LIABILITY OF CARRIER FOR INJURIES TO PASSENGERS -ANALYSIS OF DISCUSSION

178. The liability of the common carrier of passengers for injury to the passenger is both theoretically and practically the most important of the carrier's responsibilities. Though (save as to stational facilities) the standard is the same by which the carrier's duty towards the passenger is measured, the application of this standard in practical cases reveals distinctive difficulties in the varying phases of the activities of the carrier.

In spite of the uniformity of the standard, as indicated above, for judging here the duty of the passenger carrier, this duty is revealed in such widely differing fields of the carrier's activities that, after a discussion of this duty in general, these fields require separate and distinctive notice. Thus the duty of the carrier to furnish proper instrumentalities of transportation and the duty to protect a passenger from the assaults of his fellow passengers necessarily present somewhat different questions, calling for separate treatment. The subject of the carrier's liability for injuries to the passenger will be discussed under the following analysis:

(a) In general.

(b) Means of transportation.

(c) Stational facilities.

(d) Duties in connection with transportation.

(e) Servants of the carrier.

(f) Protection of the passenger.

(g) Contributory negligence of the passenger.

(h) Presumption and burden of proof as to negligence.

(i) Carriers by water.

The last two sections of the chapter are devoted to the limitation by contract of the liability of the common carrier for injuries. to passengers and the liability of the carrier to persons other than passengers.

SAME-IN GENERAL

179. The common carrier is not an insurer of the passenger's safety, but is liable for injuries to the passenger only when these are due to the carrier's negligence; such negligence here is the failure to exercise the highest degree of care that is reasonably consistent with the practical conduct of the carrier's business.

The common carrier of passengers, unlike the carrier of goods, is not an insurer. The former's liability is measured in terms of negligence, and not of insurance." The law imposes liability on the carrier of goods, regardless of his fault, unless the loss or injury is due to one of the excepted causes. The passenger carrier is liable only when he is at fault; in other words, when he is guilty of negligence. For this difference, many reasons have been assigned, including the volition and intelligence of the passenger, the absence of possible collusion between the carrier and wrongdoers (as the injury or death of the passenger involves no profit to the carrier), the probable refusal of the carrier to engage in passenger traffic if it involved an insuring liability, and the fact that while the goods are beyond the field of the carrier's knowledge, the passenger is necessarily present at, and to some extent cognizant of, the accident or wrong to which his injury is due.

The passenger carrier, accordingly, is liable for injury to the passenger only in case of negligence." Here, as elsewhere, negligence implies the breach of a legal duty." The extent of this duty, therefore, created by law as arising from the relation of common carrier and passenger, must next be defined. This has been done in varying language, but substantially the same idea underlies these apparently differing expressions. If the carrier lives up to the standard of care by which his duty is measured, he is not negligent, and hence not liable. If he fail in this standard, however, then he is guilty of a breach of legal duty, constituting actionable negligence, which makes him liable for the proximate damage resulting therefrom.

75 White v. Boulton, Peake (Eng.) 113 (this is the first case on the subject); Hubbard, J., in Ingalls v. Bills, 9 Metc. (Mass.) 1, 43 Am. Dec. 346. See, also, Crofts v. Waterhouse, 11 Moore (Eng.) 133; BENNETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322; Readhead v. Railway Co., L. R. 2 Q. B. (Eng.) 412, L. R. 4 Q. B. 379; Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537, 31 Am. Rep. 321. See, also, cases cited in the succeeding notes.

76 Ante, § 116.

77 Stockton v. Frey, 4 Gill (Md.) 406, 45 Am. Dec. 138; Doyle v. Boston & A. R. Co., S2 Fed. 869, 27 C. C. A. 264; Sanderson v. Frazier, 8 Colo. 80, 5 Pac. 632, 54 Am. Rep. 544; Stokes v. Saltonstall, 13 Pet. (U. S.) 181, 10 L. Ed. 115; Gilbert v. West End St. Ry. Co., 160 Mass. 403, 36 N. E. 60; Taillon v. Mears, 29 Mont. 161, 74 Pac. 421, 1 Ann. Cas. 613; Clerc v. Morgan's Louisiana & T. R. & S. S. Co., 107 La. 370, 31 South. 886, 90 Am. St. Rep. 319; South Covington & C. St. R. Co. v. Harris, 152 Ky. 750, 154 S. W. 35.

