est possible care and diligence," "the most perfect care of a cautious and prudent man," and other similar phrases, the real meaning intended by them all is that the care and circumspection to be required is the utmost which can be exercised under Texas: Railroad Co. v. Welch, 86 Tex. 203, 24 S. W. Rep. 390, 40 Am. St. Rep. 829, citing Hutchinson on Carr.; Texas, etc., Ry. Co. v. Davidson, 3 Tex. Civ. App. 542, 21 S. W. Rep. 68; San Antonio, etc., Ry. Co. v. Long (Tex. Civ. App.), 26 S. W. Rep. 114, citing Hutchinson on Carr.; Railway Co. v. Brown, 16 Tex. Civ. App. 93, 40 S. W. Rep. 608; Gary v. The Railway, 17 Tex. Civ. App. 129, 42 S. W. Rep. 576; Houston, etc., R. Co. v. George, 1 Tex. Ct. Rep. 376, 60 S. W. Rep. 313; Railway Co. r. Byers, 6 Tex. Ct. Rep. 36, 70 S. W. Rep. 558; St. John v. The Railway (Tex. Civ. App.), 80 S. W. Rep. 235; Railroad Co. v. Clark (Tex. Civ. App.), 81 S. W. Rep. 821; Boyles . The Railway (Tex. Civ. App.), 86 S. W. Rep. 936, citing Hutchinson on Carr.; Missouri, etc., Ry. Co. v. Wolf, Tex. Civ. App. 89 S. W. Rep. 778; St. Louis, etc., Ry. Co. v. Parks Tex. Civ. App. West Virginia: Searle . The Railway, 32 W. Va. 370; Fisher v The Railroad, 39 W. Va. 366, 19 S. E. Rep. 578, 39 L. R. A. 758. Wisconsin: Berry v. Railway Co., 73 Wis. 197. The utmost care and diligence which human prudence and foresight will suggest is the rule laid down in Palmer . Canal Co., 120 N. Y. 170. Highest practicable care of capable and faithful railroad men is required by other cases. Furnish r. Railway Co., 102 Mo. 438, 13 S. W. Rep. 1044; Miller v. Steamship Co., 118 N. Y. 200; Searle v. Railway Co., 32 W. Va. 370; Berry v. Railway Co., 73 Wis. 197. Utmost caution char acteristic of very careful prudent men. Pennsylvania Co. v. Roy, 102 U. S. 451. Utmost human foresight, knowledge, care and skill. Dougherty v. Railroad Co., 97 Mo. 647; Lemon r. Chanslor, 68 Mo. 340; Dougherty . Railroad Co., 81 Mo. 330; Kelly r Railroad Co., 70 Mo. 609; Leslie v. Railroad Co., 88 Mo. 55. Extraordinary care and caution: Raymond v. Railway Co., 65 Iowa, 152. Utmost human care and foresight. Wilson v. Railroad Co., 31 Minn. 481. Highest degree of care and diligence which is rea 90 S. W. Rep. 343. Virginia: Farish v. Reigle, 11 sonably within the power of per Gratt. 697. Washington: Williams v. Railway Co., 39 Wash. 77, 80 Pac. Rep. 1100. sons engaged in such business. Van de Venter v. Railway Co., 26 Fed. Rep. 32. Highest degree of care and skill. Moore v. Railway all the circumstances, short of a warranty of the safety of the passengers; and the rule cannot, perhaps, be better or more forcibly expressed than in the words of Sir James Mansfield in the case of Christie v. Griggs,12 that the duty of the carrier is to provide for the safety of his passengers "as far as human care and foresight will go." This, at least, is the most common mode of stating it, and the words "as far as human care and foresight will go" have become, from frequent use, a familiar form of expression in connection with the obligation of the passenger carrier. It is not therefore correct to assimilate this duty to that to which the private carrier for hire is bound, or to make the degree of care, which the law requires of the one, the standard by which to measure that which will be demanded of the other.13 Sec. 897. (§ 502.) Same subject-Limitations to the rule.— When it is said, however, that the carrier of the passenger must Railroad Co. v. Greenwood, 99 Ala. 501, 14 So. Rep. 495. Co., 69 Iowa, 491; Mackey v. Rail- exercise. Carriers of passengers are required to do all that human care, vigilance and foresight reasonably can do, in view of the character and mode of conveyance adopted, to prevent accidents to passengers. Bosworth v. The Railroad, 25 R. I. 202, 55 Atl. Rep. 490. Conduct actuated by good faith and an honest purpose to avoid injury to passengers, is not the equivalent of the highest degree of care which the carrier must The general statement that the carrier is bound to exercise the "greatest degree of care and foresight" contemplates a higher de gree of care than that imposed by law. It should be qualified with the statement, "as con pared with that care and dil gence which prudent men engaged in a like business would exercise." Railway Co. v. Vivion, 19 Ky. Law Rep. 687, 41 S. W. Rep. 580. A charge that the carrier is bound to use "greatest possible care necessary," i. e., necessary to prevent the injury, is erroneous. Gilson v. Railway Co., 76 Mo. 282. 