79; Stokes v. Saltonstall, 18 Pet . 192; McKenney v. Neil, 1 McLean, 640, 649; Stockton v. Frey, 4 Gill, 406; Farish v. Reigle, 11 Gratt. 697. « 18 N. Y. 634.

And this must probably be taken as a necessary limitation of the rule laid down. The mere proof of the happening of the accident shows nothing. It may have happened from a thousand causes beside that of negligence in the carrier. For example, it may have been the direct consequence of gross negligence on the part of the plaintiff. How, then, can any presumption be said to arise 1 The presumption must arise only on some proof implying negligence on the part of the defendants. Substantially, the same rule is laid down by Holmes, J., in Sawyer v. Harm. S- St. Jo. R.R. Co. l

137 Mo. 240. In Bird. v. Great N. R. Co., 28 L. J. Exch. 15B, Pollock, C. B., says that, whether proof of the occurrence of the injury " makes out a prima facie case for the plaintiff or not, depends all on the nature of the accident: as, for instance, if it nrises from a collision of different trains on the same line, then it may be so. Here it was otherwise: the accident was of a nature consistent with the absence of negligence." See, too, S. P. Dawson v. Manchester, Sheffield <f Lincolnshire Railway Co., 5 L. T. 682 (Exch.); Great Western Railway Co. of Canada v. Braid; Same v. Fawcett, 1 Moore P. C. C. n. s. 101.

DIGEST OF THE ENGLISH LAW REPORTS FOR MAY, JUNE, AND JULY, 1869.

Account.

A., the owner of a patent for a loom, agreed with B. that B. should make and sell such looms; A. to receive as a' royalty, not to exceed £20, the amount for which the looms were sold above £45. B.'s charges were not to exceed £45, and one-tenth of the royalty. Held, that A. could not bring a bill in equity for an account against B., as there was no agency in which a fiduciary position was created.

A single receipt by B. of money due to A. did not alter the case.—Moxon v. Bright, L. R. 4 Ch. 292. See Election; Rerellion.

Acquiescence. — See Bank. Action. — See Award, 2; Conflict Of Laws. Administration. — See Executor And Administrator. Admiralty. — Sec Collision; Salvage Adultery. — See Alimony, 2. Affidavit. — See Evidence, 3; Interpleader. Agent.—See Account; Cheque; Collision, 2; Company, 4; Libel, 1; Mortgage, 4; Rerellion. Agreement. — See Contract.

Alimony.

1. A respondent is not entitled to alimony while she is living with the corespondent as his wife, and supported by him. — Holt v. Holt, L. R., 1 P. & D. 610.

2. The court refused to make any order for alimony, pendente lite, after a decree nisi had been obtained for a dissolution of marriage by reason of the wife's adultery, the wife having allowed nearly a year to elapse after the commencement of the suit before she filed her petition for alimony. —Noblett v. Noblett, L. R, 1 P. & D. 651.

Amendment. — See Will, 6.
Ancient Light. — See Light.
Appeal. — See Collision, 2; Nuisance, 2.

Appointment.

1. A leasehold for lives was settled upon trust for A. for life, with remainder to defendant. A. renewed the lease to himself and his heirs, and purchased the fee which was conveyed in trust for him. Then he made an oral demise for a year, and died between two rent days. Held (reversing the decision of Stuart, V.C.), that the rent was not apportionable either under St. 11 Geo. H. c. 19, or

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