under a contract for the transportation of cattle, who cannot be reasonably regarded as a free passenger, may by an express contract relieve the company from liability for injuries caused by the negligence of its servants; and that a railroad carrier is not allowed to contract for exemption from liability for losses arising from its own negligence.' And this disabilty is carried one step farther by a line of decisions sustained by the Supreme Court of the United States, denying the carrier's right to exempt himself from liability for injuries and losses arising from the negligence of his servants."

The carrier is permitted to stipulate for such exemptions from liability as the law regards just and reasonable; and the law does not regard it as just and reasonable to permit him to evade the liability fairly involved and assumed by him under the contract. An exemption from losses by fire is reasonable, unless the loss occurs through the negligence of the carrier or of his agents employed in the business.3

§ 706. We have seen that a person may be a passenger, lawfully on a boat or in a car, where there is no contract subsisting between him and the carrier; and that he is not left without a remedy against the carrier for his acts of negligence. The same is true where he takes passage on a public conveyance under an illegal contract, or while acting in violation of the law of the State. The carrier is not allowed to inter

' Perkins v. N. Y. Central R. Co., 24 N. Y. 196; Smith v. N. Y. Central R. Co., 29 Barb., 132; S. C., 24 N. Y., 222; Bissell v. N. Y. Central R. Co., 25 N. Y., 442; rule criticised in Stinson v. N. Y. Central, 32 N. Y., 333; Poucher v. N. Y. Central R. Co., 49 N. Y., 263; contra, Cleveland, Painesville &c. R. R. Co. v. Curran, 19 Ohio St., 1; and cases cited in Lockwood v. N. Y. Central R. Co., 17 Wall., 357; 10 American R., 365.

2 The following cases are cited by Judge Bradley as favoring the decisions of New York. Ashmore v. Pennsylvania Steam &c. Co., 4 Dutcher, 180; Kinney v. Central R. Co., 3 Vroom, 407; Hale v. N. J. Steam Nav. Co., 15 Conn., 539; Peck v. Weeks, 31 Conn., 145; Lawrence v. N. Y. R. Co., 35 Conn., 63; Kimball v. Rutland R. Co., 26 Vt., 247; Mann v. Birchard, 40 Vt., 326; Adams Ex. Co. v. Haynes, 42 Ill., 89, 458; Illinois Central v. Adams Ex. Co., 42 Ill., 474; Hawkins v. Great Western R. R. 17 Mich., 57; 18 id., 427; Baltimore & Ohio Co. v. Brady, 32 Md., 333; Levering v. Union Tr. Co., 42 Mo., 88. The Judge then reviews at length a strong current of decisions holding the more strict doctrine of the Supreme Court. See also Ohio & M. R. Co. v. Selby, 48 Ind., 471; Penn. Co. v. Woodworth, 23 Ohio St., 585.

3 Hoadley v. Northern Transp. Co., 115 Mass., 304; Hill Manuf. Co. v. Providence & N. Y. Steamship Co., 113 Mass., 495; as where goods are burned through the negligence of a railroad carrier employed by an express carrier, who has a stipulation for exemption from liability for losses by fire; Bank of Kentucky v. Adams Ex. Co., 3 Otto, 174.

4 Ante § 693.

pose a moral set off; he is not allowed to excuse his own negligent and tortious conduct, by alleging that the passenger was also and at the same time in the act of violating some other law of the State; i. e. travelling on a Sunday. Putting aside the contract leaves the carrier under the obligations imposed upon him by the common law.*

IV. GENERAL LIABILITY.

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§ 707. The minor duties of the carrier of passengers grow out of, and are deducible from that general responsibility which binds him to carry safely those whom he takes into his conveyance, as far as human foresight and care will go; that is, for the utmost care and diligence of very cautious persons. The rule is less stringent than that which applies to common carriers of goods. The carrier of property insures its safety; and the carrier of passengers does not insure their safety. The mind does not accept this proposition, without first accepting that element of public policy which gave rise to, and still enforces the strict liability imposed upon the common carrier of goods. If we eliminate this element from that rule of liability, reason demands that a carrier of passengers shall be held to a more strict rule of liability than a carrier of property.

Stated by itself, and considered affirmatively, the rule is sufficiently strict; the carrier of passengers engages that so far as human care and foresight can go, he will provide for their safe conveyance. The rule requires of him the utmost foresight as to possible dangers, and the utmost prudence in guarding against them; and the rule is interpreted with direct reference to the mode of conveyance employed by the carrier.“ And although the same language will express the rule as applied to all carriers of passengers, requiring of each the highest degree of foresight and the utmost care and diligence of very cautious persons, the rule is not satisfied by the use of the same degree of vigilance in the conduct

Carroll v. Staten Island R. Co., 58 N. Y., 126; S. C., 65 Barb., 32; Mahoney v. Cook, 26 Penn. St., 342; Phila. R. R. Co. v. Towboat Co., 23 How. U. S., 218; 29 N. Y., 115.

