FOOTNOTES:
[444] Hawkins v. Hoffman, 6 Hill (N. Y.), 586; Duffy v. Thompson, 4 E. D. Smith, 178.
[445] Gamble v. G. W. Rw., 24 U. C. Q. B. 407; Le Conteur v. London & S. W. Rw., L. R., 1 Q. B. 54.
[446] Williams v. G. W. Rw., 10 Ex. 15; see also, G. W. R. v. Goodman, 12 C. B. 313.
[447] Tower v. Utica & Sch. Rw., 7 Hill (N. Y.), 47; and Wilde, J., in Richards v. London, B., & S. C. Rw., 7 C. B. 839.
[448] Talley v. G. W. R., L. R., 6 C. P. 44.
[449] Tower v. Utica & Sch. Rw., supra.
[450] Gamble v. Great Western Rw., 24 U. C. Q. B. 407.
[451] Phelps v. London & N. W. Rw., 19 C. B. (N. S.), 321.
[452] Pardee v. Drew, 25 Wend. 459.
[453] Hudston v. Midland Rw., L. R., 4 Q. B. 366.
[454] Macrow v. Gt. Western Rw. Co., L. R., 6 Q. B. 612.
[455] Ouimit v. Henshaw, 35 Vt. 605.
[456] Stallard v. Gt. W. R., 2 B. & S. 419; 8 Jur. (N. S.), 1076.
[457] Anderson v. Northeastern Rw., 4 L. T. (N. S.), 216.
[458] Van Toll v. Southeastern Rw. Co., 12 C. B. (N. S.), 75; 6 L. T. (N. S.), 244; Harris v. G. W. R., W. N. June 10, 1876; but see Henderson v. Stevenson, L. R., 2 S. & D. 470.
[459] Pepper v. Southeastern Rw. Co., 17 L. T. (N. S.), 469.
[460] Bayley v. Lancaster Rw. Co., 18 Sol. J. 301.
[461] Allen v. London & S. W. Rw., L. R., 6 Q. B. 65.
[462] Railway Act, 1868, § 49.
[463] Dill v. Railroad Co., 7 Rich. 158.
[464] Hart v. Rensellaer & Saratoga Rw., 4 Seld. 37.
[465] Murray v. Metropolitan District Rw., 27 L. T. (N. S.), 762.
[466] Indianapolis & Cincinnati Rw. v. Rutherford, 7 Am. Law Reg. (N. S.), 476.
[467] N. J. R. v. Kennard, 21 Penn. St., 203.
[468] P. & C. Rw. v. McClurg, 7 Am. Law Reg. (N. S.), 277; Pittsburgh, etc., Rw. v. Andrews, 39 Md. 329.
[469] Holbrook v. Utica. & Sch. Rw., 12 N. Y. 236.
[470] Laing v. Colder, 8 Penn. St. 483.
[471] Fordham v. L. B. & S. C. Rw., L. R., 3 C. P. 368; 4 C. P. 619 (Ex. Ch.); also, Coleman v. S. E. Rw., 4 H. & C. 699.
[472] Jackson v. Metropolitan Rw., L. R., 10 C. P. 49.
[473] Richardson v. Metropolitan Rw., L. R., 3 C. P. 374, n.
[474] Addison on Torts, 3d ed. 448.
[475] Briddon v. Gt. Northern Rw., 28 L. J., Ex. 51.
CHAPTER XII.
DUE CARE.
Snowed up.—Pacific Railway.—Passenger Carriers not Insurers.—Company must use Due Care.—Defective Machinery.—Broken Axle.—Company must account for Accident.—Difference between Goods and Men.—What is Due Care.—Latent Defects in Cars.—English Rule.—Rule in New York.—Moralizing.—Railroad Death-rate.
As the train came to a solemn pause in a deep cutting a number of us gathered together in the warm and cosy Pullman, the ne plus ultra of railway cars, far surpassing in comfort and luxury an English or Continental first-class carriage, though not adorned as are the Italian cars with those abominations of the sterner sex—tidies for the head to rest against. And here, each in turn related railroad adventures and accidents; tales which excited laughter and joyous merriment, of engagements, love scenes, marriage ceremonies, undress exhibitions in sleeping cars; tales of sorrow and grief, collisions, explosions, helpless people crushed, boiled, roasted to death; dozens plunged into eternity in a moment by the simple derangement of a switch, the starting of a rail, a flaw in a wheel, a sleepy pointsman, or a weary telegraph clerk.