12. 2 Camp. (Eng.) 79 13. See Railroad Co. v. Welch, 86 Tex. 203, 24 S. W. Rep. 390, 40 Am. St. Rep. 829, citing Hutchinson on Carr.; Hardin v. The App. 83 S. W. Rep. 1112, cit provide for his safety "as far as human foresight will go," it is not meant that he will be required to exercise all the care and diligence of which the human mind can conceive, or all the skill and ingenuity of which he is capable. It does not, for instance, Railway, (Tex. Civ. App.) 77 S. of an undertaking in which he W. Rep. 431, citing Hutchinson professes skill. This is exactly on Carr.; Railroad v. Thompson, the degree of care and skill which (Tex. Civ. App.) 77 S. W. Rep. is required of the private carrier 439, citing Hutchinson on Carr.; for hire, both of persons and of Payne v. Halstead, 44 Ill. App. 97, goods; that is, the exercise of citing Hutchinson on Carr.; Gold- such care and skill as prudent and smith v. Building Co. Mo. cautious men, experienced in the business, are accustomed to use under similar circumstances. Shoemaker v. Kingsbury, 12 Wall. 369. But it has been generally understood that more than this would be required of the public carrier of passengers. While he does not warrant, for instance, perfection in his vehicles or machinery, yet if there be such defect, and it could have been discovered by any known and usual test applied by such carrier, and an accident be occasioned thereby, from which the passenger suffers injury, the carrier will be liable, and it will be no defense that the defect was hidden from view. And the better opinion, as we think, is, that, at least when he is a carrier by steam power, he will be even responsible for defects occurring in their manufacture, and which could only have been discovered by the manufacturer himself, by the application of tests known to him. Post, §§ 906-909. So in the protection which the public carrier is required to afford to his passenger against assaults and violence to his person, and in many other particulars which might be mentioned, the law has imposed duties upon him as to the care to be exercised It is argued in Wharton on Negligence, secs. 629-637 that the diligence to be required of the carrier of passengers is only that which will be required of "a good business man in his specialty." This is certainly reducing the responsibility of the passenger carrier below the generally accepted standard. A person engaged in any pursuit as a specialty, in which he undertakes to perform service for others for compensation, professes skill adequate to the undertaking and promises due diligence in its performance. But ordinary skill and ordinary diligence are all that the law exacts o him, and if he has used these, he cannot be made liable for a loss or injury to another for whom he has undertaken the service, although it may be shown that a higher degree of skill and diligence would have made the undertaking successful. See Story on Bailments, § 431, where several instances are given, and the rule of ordinary skill and diligence is stated to be the test of the liability of an employee for loss or injury in the performance require steel rails, or iron or granite cross-ties upon the roads of railway companies, because such ties are less liable to decay, and hence safer than those of wood. Nor does it require the carrier over the public highway to repair it so as to render it, towards the passenger, which are never required of the good business man in his specialty in behalf of his customers. Another distinction which rests upon the different degrees of care and diligence which are required from the public carriers of passengers, and those engaged in private pursuits, is in the character of the proof necessary to establish a prima facie case of liability. In order to fix such liability upon the mere business man, it must be shown that he exercised less than ordinary diligence and less than the ordinary skill possessed by those engaged in the same special pursuit; whereas, in the case of the public carrier of passengers, the proof of the accident from which the injury arose will usually make a prima facie case of negligence against him, and it will be then for him to show that due skill and caution had been