“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:—