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father than with that of other carriers of passengers; because the results of an accident, when it does occur, are very often so much more extensive and frightful in this than in most other modes of conveyance, whilst, at the same time, they are more easily preventible than in sea carriage. The contrast has been attempted to be drawn, between the case of shipowners and railway companies as to responsibility in cases of loss or destruction of property, &c., but the parallel seems to us not to hold. There is this grand distinction ---the shipowner is more or less at the mercy of the winds and the waves-forces that brook no obedience to man's power : that is not by any means the case of the railway proprietor, who has indeed a servant of gigantic power to work for him, but a power which is not beyond control if the proper and well-known means be taken. The case of the owners of sea steamers is more nearly assimilated by the law to that of the companies accordingly. To complain, as is loudly done by the railway interest, that shipowners are liable, in case of loss in collision, only so far as the value of ship and freight extends ; and that therefore they are placed in an unfair condition as compared with the companies, is hardly quite and to the letter tenable. The shipowners' liability is so limited in respect of damage done, &c., " without his fault or privity;" the accidents that are chargeable upon the companies, without limitation of the extent of damage, are always proved to be owing to "wrongful act, neglect, or default,” on the part of the company. Upon the same proof we apprehend the shipowner is liable for damage to property to any extent. The difference with respect to passengers has been introduced and maintained in consideration of railways having become the highroads of the kingdom, along which vast multitudes have no choice but to pass in pursuit of their daily business and callings. By others than the railway interest, Lord Campbell's act has been called the safeguard of all our lives, and the only security that the public have against casualties. At any rate, it seems to be at once difficult to suggest any substitute for the present system, or to improve it by additions of any kind. The suggestion of
1 See Evid, of Right IIon. Robert Lowe, pp. 59 57, 44.
the committee of 1853, that there should be on each railway registered officers, &c., with a view to the better preventiou of casualties, and the defining and bringing home of responsibilities more closely, has never been acted upon; in fact, the plan fell through as soon as it was ventilated," the principal objection being, that it is wholly contrary to principle, and generally unauthorized by practice, for the government to interfere in the details of commercial undertakings. The course having been taken by the legislature, of leaving these undertakings to be carried on, not as government roads, but as joint-stock mercantile concerns, in consistency they must be allowed to continue as they were allowed to commence. This appears to be the opinion of the persons best qualified to have gained an acquaintance with the numerous facts and considerations on which alone a sound judgment can be formed on such a point. On the other hand, a strong opinion has been expressed that railway property is in that condition, at least a great portion of it, that it is very desirable that it should be under the control of the State, and that such must come to be the case before many years elapse. In the meantime it seems not wholly improbable, that the suggestion of an amendment by making additions which, it is stated, time has shown to be necessary to the Railway Clauses Consolidation Act, or some plan of that kind, may be adopted; by adding to that act several clauses which are now introduced into all railway bills,so as to bring it up to the requirements of the present day. The committee on accidents also recommend in their report, the giving of power to the Board of Trade for the prevention of accidents; but the policy, we confess, seems to us doubtful, and certainly no clear plan upon which such power should be given, was traced out in the evidence of the witnesses who were practically acquainted with the subject. At present, the Board of Trade, from the moment that a line comes into actual operation, has no power whatever, except that of sending an officer to in
1 See Evid. before Committee of House of Commons, 1858, on Railway Legislation, pp. 28, 29. Evid. of E. Denison, M.P., before same Committee,
pp. 60, 61.
? See Captain Galten's Evid., id. p. 8. · Mr. Booth's Evid., 1: 34.
spect, under 3 and 4 Vict. c. 97, s. 5, and 7 and 8 Vict. c. 85, s. 15: the inspectors are expressly disabled from exercising any power of interference in the affairs of the company. It is needless to say that inquiries before magistrates, or on occasion of death before a coroner's jury, are totally unfitted for the determination of any thing likely to be of service to prevent future accidents. The Board of Trade has at present no power to enforce precauțions for that purpose. In case of a system of inspection, and certificate of fitness for safe working of the plant or the way, to be renewed from time to time on fresh inspections, if the Board saw fit, or withheld if it did not, the objection would, no doubt, be taken, which is so usually taken by the owners of steamers with the Board of Trade, which is entrusted with a like inspection with regard to them—“You inspeet our steamers, and satisfy yourselves that they are proper to go to sea; how unjust then to make us suffer, in case any accident happens, when you were satisfied yourselves,” using this argument as a lever, to hoist off from themselves the responsibility for injuries and loss.