used, if he would escape liability. This at least illustrates the different as pects in which the law regards such a carrier and the mere specialist, such as the farrier, the oculist, the dentist, etc. The law does not propose to make the pas senger carrier an insurer of his safety, as it does the common carrier of the goods which he carries. But it does exact of him all the care and diligence consistent with the character of his business, and its execution according to his professions and the expectations of the public. It will not require that which is impracticable, but will rigorously require all that is practicable for the safety of the passenger, and, as the cases will show, will hold the carrier and his servants liable for the least neglect of a single practicable and reasonable precaution, where the safety of the passenger is at stake. The highest degree of care and diligence, diligentia diligentissimi, is the rule as to the carrier of passengers, and public policy demands that it should not be relaxed. Nor do the cases show any tendency towards its relaxation, but, on the contrary, a disposition to increase its rigor, especially in its application to carriers wherever steam is employed as the motive power. Of course, what will be the test of the highest degree of diligence will vary according to the character of the mode of conveyance. That which might be regarded as the utmost care which could be reasonably required of the carrier by stage coach or street car might not be all that would be required of the steam car or the steamboat proprietor, because the same degree of care is not necessary for the safety of the passenger in the conveyance by animal power as when it is "by the dangerous agency of steam." But no matter what the mode of the transportation, the utmost diligence requisite to the safety of the passenger, and compatible with the means employed in his carriage, will be exacted. at all times, perfectly safe.14 The requirement of such a degree of care and skill would involve an expenditure and a responsibility so great as to make the business of passenger carriage wholly impracticable, and would drive all prudent men from it. But it does require everything necessary to the security of the passenger, reasonably consistent with the business of the carrier, and appropriate to the means of conveyance employed by him, to be provided, and that the highest degree of practicable care, diligence and skill shall be adopted that is consistent with the mode of transportation used, and that will not render its use impracticable or inefficient for its intended purposes. But to this extent the rule will be rigorously enforced as a protection to the traveler, and as a warning to the carrier against the consequences of delinquency in his duty.15 Sec. 898. Degree of care required may vary with the circumstances-Duty to warn passenger of danger.-But while the carrier of passengers is under the duty of exercising the highest or utmost degree of care and foresight to provide for the safe conveyance of his passengers, no matter what the means of conveyance employed by him are,16 nevertheless, in deter 14. Indianapolis R. R. v. Horst, their business in serving the pub93 U. S. 291. lic. Libby v. The Railroad, 85 Me. 34, 26 Atl. Rep. 943, 20 L. R. A. 812. 15. Tuller v. Talbot, 23 III. 357; Pittsburg, etc. R. R. v. Thompson, 56 id. 138; Dunn . The Railroad, 58 Me. 187; Railway Co. v. Sweet, 57 Ark. 287, 21 S. W. Rep. 587; Atkinson v. The Railway, 90 Mo. App. 489, citing Hutchinson Carr. on The carrier of passengers is bound to exercise the highest degree of care and prudence which is consistent with the practical operation of his road and the transaction of his business. Rail way Co. v. Lewis, 145 Ill. 67, 33 N. E. Rep. 960. Carriers of passengers are not to be held against every possible danger, nor are they to be held accountable for not taking every possible precaution against danger and accident. To so hold them would be to compel them to adopt a course of conduct inconsistent with the economy and speed which are essential to the dispatch of 130 Cal. 435, 62 Pac. Rep. 747. 16. A carrier who accepts a pas senger upon a car which is crudely built is bound to exercise the same care with regard to such passenger's safety as though he had been accepted upon a Pullman car. Green v. Pacific Lumber Co., |