One told that, in India, railroad traffic is seriously affected by the stagnation of the matrimonial market, a wedding there being an occasion of great pomp and the gathering together of friends; that the railways are breaking down the castes, as the conductors tumble into the same car proud, lofty, blue-blooded Brahmins, poor despised Pariahs, blood-thirsty Thugs, sun-worshipping Parsees, and learned Mussulmans; and go together these must, notwithstanding the dogmas of Shasters, Vedas, and Korans, or else jump out and die. Another told of having found nuggets of gold, the remains of melted jewelry, among the charred and blackened remains of unfortunates consumed at the Komoka (Ont.) accident. While a third in graphic terms described the efforts made to break through a snow blockade on the Central Pacific; the snow was a solid mass twenty feet high in front of the plough; ten engines were at work; they backed up about a mile, then reversing made a spring forward, locomotives shrieking and screeching, men yelling and gesticulating, volumes of smoke pouring forth from every funnel and hanging like a pall over the scene; the loud rumbling of the huge iron-beaked monster flying over the track, the hissing, roaring din and the chorus of shrieking demons behind made up a scene that would blanch the boldest cheek. With the force of a thousand giants the plough rushed upon the snow and hurled it in enormous masses, like mighty billows, down the mountain sides, crushing through the lofty pines, and glistening and gleaming like frosted silver as it fell upon the frozen cataract below; but the charge was well nigh in vain.
Thus with the flow of reason and the feast of soul passed some weary hours. At last, one gentleman turning to me, said:—
“I believe that a carrier of goods is liable for his freight in every event; is a carrier of passengers responsible to the same extent?”
“No,” I responded, “all jurists are agreed that railway companies are only liable for negligence, either proximate or remote, and not for injuries happening to passengers from unforeseen accident or misfortune, where there has been no negligence or default on the part of the carrier;[476] still it is the bounden duty of a company to use due and proper care and skill in conveying travellers; and this duty laid upon them does not arise from any contract made between the company and the persons conveyed by them, but is one which the law imposes. If railways are bound to carry, they are also bound to carry safely; it is not sufficient for them to bring merely the dead body of their passenger to the end of the journey, and there deliver up the remains, parboiled or cut into sausage meat, to his executors and administrators.[477] The fact that injury is suffered by any one while upon the company’s train, as a passenger, through any failure of the means of safe transportation, is regarded as primâ facie evidence of their liability;[478] and such evidence, if not rebutted by the company, will justify a verdict against them which a court will not set aside.”[479] And having delivered myself of this harangue, I looked around with a self-satisfied air and rubbed my hands with invisible soap, in imperceptible water, à la Tom Hood.
“Yes,” said an engineer, “a company is bound to use the best precautions in known practical use to secure the safety of their passengers,[480] but not every possible preventive which the highest scientific skill might have suggested,[481] nor every device which ingenuity might imagine.[482] But it appears hard that a company should be held liable—as they have been—for injuries arising from a crack in the axle of a car indiscoverable by any practical mode of examination,[483] and be bound to provide roadworthy carriages, absolutely and irrespectively of negligence.”
“Yes, that is the rule in New York State, but it has been somewhat questioned in later cases, and in fact it was laid down that a company is not responsible for injuries caused by vis major, as the breaking of a rail through extreme cold.”[484]
“Wal, strangers,” quoth a regular long, lean, lanky down-easter, “look ye har, down in my State, a carrier is bound to use the highest degree of care that a reasonable man would use.”[485]
“That is substantially the same as the rule in the English cases,” I said, “and has, I believe, been followed in most of the States, and in the United States Supreme Court.”[486]
“I presume,” said the machinist; “companies are liable for defects in their cars whether they manufacture them or purchase them?”