2 Ante §§ 377, 378; see contra, Feital v. R. R., 109 Mass., 398; Connolly v. City of Boston, 117 Mass., 64.

3 Christie v. Griggs, 2 Campb., 79; Camden & Amboy R. Co. v. Burke, 13 Wend., 611; Stokes v. Saltonstall, 13 Peters R., 181; Aston v. IIeaven, 2 Esp. R., 533; 2 Kent's Comm., 600, 601; Sharp v. Grey, 9 Bing. R., 457; 29 Barb., 602, 613; McPadden v. N. Y. Central R. R. Co., 44 N. Y., 478; Railroad Co. v. Pollard, 22 Wall., 341.

4 Christie v. Griggs, 2 Campb., 79; 1 Duer, 233; 11 N. Y., 416.

Bowen v. N. Y. Central R. Co., 18 N. Y., 403, 411.

6 Hegeman v. Western R., 13 N. Y., 9, 24.

of a train of cars moving at a rapid rate, as that required in the management of a stage coach moving more slowly. The diligence and forecast must be proportioned to the danger; they must be increased with the use of a new and dangerous motive power, and with the speed of the conveyance.1

§ 708. The rule requires of the proprietors of stages the utmost caution in respect to the manner and means by which their business is carried on. The coachman must have competent skill, and must use that skill with diligence; he must be well acquainted with the road he undertakes to drive; he must be provided with steady horses, with a coach and harness of sufficient strength, and properly made, and also with lights by night. If there be the least failure in any one of these things, the duty of the coach proprietors is not fulfilled, and they are answerable for any injury or damage that happens. But with all these things, and where everything has been done that human prudence can suggest for the security of the passengers, an accident may happen. The lights may in a dark night be obscured by a fog; the horses may be frightened, or the coachman may be deceived by a sudden alteration in objects near the road, by which he had been used to be directed on former journeys.3 The proprietors are not answerable for injuries happening to passengers from sheer accident or misfortune. The rule does not require of them all the care, vigilance and foresight of which the human mind is capable, under the highest tension. It requires of them all the care, vigilance and foresight which they can reasonably exercise under the circumstances, considering the mode of the conveyance. And the rule is to be interpreted prospectively.*

§ 709. By the rules of the common law every principal is liable for the acts or omissions of his agent, and every master for those of his servant within the scope of the employment for which the agent or servant is retained. These rules apply emphatically to carriers engaged in the business of transporting passengers for hire; and though, as a general rule, the person who contracts to perform a particular service for reward,

1 Hegeman v. Western Railroad, 13 N. Y., 9, 24; Philadelphia & Reading Railway Co. v. Derby, 14 How. U. S., 486; Steamboat New World v. King, 16 How. U. S., 474; Taylor v. Grand Trunk R. R., 48 N. H., 313; Beers v. Housatonic R. R. Co., 19 Conn., 566.

2 Crafts v. Waterhouse, 3 Bing. R., 321; Ingalls v. Bills, 9 Met. (Mass.), 1; Derwort v. Loomer, 21 Conn. R., 245; Caldwell v. Murphy, 1 Duer, 233; 11 N. Y., 416.

3 Tuller v. Talbot, 23 Ill., 357, 331; Derwort v. Loomer, supra; Hall v. Conn. River Steamboat Co., 13 Conn., 319.

4 Bowen v. N. Y. Central R. Co., 18 N. Y., 403, 410.

is responsible only for ordinary care and diligence, the law exacts from passenger carriers and their servants extraordinary care and diligence; and hence unless the loss with which they are sought to be charged, appears to have resulted from irresistible force or inevitable accident, they are not excused from liability. These rules have been often assailed as harsh and inequitable; but they are found in the code of nearly every civilized nation, ancient and modern, and are in reality founded on very manifest and sound reasons of public policy. If an injury results from the overturning of a stage, the true inquiry is whether the injury has been caused by the want of the utmost care and diligence in the carrier and his servants. Evidence which shows the want of such care and diligence is sufficient to establish his liability; but he is not liable for injuries arising from force or pure accident.1

One, who not being a common carrier of passengers, invites another to ride with him, is not liable for so great a degree of care; and a party engaging a carriage with horses and driver for such as may choose to ride, acting as an undertaker at a funeral, is not the principal answerable for the negligence of the driver.

§ 710. The law requires passenger carriers to provide and use coaches and other vehicles that are safe and sufficient for the journey, or business in which they are employed; it requires them to examine their conveyances, previous to the commencement of each trip or journey, and to prepare them carefully for the road.

