have suggested, regardless of their expense as compared with the character and amount of his business, or of the difficulties of their adoption and application, or of their importance, or of the necessity for them in the particular business. Nor will he be held liable for failing to adopt an untried machine or mode of construction. In a case in which the question was as to the liability of a railway company, by reason of continuing to use a particular kind of switch instead of one of an improved pattern, by the employment of which it appeared that the accident would have been avoided, "undoubtedly," said the court, "this rule is to be applied with a reasonable regard to the ability of the company and the nature and cost of such improvements; but within its appropriate limits, it is a rule of great importance, and one which should be strictly enforced. A stronger case for the application of the rule than is here presented could scarcely arise. The improvement related to a part of the apparatus of the road which is a source of numerous accidents. Its utility was undoubted and the expense trifling. The defendants had themselves recognized its value. If the principle should ever be applied, therefore, it should be applied here. The defendants were clearly in default for permitting the short switch to remain in use upon the road, especially at a place where there was a somewhat unusual complication of switches.'7

6. Steinweg v. The Railway, 43 N. Y. 123.

Thus there is no principle of law which requires a railroad company to furnish its road with new cars to transport passengers, or which makes it liable for using old ones. But whether new or old, it is required to keep them in good repair and fit for use so as not to endanger the safety of passengers. Wormsdorf v. Railway Co., 75 Mich. 472.

A passenger carrier is not bound to adopt every new improvement

or to use on freight trains all the safety appliances used on passenger trains. Oviatt v. Railway Co., 43 Minn. 300.

A carrier is required to use a headlight that is up to the standard of those in general use, and is reasonably adapted for the purpose for which they are intended; but the law does not require that such appliances shall be "of the most approved pattern in use." Railway Co. v. Guilford, 119 Ga. 523, 46 S. E. Rep. 655.

7. Smith v. The Railroad, supra.

Sec. 953. (§ 530.) Same subject.-And where the action was against a ferry company, to recover damages for an injury to a passenger upon one of its boats, through its alleged negligence, Colt, J., in delivering the opinion of the court, illustrated the distinction by saying: "The modes of conveyances in use by passenger carriers, both by land and water, vary as the exigencies of the traffic and its remunerative character require and justify. To require all carriers to adopt alike expensive provisions for the safety of passengers, without reference to the nature of their employment or the amount of their business, would be impracticable and absurd. It would be like requiring all public highways in the commonwealth to be kept in a like state of repair, without reference to the nature of the country through which they pass, or the amount of travel they accommodate. The different kinds of ferries in use vary from the rudest form of boat, drawn from shore to shore by ropes, propelled by oars or horse power or the current of the stream, with landing places on the banks, to those expensive steamboats which ply between populous districts, provided with every convenience of access from docks and ferry houses. It cannot be necessary, in order to protect themselves from liability, that all these different ferry-men should adopt those appliances which can be shown to be the safest, and which others in the same occupation use."8

Sec. 954. Same subject.-Duty of railroad company to maintain "whip lashes" near overhanging structures bridges. By the weight of authority, it is the duty of rail

or

8. Le Barron v. The Ferry Co., that point. On the contrary, the 11 Allen, 312.

In Hughes v. Steamboat Co., 31 N. Y. Supp. 1012, 11 Misc. 65, the plaintiff claimed he had been in jured by falling on the stairs of defendant's steamboat. He introduced evidence to show that the steps were covered with polished and very slippery brass, but his testimony was not corroborated on

evidence tended to show that the brass covering was raised in stars to get an uneven surface, and the court refused to disturb a verdict in favor of the defendant.

On the question of the liability of a vessel for injuries arising out of latent defects in the vessel, see The Oregon, 133 Fed. 609, 68 C. C. A. 603.

road companies to so construct their overhead bridges, or other structures over their tracks, that those who have the right to be upon the tops of their freight trains may not be exposed to unnecessary risks or perils that can easily, and without any great outlay, be avoided. And if such a structure does expose those who have a right to be upon the tops of freight trains to unusual risk, the duty will devolve upon the railroad company to give verbal notice of the danger, or else to provide "whip lashes" for the purpose of affording timely warning of the approach of freight trains to the structure. Thus where a stockman who was passing over the tops of freight cars, after having attended his stock, was struck by a snow-shed which the railroad company had constructed over its track in such a manner that persons walking upright on the running boards of the cars could not safely pass beneath it, it was held that in failing to give him warning, either verbally or by "whip lashes" or other equipment, of the approach of the train to the structure, the company was guilty of negligence and was therefore liable for the injury.9

Sec. 955.

