CHAPTER VIII.

OF TRESPASSES AND INJURIES FROM NEGLIGENCE-NEGLIGENT MANAGEMENT OF CHATTELS.

SECTION I.-Of trespasses and injuries from acts of negligence.-Negligence and inevitable accident-Negligence of carriers of passengers-When the very occurrence of a railway accident is primâ facie proof of negligence-Accidents at level crossings-Negligent driving-Secret defects in carriages, race-stands, etc.-Liability of the master for the negligence of his servant-Identification of the passenger with the driver-Negligence of foot-passengers in public thoroughfares-Negligent navigation of vessels-Collisions between foreign ships-Non-observance of statutory or Admiralty regulations-Limitation of liability-Duty of shipowner as to goods damaged-Damage to owners of cargoes-Negligence of masters and employers causing injury to their servants-Injuries to servants from the negligence of their fellow-servants— Volunteers in dangerous employments-Contributory negligence on the part of the plaintiff-Negligence on the part of skilled workmen and professional men-Negligence of attorneys, barristers, surveyors, bank managers, directors of companies.

SECTION II.-Of actions for negligence.-Actions for compensating the families of persons killed by negligence-Proceedings in the Court of Admiralty-Parties to be made plaintiffs and defendants-Master and servant-Contractor and sub-contractor-Pleadings, defences, and evidence-Damages recoverableWhere the plaintiff is insured-Where the action is brought by personal representatives.

SECTION I.

OF TRESPASSES AND INJURIES FROM NEGLIGENCE-NEGLIGENT MANAGEMENT OF CHATTELS.

544 Negligence and inevitable accident.-No person may, as we have seen, be excused of a trespass except it be adjudged to have been committed entirely without fault, or to have been an inevitable accident, or to

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have been occasioned by the negligence of the plaintiff himself. "Looking into all the cases from the year-book in the 21 Hen. 7, down to the latest decision on the subject, I find the principle to be," observes Grose, J., "that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable"(a). Where to an action of trespass the defendant pleaded that he was a soldier of the trained bands, and was skirmishing with muskets charged with powder for exercise in re militari, and that in discharging his musket he accidentally and unintentionally injured the plaintiff, it was held that the plea, being a mere excuse, and no justification, afforded no answer to the action(b). And where the defendant was uncocking his gun, and the plaintiff was stopping to see it, and the gun went off and wounded the plaintiff, it was held that the plaintiff might maintain an action for the injury (c). So, where the defendant intrusted a loaded gun to be carried by an inexperienced servant girl, and the girl pointed the gun in sport at the plaintiff, and drew the trigger, and shot him in the eye, and blinded him, it was held that the defendant was responsible in damages for the consequences of his carelessness(d). And where the defendant gave the plaintiff a carboy, or large bottle of nitric acid, to carry, without informing him of the dangerous nature of the acid, and the carboy burst, and the acid inflicted dangerous wounds upon the plaintiff, and burnt and destroyed his clothes, and disabled him, it was held that the defendant was responsible in damages for the injury(e). But if the injury has resulted from circumstances over which the defendant had no control, he is not then answerable(ee). This has been held to be the case where the defendant's horse, being frightened by the sudden noise of a butcher's cart which was driven furiously along the street, became ungovernable, and plunged the shaft of a gig into the breast of the plaintiff's horse(ƒ); also where a horse naturally vicious, but not known to be so by the defendant who was riding it, became restive and unmanageable, and ran upon the foot pavement and knocked down and killed the plaintiff's husband(g); and where a horse, ridden by the defendant, was

(a) Leame v. Bray, 3 East, 599, ante, p. 2.

(b) Weaver v. Ward, Hob. 134. Dickenson v. Watson, 2 Jones, 205. Castle v. Duryee, 2 Keyes (N. Y.), 169.

(c) Underwood v. Hewson, 1 Str. 596.

(d) Dixon v. Bell, 5 M. & S. 198.

(e) Farrant v. Barnes, 11 C. B., N. S. 553; 31 Law J., C. P. 137.

(ee) Vincent v. Stinehour, 7 Vt. 62.

(ƒ) Wakeman v. Robinson, 1 Bing. 213. 8 Moore, 63.

(g) Hammack v. White, 11 C. B., N. S. 588; 31 Law J., C. P. 129.

frightened by a clap of thunder, and ran over the plaintiff, who was incautiously standing with others in the carriage-road(h).

If a horse, not known to be of a vicious disposition by the rider, suddenly kicks out without provocation and injures a bystander, the rider will not be responsible for the injury; but it is otherwise if the injury is caused by an incautious and dangerous use of the spur(i).

By the civil law, all the losses and damages which result from the act of another, whether through imprudence, rashness, ignorance, or other faults, are to be made good by him whose imprudence, or other fault, caused the mischief; for it is a wrong that he hath done, although he had no intention to do harm. Thus he who plays imprudently at a game in a place where there may be danger to others passing by, is answerable for the harm he does(k). A waggoner, or a mule-driver, who hath not strength or skill enough to hold in a mettlesome horse, or an unruly mule, will be answerable for the damage caused thereby; for he ought not to have undertaken what he had not skill or strength enough to perform. If, by overloading a horse or other beast, or by not avoiding a dangerous path, or by some other neglect, he causes damage to another, he will be answerable; and he who sustains the damage may have his action against the driver, or against the person who employed him().