78 See 1 Fetter on Passenger Carriers, §§ 3-7, and cases cited, giving various definitions and descriptions of the meaning of negligence in this connec

The care or diligence exacted of the carrier in looking out for the passenger's safety is most often described by the terse and striking phrase "as far as human care and foresight will go." " Other expressions are: "Utmost care under the circumstances short of a warranty of the safety of the passenger;" so "the utmost care and diligence which human prudence and foresight will suggest." $1 These and other expressions of similar import 82 will clearly indicate how exacting is the law of the passenger carrier and how stringent his liability, though falling far short of the liability of an insurer. Ample warrant for this strictness, however, is found in considerations of public policy growing out of the interest which the state or government, as parens patriæ, has in protecting the lives and limbs of its citizens. These considerations apply with peculiar force to passengers on trolley cars, railroad trains, and steamboats, due both to the number of persons who of necessity daily employ them and the danger and speed involved in their operation. This duty is the same to gratuitous passengers as to passengers who pay.88

These expressions defining the carrier's duty are not to be taken literally as meaning that the carrier must for the passenger's safety provide every appliance that the human brain can originate and human brawn produce. The absurdity of this is apparent in its

79 Sir Jas. Mansfield in Christie v. Griggs, 2 Camp. (Eng.) 79.
80 Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898.

81 Palmer v. Delaware & H. Canal Co., 120 N. Y. 170, 24 N. E. 302, 17 Am. St. Rep. 629.

82 For other expressions outlining the nature and extent of the duty of the common carrier of passengers, see Richmond & D. R., Co. v. Greenwood, 99 Ala. 501, 14 South. 495; Holly v. Atlanta St. R. R. Co., 61 Ga. 215, 34 Am. Rep. 97; Murray v. Lehigh Val. R. Co., 66 Conn. 512, 34 Atl. 506, 32 L. R. A. 539; VAN DE VENTER v. CHICAGO CITY R. CO. (C. C.) 26 Fed. 32, Dobie Cas. Bailments and Carriers, 377; Furnish v. Missouri Pac. Ry. Co., 102 Mo. 438, 13 S. W. 1044, 22 Am. St. Rep. 781; Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 55 N. W. 270, 20 L. R. A. 316, 38 Am. St. Rep. 753; Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; LOUISIANA & N. W. R. CO. v. CRUMPLER, 122 Fed. 425, 59 C. C. A. 51, Dobie Cas. Bailments and Carriers, 326; Haas v. Wichita R. & Light Co., 89 Kan. 613, 132 Pac. 195, 48 L. R. A. (N. S.) 974.

83 See ante, p. 530. See, also, Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 468, 14 L. Ed. 502 (leading case); Rose v. Des Moines Val. R. Co., 39 Iowa, 246; Simmons v. Oregon R. Co., 41 Or. 151, 69 Pac. 440, 1022; Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29 Atl. 1069, 25 L. R. A. 491; Austin V. Railway Co., L. R. 2 Q. B. (Eng.) 442.

84 Pershing v. Chicago, B. & Q. Ry. Co., 71 Iowa, 561, 32 N. W. 488; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898; Libby v. Maine Cent. R. Co., 85 Me. 34, 26 Atl. 943, 20 L. R. A. 812; Birmingham Ry., Light & Power Co. v. Barrett (Ala.) 60 South. 262. "It sometimes happens

very statement. The rigor of the rule is necessarily tempered by considerations that are in their nature eminently practical, that are found in the carrier's pursuit of his calling. Nothing is required that is impracticable in the light of the actual conduct of the carrier's business under existing conditions. The standard, just as the circumstances under which it is to be applied, must needs be real, not Utopian. Thus the duty of the carrier is clearly expressed as the highest degree of care that is reasonably consistent with the practical conduct of the carrier's business.85

It is thus clear that passenger carriers are not required to use every possible precaution, for such a requirement, in many instances, would defeat the very objects of their employment. There are certain dangers that are necessarily incident to certain modes of travel, and these the passenger assumes when he elects to adopt such mode. Passenger carriers are not required, for instance, to use steel rails and iron or granite cross-ties, because such ties are less liable to decay, and hence safer than those of wood; nor need they have track walkers for each mile of road or lookouts at every bridge. All of these would make for the passenger's safety, but would probably bankrupt the railroad and make its continued operation impossible. Thus the expense is always an important item in determining whether a certain scheme or appliance should have been adopted by the carrier. But the law does emphatically require everything necessary to the security of the passenger that is reathat a derailed train is precipitated from a high embankment, and the lives of its passengers endangered or destroyed. Accidents of that character could be avoided by constructing all railroad embankments of such a width that a derailed train or car would come to a stop before reaching the declivity. But this would add immensely to the cost of constructing such improvements, and, if required, would in many cases prevent their construction entirely. If passenger trains were run at the rate of ten miles per hour, instead of from twenty-five to forty miles, it is probable that all danger of derailment would be avoided. But railroad companies could not reasonably be required to adopt that rate of speed. Their roads are constructed with a view to rapid transit, and the traveling public would not tolerate the running of trains at that low speed." Pershing v. Chicago, B. & Q. Ry. Co.,

supra.