Railroad companies are under the same obligation to provide safe and secure cars, with engines and machinery in good order. They are common carriers of passengers, and they are held to the same standard or degree of diligence as carriers by other and older modes of conveyance; with this qualification, that the foresight and vigilance required by the rule, must cover the roadway and rails, engines, cars, couplings and other appliances used in the business. They do not actually guarantee the construction or safety of the road and bridges used by them; and

1 Caldwell v. Murphy, 1 Duer, 233; S. C., 11 N. Y., 416.

2 Moffatt v. Bateman, 8 L. R. Ap., 115.

3 Boniface v. Relyea, 6 Robt., 397.

4 Bremner v. Williams, 1 Carr. & Payne, 414; 13 Wend., 611; Alden v. N. Y. Central R. Co., 26 N. Y., 102, considered and explained in McPadden v. N. Y. Central R. Co., 44 N. Y., 478.

Ware y. Gay, 11 Pick. R., 106; Sharp v. Grey, 9 Bing., 457; Ingalls v. Bills, 9 Met., 1; Farish v. Reigle, 11 Gratt. (Va.), 697.

613 N. Y., 9; 19 N. Y., 127 ; 34 N. Y., 404; 4 Cush., 400; 15 Gratt. (Va.), 230, 236; 56 Barb., 493; 4 Keyes, 108.

7 Toledo &c. R. R. v. Conroy, 61 Ill., 162: Withers v. North Kent R.R., H. & N., 969; Grote v. Chester & H. R. Co., 2 Exch. R., 251.

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they are answerable for the use of the highest skill and diligence in constructing them, and in keeping them in a safe and suitable condition.' They do not warrant the absolute safety, soundness, and construction of the cars and engines used by them; and they are bound for the use of the greatest skill and vigilance in their construction, and are liable for any discoverable defects in the material or in the manufacture of them; they cannot escape liability by showing that they were made by a skillful workman; they must answer for the proper construction and sufficiency of their cars and engines when they purchase them, to the same extent as when they furnish the materials and manufacture these conveyances for their own use. The rule of diligence covers all the means by which the business of conveying passengers is carried on; it requires that the railway carrier shall use the utmost vigilance, aided by the highest skill, to construct and perfect its road and track, and keep them in a safe condition; and to equip it with cars and engines adequate and sufficient for the safe conveyance of its passengers; and it requires that the carrier shall, in the performance of this duty, use every and all means which existing science furnishes or diseloses, to guard against or to remedy defects in the construction or management of its cars and other appliances so as to insure the safety of passengers.

'McElroy v. Nashua & Lowell R. Cor., 4 Cuslı., 400; Virginia Central R. Co. v. Sanger, 15 Gratt., Va., 230, 236; Brown v. N. Y. Central R. Co., 34 N. Y., 404; Brignoli v. Chicago & Great W. R. Co., 4 Daly, 182.

2 Readhead v. Midland R. Co., L. R. 2 Q. B., 412; L. R. 4 Q. B., 381; McPadden v. N. Y. Central R. Co., 47 Barb., 247; 44 N. Y., 478; 58 N. Y., 126, 137. * Hegeman v. Western R. R. Cor., 13 N. Y., 9. Here the court holds the company liable for an injury to a passenger arising from the breaking of an axle, in consequence of a latent defect not discernible on an external examination, provided the defect could have been discovered in the process of manufacturing the axle by the use of any test known to men skilled in the business. Carroll v. Staten Island R. R. Co., 58 N. Y., 126, 137. The case of Alden v. N. Y. Central R. R. Co., 26 N. Y., 102, goes still farther. Steinweg v. The Erie R. Co.,43 N. Y., 123. In this casé, and in Caldwell v. New Jersey Steamboat Co., 47 N. Y., 282, where an injury was caused by the explosion of a boiler, the court holds that a carrier of passengers by steam, where a defect in the cars or in the machinery is so apt to prove fatal to human life, is bound to use every precaution which human skill, care and foresight can provide, and to exercise similar care and foresight in ascertaining and adopting new improvements to secure additional protecton. Costello v. Syracuse, Binghamton &c. R. R. Co., 65 Barb., 92. Sharp v. Grey, 2 Bing., 459; Francis v. Cockrell, L. R. 5 Q. B., 184. Meier v. Penn. R. R., 64 Penn. St., 225; Caldwell v. New Jersey Steamboat Co., 47 N. Y., 282; Hegeman v. Western R. Cor., 13 N. Y., 9.

6 Idem; Carroll v. Staten Island R. R. Co., 58 N. Y., 126, 137; Costello v. Syracuse, Binghamton &c. R. R. Co., 65 Barb., 92; Curtis v. Rochester & S R. R. Co., 20 Barb., 282; S. C., 18 N. Y., 534.