545 Negligence of carriers of passengers for hire.-Every carrier of passengers for hire, whether he be or be not a common carrier (post, ch. 10), is bound to exercise the greatest care and forethought for securing the safety of his passengers, and is answerable for the smallest negligence on his own part, or on the part of his servants and agents(m), but not for unforeseen accidents and misfortunes, which care and vigilance could not have provided against or prevented. He "does not warrant the absolute safety of his passengers. His undertaking as to them goes no further than this, that as far as human care and foresight can go, he will provide for their safety(mm)." "When everything has

(k) Gibbons v. Pepper, 1 Ld. Raym. 38.

(i) North v. Smith, 10 C. B., N. S. 575. (k) Domat, liv. 2, tit. 8, s. 4.

(7) Ib. liv. 2, tit. 8, s. 2, § 5.

(m) Jackson v. Tollett, 2 Stark. 38. Dudley v. Smith, 1 Campb. 169. Maverick v. Eighth Avenue R. R. Co., 36 N. Y. 378. Brown v. New York Central R. R. Co., 34 N. Y. 404. Bowen v. N. Y. Central R. R. Co., 18 N. Y. 408. Caldwell v. New Jersey Steamboat Company, 47 N. Y. 282. Illinois Central R. R. Co. v. Phillips, 55 Ill. 194. Taylor v. Grand Trunk R. R. Co., 48 N. H. 304. Johnson v. Winona, etc., R. R. Co., 11 Minn. 296. McLean v. Burtant, 11 Minn. 277. Wheaton v. North Beach, etc., R. R. Co., 36 Cal. 590. Edwards v. Lord, 49 Me. 279. Fairchild v. California Stage Co., 13 Cal. 599.

Laing v. Colden, 8 Barr. 482.

(mm) McPadden v. New York Central R. R. Co., 44 N. Y. 478. Railroad Co. v. Aspell, 23 Renn. (11 Har.) 149. Sullivan v. Philadelphia & Reading R. R. Co.,

been done that human prudence can suggest, an accident may happen. The lights may in a dark night be obscured by fog; the horses frightened; or the coachman may be deceived by a sudden alteration in the position of objects near the road by which he had been used to be directed in former journeys; and if, having exerted proper skill and care, he from accident gets off the road, the proprietors are not answerable for what happens from his doing so." But the breaking down or overturning of a coach is primâ facie proof of negligence on the part of the driver, and he must rebut this presumption, if it be unfounded, by showing that "the damage arose from what the law considers a mere accident "(n). When the carriage is by railway, the railway company is bound to keep the railway itself in good traveling order, and fit for use, and to provide roadworthy engines and carriages, skilful drivers and engineers, and all things necessary for the safe conveyance of such passengers; and by the 31 & 32 Vict. c. 119, s. 22, to provide in certain cases for means of communication between the passengers and the guard. But the company is not bound, at its peril, to provide a roadworthy carriage, and will not be responsible to a passenger, if the defect in the carriage is such that it could neither be guarded against in the process of construction, nor discovered by subsequent examination(0).

6 Casey, 234. Kenney v. Neil, 1 McLean, 540. Meier v. Pennsylvania R. R. Co., 64 Penn. St. 225. Fairchild v. California Stage Co., 13 Cal. 599.

(n) Crofts v. Waterhouse, 11 Moore, 137; 3 Bing. 321. Sharp v. Grey, 2 M. & Sc. 620 ; 9 Bing. 460. Harris v. Costar, 1 C. & P. 637. Boyce v. California Stage Co., 25 Cal. 460. Christie v. Griggs, 2 Campb. 79. Stokes v. Saltonstall, 13 Pet. (U. S.) 181. Laing v. Colder, 8 Barr. 482. Farish v. Reighle, 11 Gratt. (Va.) 697. Sullivan v. Philadelphia & Reading R. R. Co., 6 Casey, 234. McKinney v. Neil, 1 McLean, 540. Redf. on Railw., s. 1760; Shearm. on Neg., s. 280. Meier v. Pennsylvania R. R. Co., 64 Penn. St. 225. Frink v. Coe, 4 Greene (Iowa), 555. Fairfield v. California Stage Co., 13 Cal. 599.

(0) Readhead v. Midland Rail. Co., L. R., 2 Q. B. 412; S. C. (Exch. Ch.) ib. 4 Q. B. 379. Meier v. Pennsylvania R. R. Co., 64 Penn. St. 225. McPadden v. New York Central R. R. Co., 44 N. Y. 478. Curtis v. Rochester & Syracuse R. R. Co., 18 ib. 536.

