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]