“Oh yes,” I rejoined, “the companies are alike bound to see that in the construction no care or skill has been omitted for the purpose of making their engines and cars as safe as care and skill can make them.”[487]
“I remember,” spake the man of science, “hearing of one case where the engine ran off the track, and it was found that a fore-axle was broken, but no evidence was given as to whether the accident caused, or was caused by, the breakage; yet a traveller who had his shoulder contused, and his hat crushed, and was rendered insensible for a time and sick for a longer period by the accident, recovered a large sum against the company.[488] And in another English case[489] an accident happened from the breaking of the tire of a driving-wheel; the defect could not have been discovered by the original testing, but might have been if it had been repeated when the tire was returned after being considerably worn. The company was held liable. And so where the defect might have been discovered when the car was mended, and it was sent on without being thoroughly examined and repaired.”[490]
“Yes,” said one who had not yet spoken, “I was on a jury in a case against the Great Western of Canada. The axle of the tender had broken, and the tender and a car went off the track, and a man who was in the car had his arm broken. At the trial the company proved by the engineer in charge of the train, that he had examined the axle shortly before the accident and that all appeared in good order. The judge charged in favor of the defendants, but we found a verdict for the plaintiff, which the court refused afterwards to interfere with, as we were the proper judges as to whether or not there had been negligence on the part of the company.”[491]
“I think that it was in that case that Chief Justice Macaulay remarked, that the accident having happened unaccountably, and without any proximate or active cause to account for it, constituting as the cases say some evidence of negligence, it rested with the company to explain and reconcile it with perfect innocence on their part. It has been held, too, in England, that the plaintiff is not bound to show specifically in what the negligence of the company consisted; but that if some inevitable fatality caused the accident, it is for the company to prove it.[492] In New York, too, the same view is taken.”[493]
“Wal, stranger, what is yer law about this yer in the old country? Not that I care three shakes of a dead possum’s tail about the old country, and all yer lawyers and judges with their horse-tail wigs, but still I calkerlate I kind o’ like to know what they do say on this here point; as it appears to me that the great Amerikin eagle has got rather mixed up.” And to add emphasis to his query, our friend of the land of wooden nutmegs fired from between his teeth a perfect feu de joie of extract of nicotine.
Thus appealed to, I cleared my throat, pulled up my shirt-collar, crossed my legs, assumed as authoritative an expression of countenance as Dame Nature ever permits me to do, and thus began:—
“So long ago as the days of Sir James Mansfield it was held[494] that there is a decided difference between a contract to carry goods and one to carry passengers. In the former case the carrier is liable for his freight in any event, but he does not warrant the safety of his passengers. His undertaking as to them extends no further than this, that as far as human care and foresight can go he will provide for their safe conveyance. So, if the breaking of a coach is purely accidental the injured traveller will have no remedy for the misfortune he has encountered. The contract made by a general carrier of passengers is to take due care to carry his living freight safely; and it does not amount to a warranty that the carriage or car shall be in all respects perfect for its purpose, i. e., free from all defects likely to cause a catastrophe, although those defects were such that no skill, care, or foresight could have detected their existence.[495] The obligation to use all due and proper care is founded on reasons obvious to any one with a semi-optic; but to impose on the carrier the burden of a warranty that everything he necessarily uses is absolutely without spot or blemish and free from defects likely to cause peril—when from the nature of things defects must exist which no skill can detect, and the effects of which no care or foresight can avert—would be to compel a man by implication of law and not by his own will to promise the performance of an impossible thing, and would be directly opposed to the maxims of law, ‘Lex non cogit ad impossibilia,’ ‘Nemo tenetur ad impossibilia.’ [Here the audience coughed.] ‘Due care,’ however, undoubtedly means (having reference to the nature of the contract to carry) a high degree of care, and casts on carriers the duty of exercising all vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order. But the duty to take due and proper care, however widely construed, however vigorously enforced, will not, as that man Readhead sought to do, subject a railway company to the plain injustice of being compelled by law to make reparation for a disaster arising from a latent defect in the machinery which they are obliged to use, which no human skill or care could have prevented or detected, or eye descried unless of ‘the patent double million magnifyin’ gas microscopes of hextra power kind’ to which Mr. Weller, Jr., refers. In that case, the accident was caused by the breaking of the tire of one of the wheels of the carriage, owing to a latent defect in it, which was not attributable to any fault on the part of the manufacturers, nor was it discoverable previously to the breakage. The rule laid down in that case (Readhead’s) seems to be that although the carrier of passengers may be responsible for deficiencies caused by want of skill or care in the manufacture of the carriages used, he is not to be so held when the defect could not have been avoided in the making, or detected on examination. It is so extremely improbable that such a case should happen, that the practical difference between this and the New York rule of absolute responsibility[496] is not of much importance, although the theoretical difference is. But the rule in New York does not seem to be fully approved of even on this side of the Atlantic.[497] The truth seems to be that carriers of persons must be held to the utmost degree of care, vigilance, and precaution, but not to such a degree of vigilance as would be wholly inconsistent with the mode of conveyance adopted and render it impracticable. Nor is the utmost degree of care which the human mind is capable of imagining required. Such a rule would require such an expenditure of money and employment of hands so as to render everything safe, as would prevent all persons of ordinary prudence from engaging in that kind of business. But the rule does necessitate that the highest degree of practicable care and diligence that is consistent with the mode of transportation adopted, should be used.”[498]
I stopped; one universal sigh of relief uprose from those of my listeners who were not nodding approvingly from the borders of Dreamland. The Yankee said:—
“Wal, stranger, that was a yarn. I guess I’ll go and have a smoke, and see if I can calkerlate what in blazes you did mean by all that long pow-wow.” And he departed.