In Alden v. New York Central R. R. Co. (26 N. Y. 102), it was held that a carrier is bound, absolutely and irrespective of negligence, to provide roadworthy vehicles; and that a railroad corporation is liable for injuries to a passenger, caused by a crack in the iron axle of a car, although the defect could not have been discovered by any practicable mode of examination. The doctrine of this case is not in accord with the American cases generally, nor with the modern English decisions, and the authority of the case is questioned, if not wholly denied in the court in which it was decided. McPadden v. New York Central R. R. Co., 44 N. Y. 478.

It has been held that a railroad corporation is responsible in damages to a passenger injured by the breaking of one of the axles of a car in consequence of a latent defect which could not be discovered by the most vigilant external examination, although the car was purchased by the company from extensive and skilful car makers, and the axle was procured from a manufacturer of skill and reputation, if the defect was one which could have been discovered in the process of manufacturing the axle or car by the application of any test known to men skilled in such business. Hegeman v. Western R. R. Co., 13 N. Y. 9.

But in another case it was held that a railway were not liable for injuries to a passenger resulting from the breaking of an axle where the road bed and the car running upon it were

If the driver of a railway-engine drives at a dangerous speed, or from negligence or unskilfulness causes the train to be thrown off the rails, or to come into collision with another train, the railway company.

constructed of the best known materials and in the best known manner, combining all those appliances which men skilled in the art of car building employ, and where the car and its running gear were duly and carefully inspected from time to time, and the accident was due to some cause against which precaution and foresight would be unavailable. Meier v. Penn sylvania R. R. Co., 64 Pcnn. St. 225.

In another case it was held that carriers of passengers are liable for slight neglect; and that the law imposes upon them the duty of carrying their passengers safely, so far as is reasonably practicable, and that they would be liable for injury by the breaking of an axle by reason of frost, if by extraordinary care and attention the danger might have been avoided. Frink v. Potter, 17 Ill. 406.

In Pennsylvania it is held that railroad corporations are bound to exercise the strictest vigilance, and must carry their passengers safely if human care and foresight can do it, and that they are liable for any defect in the road, the cars or the engines, or any other species of negligence whatever of which they or their agents may be guilty. Railroad Co. v. Aspell, 23 Penn. 147. New Jersey R. R. Co. v. Kennard, 21 ib. 203.

In Massachusetts it is held that carriers of passengers are bound to use the utmost care and diligence to prevent an injury which human foresight can guard against, and that they are responsible for defects which might have been discovered upon the most careful and thorough examination. Ingalls v. Bills, 9 Met. 1. McElroy and wife v. Nashua & Lowell R. R. Co., 4 Cush. 400.

In Maine the carrier of passengers is held for such care as is used by very cautious persons. Edwards v. Lord, 49 Me. 279.

In Connecticut the carrier is held for the highest degree of care of a reasonable man, Hall v. Connecticut River Steamboat Co., 13 Conn. 320. Derwent v. Loomer, 21 ib. 253. Fuller v. Naugatuck R. R., 21 ib. 557, 576.

In Illinois it has been held that carriers of passengers are bound to use the utmost prudence and caution, and the utmost degree of care, vigilance and skill, and are liable for the slightest negligence known to the law short of insurance; and that the diligence of cautious persons is not enough. Galena & Chicago R. R. Co. v. Tarwood, 15 Ill. 468. Galena & Chicago R. R. Co. v. Fay, 16 ib. 468. Frink v. Potter, 17 ib. 406. Illinois Central R. R. Co. v. Phillips, 55 ib. 194.

In New Hampshire it is held that carriers of passengers by railroad are bound to exercise the highest degree of care and diligence in the conduct of their business, and are responsible for the slightest negligence. Taylor v. Grand Trunk R. R. Co., 48 N. H. 304. Cornwall v. Sullivan R. R. Co., 28 ib. 159. Clark v. Barrington, 41 ib. 51. But it has been held in both New Hampshire and Illinois, that while the rule requires of the carrier the highest degree of practicable care and diligence consistent with the mode of transportation adopted, it does not require the utmost degree of care which the human mind is capable of inventing, as such a rule would involve such an expenditure of money and the employment of so great a number of persons as would prevent all persons of ordinary prudence from engaging in that kind of business. Fuller v. Talbot, 23 Ill. 357. Taylor v. Grand Trunk R. R. Co., 48 N. H. 304.

In New York it is held that the rule as to the liability of carriers of passengers by stage. coach is not applicable to carriers of passengers by rail; and that the carrier in the latter case is bound to conduct.his business with all the care which human prudence and skill can suggest. Hegeman v. Western R. R. Co., 16 Barb. 353. S. C. 13 N. Y. 9. And in The Philadelphia & Reading R. R. Co. v. Derby, 14 How. (U. S.) 486, the court held that when carriers undertake to convey persons by the powerful, but dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence; and whether the consideration be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance or the negligence of careless agents; and that any negligence in such cases well deserves the epithet of gross. And see Steamboat New World v. King, 16 How. (U. S.) 474.

But while railroad companies are bound to exercise the utmost care and vigilance for the safety of their passengers, they are not held to an absolute warranty that the passengers shall not be injured rendering them liable in any event in the absence of negligence. McPadden v. New York Central R. R. Co., 44 N. Y. And see note mm, ante.