85 Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898; Dunn v. Grand Trunk Ry. Co. of Canada, 58 Me. 187, 4 Am. Rep. 267; HEGEMAN v. WESTERN R. CORP., 13 N. Y. 9, 64 Am. Dec. 517, Dobie Cas. Bailments and Carriers, 329; Kansas Pac. Ry. Co. v. Miller, 2 Colo. 442; Pershing v. Chicago, B. & Q. Ry. Co., 71 Iowa, 561, 32 N. W. 488; Chicago, P. & St. L. Ry. Co. v. Lewis, 145 Ill. 67, 33 N. E. 960; Pittsburg, C. & St. L. Ry. Co. v. Thompson, 56 Ill. 138; Gadsden & A. U. Ry. Co. v. Causler, 97 Ala. 235, 12 South. 439; Louisville & N. R. Co. v. Kemp's Adm'r, 149 Ky. 344, 149 S. W. 835; Thayer v. Old Colony St. R. Co., 214 Mass. 234, 101 N. E. 368, 44 L. R. A. (N. S.) 1125.

sonably consistent with the practical operation of the business of the carrier, and the means of conveyance employed.""

88

The highest degree of practicable care, in the light of what has been said, is necessarily a phrase of intense relativity, for it must always be applied in the light of the peculiar conditions in each instance.87 Thus the theoretical standard is the same in the case of passengers on freight trains as it is in the case of passengers on trains designed solely for passenger traffic. But many precautions and appliances that are eminently practicable and required on passenger trains are by that same token utterly impracticable as to freight trains. Again, practicable care, however high, must be judged in the light of the situation as it appeared (or should have appeared) to the carrier before the accident happened." The car

89

86 Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898; Gilbert v. West End St. Ry. Co., 160 Mass. 403, 36 N. E. 60; Libby v. Maine Cent. R. Co., 85 Me. 34, 26 Atl. 943, 20 L. R. A. 812; Meyer v. St. Louis, I. M. & S. R. Co., 54 Fed. 116, 4 C. C. A. 221; Feary v. Metropolitan St. Ry. Co., 162 Mo. 75, 62 S. W. 452; Steverman v. Boston Elevated Ry. Co., 205 Mass. 508, 91 N. E. 919.

87 Russ v. The War Eagle, 14 Iowa, 363; Budd v. United Carriage Co., 25 Or. 314, 35 Pac. 660, 27 L. R. A. 279; West Chicago St. Ry. Co. v. Kromschinsky, 185 Ill. 92, 56 N. E. 1110; Romine v. Evansville & T. H. R. Co., 24 Ind. App. 230, 56 N. E. 245; Stierle v. Union Ry. Co., 156 N. Y. 70, 50 N. E. 419; Burt v. Douglas County St. Ry. Co., 83 Wis. 229, 53 N. W. 447, 18 L. R. A. 479; Mitchell v. Marker, 62 Fed. 139, 10 C. C. A. 306, 25 L. R. A. 33; STEELE v. SOUTHERN R. CO., 55 S. C. 389, 33 S. E. 509, 74 Am. St. Rep. 756, Dobie Cas. Bailments and Carriers, 328; Kearney v. Seaboard Air Line R. Co., 158 N. C. 521, 74 S. E. 593; Thayer v. Old Colony St. R Co., 214 Mass. 234, 101 N. E. 368, 44 L. R. A. (N. S.) 1125.

88 CHICAGO & A. R. CO. v. ARNOL, 144 Ill. 261, 33 N. E. 204, 19 L. R. A. 313, Dobie Cas. Bailments and Carriers, 332; Missouri Pac. Ry. Co. v. Holcomb, 44 Kan. 332, 24 Pac. 467; Sprague v. Southern R. Co., 92 Fed. 59, 34 C. C. A. 207; Southern Ry. Co. v. Cunningham, 123 Ga. 90, 50 S. E. 979; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898; STEELE v. SOUTHERN R. CO., 55 S. C. 389, 33 S. E. 509, 74 Am. St. Rep. 756, Doble Cas. Bailments and Carriers, 328.

89 Stoody v. Detroit, G. R. & W. Ry. Co., 124 Mich. 420, 83 N. W. 26; Southern Ry. Co. v. Cunningham, 123 Ga. 90, 50 S. E. 979; Tibby v. Missouri Pac. Ry. Co., 82 Mo. 292; Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860; Crine v. East Tennessee Ry. Co., 84 Ga. 651, 11 S. E. 555; Fisher v. Southern Pac. R. Co., 89 Cal. 399, 26 Pac. 894; STEELE v. SOUTHERN R. CO., 55 S. C. 389, 33 S. E. 509, 74 Am. St. Rep. 756, Dobie Cas. Bailments and Carriers, 328; Tickell v. St. Louis, I. M. & S. R. Co., 149 Mo. App. 648, 129 S. W. 727.

90 Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306; Id., 89 N. Y. 627; Id., 125 N. Y. 299, 26 N. E. 327; Fredericks v. Northern Cent. R. R., 157 Pa. 103, 27 Atl. 689, 22 L. R. A. 306; Libby v. Maine Cent. R. Co., 85 Me. 44, 26 Atl. 943, 20 L. R. A. 812; Garneau v. Illinois Cent. R. Co., 109 Ill. App. 169.

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