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allowed to move a foot from the dock until this gate had been securely fastened and the rail and stanchions placed in position is to decide the matter in view of the facts which subsequently occurred and not from the circumstances existing prior thereto. It was an accident which could not, as I think, have been reasonably anticipated. The attempt of a belated man to jump from the boat to the wharf immediately after the starting of the boat, his failure to reach the dock and his consequent falling into the water, the cry of 'man overboard,' the instantaneous rush of a crowd of ordinary passengers towards the side of the boat whence the cry proceeded, and the shoving of the plaintiff overboard, altogether form such an extraordinary and therefore unheard of combination of circumstances that the failure to foresee their possibility and to guard against their happening cannot in any fair or proper view of the subject be called negligence."

2. Duty as to means of conveyance.

Sec. 902. (§ 505.) Carrier's responsibility for the safety of his means of conveyance. It is the duty of all public carriers, whether carriers of goods or passengers, or both, to provide themselves with suitable and sufficient means to carry according to their professions; and so far as they undertake, as common carriers of goods, their obligation, unless modified by contract, is absolute that the vehicles or other means by which the transportation is effected shall be faultless. They warrant the safety of the goods, in other words, against all imperfections, known or unknown, hidden or patent, in the instruments by which they undertake to make the conveyance, and no excuse will be heard from them that the loss or injury was occasioned by such imperfections, no matter to what attributable, unless it be the act of God or of the public enemy, the fault of the shipper himself, or some inherent defect in the goods. The safety or sufficiency, therefore, of means of transportation employed by the carrier of goods is a matter of more concern to the carrier himself than to the owner of the goods, unless the

carrier has, by contract, protected himself against such risks. But when the passenger intrusts himself to the carrier, it becomes a matter of vital concern to him that the vehicle by which he is to be carried shall be safe in every particular so far as it can be made so by human skill. As the liability of the carrier to the passenger depends entirely upon the question of negligence and not upon any warranty of safety as in the case of goods, the only legitimate inquiry, when he has sustained an injury from the insecurity or imperfection of the means by which he is being carried, is whether the carrier has exercised that degree of care and diligence which the law requires of him, and the inquiry into such care and diligence must, of course, be extended to the instrument or means by which the carrier has undertaken to transport him. If this should be shown to have been unsafe or insufficient from palpable or easily discovered imperfections, there could be no doubt that the carrier had been guilty of culpable negligence which would make him liable to the passenger. But if such defects were unknown to the carrier, and could not have been discovered without a skillful inspection, would the carrier be chargeable with negligence? And if so, what degree of skill must be applied or required in the examination, without a discovery of the defect, in order to exonerate him from the charge?

Sec. 903. (§ 506.) Same subject-Liability for latent defects. -It is admitted on all hands that the carrier does not warrant the safety of the passenger. The reasons for this are plain and have already been stated. The question, however, whether he warrants the perfection of his vehicle and its appointments has been sometimes regarded in a different light, and the answer to it depends, by no means, upon the same reasons. Many cases have turned upon its decision. In Ingalls v. Bills1 the injury arose from a hidden defect, which could not be discovered by the most careful and thorough examination, being a small flaw in

1. 9 Met. 1.

In Palmer v. Canal Co., 120 N. Y. 170, it is said: "While a rail

road company is not an insurer of the safety of its passengers, it is bound to use a high degree of skill

the interior of an iron axletree of a stage-coach, which was entirely surrounded by sound iron. Hubbard, J., after a very thorough and able review of the English cases which were supposed to throw light upon the subject, announced that the conclusion to which the court had come was "that carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient and suitable coaches, harnesses, horses and coachmen, in order to prevent those injuries which human care and foresight can guard against; and that if an accident happens from a defect in the coach which might have been discovered and remedied upon the most careful and thorough examination of the coach, such accident must be ascribed to negligence, for which the owner is liable in case of injury to a passenger happening by reason of such accident. On the other hand, where the accident arises from a hidden and internal defect, which a careful and thorough examination would not disclose, and which could not be guarded against by the exercise of a sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury, but the misfortune must be borne by the sufferer as one of that class of injuries for which the law can afford no redress in the form of a pecuniary recompense."

and vigilance to guard against accidents which may be attended with injurious consequences to them. This duty is not discharged without the utmost care and diligence which human prudence and foresight will suggest to secure the safety of its passengers. And this vigilance is to be exercised by the company to see that its read, and appliances used in operating it, are and remain in good condition and free from defects; and a latent defect which will relieve it from responsibility is such only as no reasonable degree of human skill and foresight could

guard against. Hegeman v. Western R. R. Co., 13 N. Y. 9; Bowen v. N. Y. C. R. R. Co., 18 id. 408; Brown v. N. Y. C. R. R. Co., 34 id. 404; Caldwell v. N. J. S. Co., 47 id. 282; Penn. Co. v. Roy, 102 U. S. 451. This measure of responsibility is deemed essential to the proper protection of passengers, who must necessarily rely wholly upon the precautionary care and diligence of the carrier so far as their safety depends upon the condition of the road and the means provided for their conveyance."