But, whether on good grounds or no, the railway companies complain bitterly of the losses accruing to them by the operation of Lord Campbell's Act. They say the value of life under it is measured by a class standard. They put their case this way: A high public functionary takes his ticket for a journey of halfa-dozen miles, at a cost of a shilling; there being in the same train a mechanic, setting out on a journey of a hundred miles, having paid ten shillings fare. The train meets with an accident and both are killed. Then, it is said, the life of the rich man, holding public offices of emolument, &c., is worth twenty thousand to his family, and that amount the jury will give; but to the poor family, who are not able to establish a pecuniary loss, the jury will give no compensation. This is the ground taken. Our readers will judge for themselves how far experience shows it to be warranted. The sums paid in compensation are no doubt very large, the aggregate of such sums-by far the larger part of which, however, are paid under arbitration, and not by award of a jury-during the last ten years, we find to be no less than
£412,349 10s. 10d.; and there is much said of railway depreciation, or at least the fluctuation of such property of late years, and the falling off of dividends. But still, in spite of all this, railway enterprise does not appear to flag; still there seems to be a field of unworked harvest, in the estimation of the railway world—still corn in Egypt; for, after all, the number of bills for railways in the session of 1859, was 172, of which 129 were to authorize new works; of these 70 were by new companies, 59 by existing companies. The total length is 1129 miles.
Nevertheless, that juries in some places, and that some judges, are more inclined than others to take unfavourable views, as against the companies, is notorious. It is also stated to be considered that the Railway, &c., Traffic Act (founded on the 7th Resolution of the House of Commons Committee of 1853), as administered in the Court of Common Pleas, has not proved satisfactory, from the difficulty, as it appears, of a court of law interfering with good effect in railway management. The whole question, however, of railway responsibility is so wide, and various, and complex, that there is no wonder perhaps to find a great difference of opinion entertained amongst lawyers upon it. Some judges have held that the occurrence of a railway accident is primâ facie evidence of negligence on the part of the company, whilst other judges have expressed their inability to concur in such ruling. For ourselves we should wish to see the question of railway responsibility, of whatever character or class, whether as to goods or passengers, dealt with by the courts in the spirit indicated in a most remarkable judgment of a learned judge in a late case “ As the profits from carrying depend much upon the contracts for carrying, and as railway companies, like other carriers, are perpetually infested by attempts at overreaching and fraud, to be defeated only by vigilance in making con
Report of Committee on Railway Accidents, Appendix, p. 195. · Evid., pp. 21, 22, compare Id., p. 52. See also Evid. before Committee on Railway, &c., Legislation, pp. 21, 24.
3 Parliamentary Paper, Session 1859, No. 6, p. 4. 4 Evid. before Coinmittee of 1858, on Railway Legislation, p. 21, and see 68.
5 M•Manus v. The Lancashire and Yorkshire Railway Company, 5 Jur. N.S. 647. Exch. Ch.
VOL. VIII. NO. XV.
tracts, and by the protection of the law in enforcing them, an intention to make their contracts uncertain appears to have the evil of taking from this property a security which belongs to all other property in trade. The evil also is greater in proportion as the contingency is uncertain; and the test of the just and reasonable, in the person who happens to be the judge, is peculiarly uncertain. Some judges seem to have thought it just that the carrier should always pay for every damage and loss. In the minds of other judges the just and reasonable is tested by an intuitive perception of right known only to themselves. Some judges may think that a party to a bargain should take care of his own interest, and that, if he makes a promise, it is just that he should keep it. Other judges may attempt to know the interest of railways and customers respectively, and try the reasonableness of contracts by this knowledge ; but their situation makes such knowledge almost impossible. Upon the argument, this supposed hardship on the companies was said to be justified by the assumption that carriers have a monopoly ; and Jervis, C. J., 18 C. B. 829, says, “The monopoly created by railways compels the public to employ them, and therefore the legislature has imposed securities on them." It is true that railway proprietors have produced accommodation so excellent, that the public prefer it to any other ; but that for that reason the prejudice against monopolies should be brought against railways, is not right. In monopolies, the seller of a bad article, by virtue of a grant, compels the buyer to pay too much ; here, the buyer chooses an article on account of its goodness, and claims to compel the seller to take too little. The public has granted nothing to railway companies without exacting full price; their act, their land, and their works are all paid for. Subject to the conditions imposed originally, they have the same rights of property as other owners ; and confiscation of any of those rights is not justified by an unfounded imputation of monopoly. The notion, that customers of railways require protection, on account of incapacity to resist oppression, is not more true than the notion, that against a large proportion of customers railway companies stand in nced of every aid the law can afford.”