Duty of railroad company to maintain fences along its right of way.-The obligation owed by a railroad company to its passengers requires of its employes in charge of its trains a faithful watchfulness to prevent accidents by collision with animals which may wander upon its track. And if such watchfulness is not sufficient to guard against the danger, and a fence will render the track more safe from the intrusion of animals, the company's obligation will require it to adopt the more effective precaution. If the conditions are such in respect to animals wandering upon its track that the want of a proper fence increases the dangers of railroad travel, and an accident results occasioning injury to a passenger, the railroad company will be liable for such injury, although it may owe no duty to the adjacent land owner or to the owner of the animals

9. Saunders v. Southern Pac. 56 Fed. 451, 5 C. C. A. 551, 12 U. S. Co., 13 Utah, 275, 44 Pac. Rep. 932. App. 392, and cases cited. See also, Railway Co. v. Carpenter,

to fence its track.10 The duty to construct proper fences is imposed by statute in some states.11

Sec. 956. (§ 531.) Duty as to examination of vehicles and other apparatus.-It is laid down in some of the cases that the carrier is required to examine his vehicles and other apparatus for the conveyance of his passengers previous to the commencement of each journey, and that if he fail to do so and an injury happen to a passenger, caused by a defect in any of them, which might have been discovered by such an examination, he will be obnoxious to the charge of negligence and responsible for the injury.12 Of this rule he was held to a punctilious observance, where it was proven that when the accident happened the coach was on its second journey after the last examination which had been made of it; and, although it had just before been repaired at the coachmaker's, the carrier was held liable. "For," as said by Best, J., "when ten or fourteen people are placed on the outside, as is the case with many of these stages, a master is guilty of gross negligence if no inspection of the coach takes place immediately previous to each journey. '13

Sec. 957. (§ 532.) Same subject.-This rule, however, was established in the old stage-coach days, and was of course intended for the guidance of carriers by the modes of conveyance then in vogue. It does not, it is apprehended, apply to steamboats and railways, which are now the principal earriers. The modes of testing the safety of the former are prescribed by general statutory laws, which require their inspection at certain stated periods and in certain prescribed modes,11 while the latter would hardly fulfill the law by exami

10. Fordyce v. Jackson, 56 Ark. 594, 20 S. W. Rep. 528; Railroad Co. v. Thompson, (Tex. Civ. App.) 77 S. W. Rep. 439.

11. Railroad Co. v. Elder, 149 Ill. 173, 36 N. E. Rep. 565, affirming 50 Ill. App. 276; Railway Co. v. Hendricks, 128 Ind. 462, 28 N. E. Rep. 58.

12. Sharp v. Grey, 9 Bing. 457; Ware v. Gay, 11 Pick. 106; Ingalls v. Bills, 9 Met. 1; Hanley v. The Railroad, 1 Edm. Sel. Cas.

359.

13. Bremner v. Williams, 1 C. & P. 414.

14. The failure to keep the floor constantly dry around the water

nations only previous to the commencement of each journey, but are required to be continually watchful of their vehicles, including all the means used by them in the transportation, and cautiously to observe all the accustomed and known tests for the discovery of their insufficiency as often as the circumstances may require. In this matter no invariable rule can be laid down by which they are to be governed; for what would be prudence and caution upon one journey and in one state of weather might not be so considered upon another journey, or over a different road, or at another season.

Railroad companies, it is said, have two means of informing themselves as to the condition of their cars. First, inspection made while the train is at rest by persons assigned to that service; and, secondly, the cursory and current observations of those members of the train crew whose duty it is to be on and in the cars while the train is in motion, and who are expected as they go about their business to have an eye to their surroundings. The observation that the conductor or brakeman may reasonably be relied on to make is, however, necessarily incidental to the performance of other duties and, on that account, is less exhaustive than a regular inspection.15 It cannot, therefore, be continuous,16 and on that ground a railcooler in the steerage of a vessel will not render the vessel liable for injuries due to the slipping of a steward thereon and spilling hot gruel on a passenger. The Anchoria, 83 Fed. 847, 27 C. C. A. 650, 51 U. S. App. 608, affirming Mulvana v. The Anchoria, 77 Fed. 994.

The "utmost human care and foresight" is required of carriers of passengers in providing safe machinery and mechanical appliances, and only reasonable care is required in respect of matters in which the passenger may exercise judgment and discretion. If the owner of a steamer removes the tables in the dining saloon,

and leaves the sockets used to secure them projecting above the floor and exposed, a passenger who is cognizant of their presence, and through a lurch of the sea, falls over a socket, cannot hold the owner of the steamer liable for his injuries. Bruswitz v. Navigation Co., 64 Hun, 262, 19 N. Y. Supp. 75.

As to ice on the decks of ferryboats, see Rosen v. City of Boston, 187 Mass. 245, 72 N. E. Rep. 992, 68 L. R. A. 153.

15. Proud v. Railroad Co., 64 N. J. Law 702, 46 Atl. 710, 50 L. R. A. 468.

16. Proud v. Railroad Co., supra; Palmer v. Pennsylvania Co., 111