See, also, Wynn v. Railroad Co., 14 N. Y. Suppl. 172.

Sec. 904. (§ 507.) Same subject. This may be considered the leading American case upon the question of the extent of the liability of the passenger carrier for latent defects in his vehicles, and the measure of his liability therefor as thus defined is now almost universally adopted,2 and applied to carriers of passengers by all kinds of vessels and vehicles, whether propelled by steam power or not.3

Sec. 905. (§ 508.) Same subject-The English rule. In the English courts, the same question continued without a satisfactory determination until the case of Readhead v. The Midland Railway Company. In this case it was proven that the accident from which the injury resulted to the passenger had been caused by the giving way of one of the wheels of the car in which he was being carried, owing to a defect in the

2. Frink v. Potter, 17 Ill. 406; Galena, etc. R. R. v. Fay, 16 id. 558; Mobile, etc. R. R. v. Thomas, 42 Ala. 672; Sawyer v. Railroad, 37 Mo. 240; Edwards v. Lord, 49 Me. 279; Derwort v. Loomer, 21 Conn. 245; Hall v. Steamboat Co., 13 id. 319; McKinney v. Neil, 1 McLean, 540; The Netherland, 14 Phila. 601; Anthony . Railroad Co., 27 Fed. Rep. 724; Carter v. Railway Co., 42 Fed. Rep. 37; Maury v. Talmadge, 2 McLean, 157; Peck v. Neil, 3 id. 22; Farish v. Reigle, 11 Gratt. 697; Stockton v. Frey, 4 Gill, 406; Frink v. Coe, 4 G. Greene (Iowa), 555; Curtiss v. The Railroad, 20 Barb. 282; Holbrook v. The Railroad, 16 id. 113; Palmer v. Canal Co., 120 N. Y. 170; Railroad Co. v. Sheppard, 56 Ohio St. 68, 46 N. E. Rep. 61, 60 Am. St. Rep. 732; Buckland v. The Railroad, 181 Mass. 3, 62 N. E. Rep. 955.

3. In Alden v. The Railroad, 26 N. Y. 102, it was, however, decided by the court of appeals of

New York, that the carrier is bound, absolutely and irrespective of negligence, to provide roadworthy vehicles, and that he was liable to the passenger for injuries received by him from the breaking of an axle of a car, although the defect could not have been discovered by any practicable mode of examination; and the case of Sharp r. Grey, 9 Bing. 457, was relied upon as fully sustaining the position. But the rule as thus laid down is said, in the subsequent case of McPadden v. The Railroad, 44 N. Y. 478, in the same court, to have been a departure from every prior decision or authority to be found in the books; and in the still more recent case of Carroll v. The Railroad, 58 N. Y. 136, it is said that "subsequent cases show that it was not the intention of the court, in that case, to depart from the established doctrine on the subject."

4. L. R. 2 Q. B. 412, L. R. 4 Q. B. 379.

welding of the tire, caused by an air bubble; that the defect was not discoverable by the eye or the ear; that the wheels were examined during the journey in the usual way, by inspection and sounding them with a hammer, which failed to reveal the defect; that the tire of the wheel in question was of the usual thickness; and that such defects might exist without any fault on the part of the manufacturer. The judge before whom the cause first came instructed the jury that if the defect in the wheel was one which could not be detected, either by the eye or the ear, there was no negligence on the part of the carrier; and the jury found for the defendant. The cause was taken to the court of queen's bench, in which it was held that upon these facts the plaintiff could not recover.5 On this

5. In this court, Blackburn, J., did not entirely concur with the other judges in regard to the extent of the obligation of the car rier to provide vehicles absolutely safe, though he did not dissent from the judgment of the court. The concluding portion of his opinion is as follows:

"I have only to add that I do not think that the duty to supply a seaworthy ship or a sufficient vehicle by land is equivalent to a duty to supply one perfect, and such as never can, without some extraordinary peril, break down; which would have the effect of making the carrier an insurer against all losses arising from any failure in the vehicle, which cannot be shown to arise from some unusual accident.

"I had occasion in Burges v. Wickham, 3 B. & S. 669, 693 (E. C. L. R. vol. 113), to consider what was the meaning of the term 'seaworthy,' as applied to a ship; and I see no reason to change the opinion which I then expressed, that it meant no more

than that degree of fitness which it would be usual and prudent to require at the commencement of the adventure; and applying a similar principle to a land journey, I agree with what I understand to have been the direction of Erle, C. J., in Ford v. London & Southwestern Railway Company, 2 F. & F. 730, that the railway company are not bound to have a carriage made in the best of all possible ways, but sufficiently fulfilled their duty by providing a carriage such as was found in practical use to be sufficient. other words, I understand the obligation to be, to furnish, not a perfect vehicle, but one reasonably sufficient. But in the present case the carriage was not such as to be reasonably sufficient. Had the parties who sent it out known of the existence of this defect in the tire, there would have been strong ground for accusing them of man slaughter, if death had ensued. They did not know it, and could not discover it until the tire broke; and they are therefore free from

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