vented or detected.

In the result we come to the conclusion that the case of the plaintiff, so far as it relies on authority, fails in precedent; and so far as it rests on principle, fails in reason. Consequently, the judgment of the Court of Queen's Bench in favor of the defendants will be affirmed.

Judgment affirmed.

The exhaustive opinion of the learned court in this case no doubt settled, at least for England, the extent of the liability of common carriers of passengers. Indeed, the opinion presents so thorough a review of all the English cases, that further criticism seems superfluous. As to the American law on this subject, however, some further light may perhaps be gained by a more particular review of two or three decisions. Some of those cited in Redhead v. The Midland Railway Co., from the New York reports, present some curious features.

Hegeman v. The Western R.R.1 was an action brought to recover damages for an injury received by the plaintiff while a passenger upon the defendants' railroad. The court adopt the rule laid down in Ingalls v. Bills; 2 and the case seems to have been left to the jury throughout, on the question of negligence.

The decision was subsequently affirmed in the Court of Appeals.3 The accident happened through the presence of a flaw in one of the axles of the defendants' car ; careful examination had been made, but it appeared that the flaw might have been discovered by means of a test which manufacturers were in the habit of applying, but which had not been applied in this case.

DENIO, and MARVIN, JJ., dissented from the opinion of the majority of the court, on the ground that, as the manufacturers were not servants of the company, the latter could not be held responsible for their negligence.

This decision went much further than any that can be found outside of New York, as it virtually makes the carrier warrant the passenger against the negligence of the manufacturer. It does not certainly go on the ground of a general warranty like that which the law imposes in the case of common carriers of goods; but why it stops short of that general warranty, it is difficult to see. Why, it may be asked, should the court single out a certain sort of defect (such as might have been discovered by the manufacturer's knowledge of the existence of a particular test), and say that that kind of defect marked the limits of the carrier's liability? With deference to the court, the dissenting opinions of DENIO and MARVIN, JJ., appear to us more accordant with principle and authority than that of their associates.

Alden v. The New York Central R.R. Co. was an action for damages arising from an accident caused by the breaking of the axle of defendants' car. The weather was extremely cold, and there had been an unusual severity and continuance of it before the accident; such weather, it was proved, crystallizes iron, and renders it brittle. There was a small, old crack in the axle, so covered by the wheel, that it would have been impossible to discover it without taking the wheel off; and to replace it would require a power equivalent to twenty-five or thirty tons. Some of the witnesses, who were experts, testified that they knew of no way of discovering such a crack without destroying the axle. The plaintiff had a verdict and judgment, and the defendant appealed. The opinion of the court above was delivered by GOULD, J., who referred to Hegeman v. Western R.R. and after stating the case, said, "In the case before us, so far as the defect in the axle (the hidden crack) is concerned, it is clearly, and without any contradiction, proved that it was absolutely out of the reach of discovery by any practicable examination of the axle, unless by taking off the wheel, with great difficulty and labor; that is, 'taking the machinery to pieces.' Tried by the Hegeman

1 16 Barb. 353.

29 Met. 1..

8 3 Kern. 9.

4 26 N. Y. 102.

case, it would seem that this defendant could not be responsible for an injury caused, as the one sued for seems to have been, by that defect, as it is positively testified 'that it would not be safe to run at all an axle cracked as this was' found to have been on examination after the accident.

"There has, however, always been something unsatisfactory in the decision of the Hegeman case, arising from the difficulty in finding any thing to call negligence in the acts of the company as there proved; and we can probably place the result of that case on a surer and more satisfactory ground, as well as fix a test of much easier application, by referring to another case. In Sharp v. Grey (9 Bing. 457; 2 M. & Scott, 620), the proprietor of a stage-coach was sued for injuring a passenger by the overturning of his coach from the breaking of an axle. The axle was of iron, secured and strengthened by parallel wooden strips screwed on and around it; and, before starting, it was carefully examined, and showed no flaw. After the accident it was examined, and it then appeared that it had been cracked for some time, but the crack was in such a place that it was not possible for any strictness of examination to find it without taking off the wooden strips, the frequent taking off of which would have injured the axle, and rendered it less safe than it would be if those pieces of wood were left undisturbed.