“I think,” said the juror, “that the law ought to be the most stringent possible in order to put a stop to such barbarous and inhuman sacrifice of multitudes, such horrible mangling of bodies and limbs, such frightful cases of burning alive and scalding to death that have occurred so frequently of late.”
“Yes, I hope that the day is not very far distant when all our courts will hold, that all who undertake the transportation of passengers by the dangerous element of steam, and with the great speed of railway trains, are responsible for the use of every precaution which any known skill or experience has yet been able to devise, and that passengers need not judge for themselves how many of these precautions it is safe to forego.”[499]
“But,” urged another, “people now-a-days wish cheap and rapid travelling in all directions and everywhere.”
“Suppose they do; we do not allow monomaniacs or brigands to commit suicide or murder without interference, because it is their pleasure or their interest to do so; and I see no good reason why railway passengers or railway managers should be allowed to roast a hecatomb in human sacrifice, because it seems desirable or convenient to the one or the other class concerned in the immolation, or because the one class demands and the other consents, to use a mode of transportation which inevitably produces these results.”[500]
“Ah,” said a lady, “I fear these dreadful accidents will continue until every train is compelled to carry a director of the company, or a general manager, upon the cow-catcher; experience will then soon induce them to be a little more careful of the bodies and lives of others.”
“But, sir!” said the scientific gentleman, a precise man of figures, “I fear you exaggerate when you speak of hecatombs of sacrifices. I believe that in proportion to the numbers carried the accidents to passengers in the good old days of stage-coaches were, as compared with these days of railway dispensation, about as sixty to one. Reliable statistics in France prove this. Figures, which you know are proverbial for their truth, show that absolutely more travellers were yearly killed and injured, without fault of theirs, fifty years ago on stage-coaches, than are now killed on the cars. According to the Report of the Board of Trade of Great Britain and Ireland, out of all the 480,000,000 of journeys taken by passengers by rail in the British Isles in 1874, only 212 people were killed, and 1,990 injured not fatally; so that you can easily see only one solitary traveller was killed to every 2,274,881 who followed in the triumphant train of the iron horse, and only one injured to every 242,301 passengers.”
“You speak only of passengers,” said a listener. “I presume far more employees were killed during that time.”
“Certainly. Only 212 passengers were killed that year while as many as 788 employees were; and of the injured ones 1,990 paid for the privilege, while 2,815 were paid for running the risk: and of these mangled ones many had only themselves to blame. Sir John Hawkshaw, an authority on these matters, recently asserted that railway accidents were fewer now than ever: that in fact, on an average, a man might travel 100,000 miles each year for forty years, and the chances would be slightly in favor of his not receiving the smallest scratch, unless he ran into danger of his own accord.”
“You might almost as well at once assert that it is less dangerous to travel by rail than to stay at home,” I remarked.
“That very statement was officially made in France some years ago, and supported by the proof, that while ten people were killed on the rail, fourteen died at home from falling over carpets, and having their garments catch fire.”
“All that may be true enough of England, or Europe; but I should think that it was widely different in America,” I replied.
“Of course it must be admitted that, taken as a whole, the dangers incident to railway travelling are materially greater in America than in any country of Europe. Still the destruction of life and limb is nothing frightful,—the wonder rather is that so few are hurt. Perhaps you will not believe it, yet the truth of the fact remains, that in the year 1874, throughout the whole of Massachusetts, but one passenger was killed on the cars through an accident to which his own carelessness did not contribute; while in the same year of grace, in the city of Boston alone, fifteen people were killed from falling down stairs, twelve by falling out of windows, and seventeen were run over by carriages and fatally injured.”
“But perhaps, that was an exceptional year!”
“Let us take four years then, from September, 1870, to the same month of 1874: in that time the railroads disposed of 635 persons, all told, passengers, employees, trespassers—in Massachusetts; and in Boston during the same years there were 1,050 accidental deaths! The returns for the last fifteen years show, that in Massachusetts only 39 passengers were killed, while 250 were injured, but not fatally, from causes over which they had no control: that is less than one killed to each 8,900,000 travellers, and about one in each 1,400,000 injured. The statistics for that State would appear to indicate that if one chanced to be born on a train and remained there travelling 500 miles a day, he would, with average good fortune, be about two hundred and twenty years old before being involved in any accident resulting in death, or personal injury.”
“That is quite long enough, since Methusaleh is no more.”[501]