Yet, in that case, a verdict of £500 was rendered against the defendant, and the court in banc refused to set it aside; holding unanimously (not that the defendant was guilty of any negligence, but) that he must be held accountable, in every event, to furnish a roadworthy coach; and that if the event proved it not to have been so, he must suffer the consequences. And though this may seem a hard rule, it is probably the best that can be laid down, since it is plain, and of easy application, and whence once established, is distinct notice to all parties of their duties and liabilities. And, practically, it will be likely to work no more burdensome results to carriers of passengers than to leave them, with an uncertain criterion of responsibility, to the trouble and expense of strongly litigated contests before juries."

But in Sharp v. Grey,1 the question of negligence was left to the jury, a disposition of the case which would have been, as the learned court in Redhead v. The Midland Railway Co. intimate, utterly out of place, if there had been an absolute warranty.

The question was again raised in McPadden v. N.Y. Central R.R. Co.,2 an action brought to recover damages for an injury arising from an accident caused by a broken rail. The counsel for plaintiff asked that the case might go to the jury upon the question whether the rail was broken before the train, on which the plaintiff was, came upon it. The court refused, and the plaintiff excepted. The court then, on motion of defendant, nonsuited the plaintiff, who again excepted.

The Supreme Court granted a new trial, holding that the question should have been left to the jury. The rule is now established in this State, that a common carrier of persons is bound to provide roadworthy vehicles, irrespective of any question of negligence. (Alden v. N. Y. Central R.R. Co., 26 N. Y. 102). This is a simple, plain, and eminently sensible rule, and it should be applied in all cases falling clearly within the principle. The same principle would require the carrier who furnishes his own road, and has secured to him the exclusive possession and control of it, to provide a vehicle-worthy road: that is, a road adapted to the safe passage of the vehicle used over it; a road of continuous, unbroken rails for each and every train to enter upon in its passage over the road. Strictly speaking, the rail is no part of the vehicle, though in some sense it may be said to be so. But, however this may be, the rail is clearly a part of the machinery by which the vehicle is operated, and falls directly within the principle."

This decision gives a curious interpretation of Alden v. N. Y. Central R.R. Co. As 2 47 Barb. 247.

12 M. & Scott, 620.

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. Central R.R. 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 R.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 Midland 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. Hann. & St. Jo. R.R. Co., HOLMES, J., used the following language

8 Ware v. Gay, 11 Pick. 106; Ingalls v. Bills, 9 Met. 1; McElroy v. Nashua & Lowell R.R., 4 Cush. 400; Hall v. The Connecticut River Steamboat Co., 13 Conn. 319; Derwort v. Loomer, 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; Farish v. Reigle, 11 Gratt. 697; Galena & Chicago U. R.R. Co. v. Fay, 16 Ill. 558; Frink v. Potter, 7 ib. 406; Holbrook v. Utica & S. R.R. Co., 16 Barb. 113; Frink v. Coe, 4 Greene, 555; Edwards v. Lord, 49 Me. 279; Sawyer v. Hannibal, c. R.R. Co., 37 Mo. 240; Mobile & Ohio R. R. Co. v. Thomas, (Ala.), Chicago Legal News, July 10, 1869.

4 37 Mo. 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 Illinois case illustrates very well the necessity of a careful definition of the carrier's liability.

In Frink v. Potter, 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

1 17 Ill. 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 ANGELL contradicts himself almost in terms, in the space of a few pages. On page 453 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 landworthy, 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 be correct; and in the fourth edition of the work cited, Mr. LATHROP 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? 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 facie 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 a 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. Saltonstall, 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 said 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.

2 Christie v. Griggs, 2 Camp. 79; Stokes v. Saltonstall, 13 Pet. 192; McKenney v. Neil, 1 McLean, 540, 549; Stockton v. Frey, 4 Gill, 406; Farish v. Reigle, 11 Gratt. 697.

4 18 N. Y. 534.