safety, and to avoid

doing injury to others in the exercise of the same equal right of way. A person's failure to pull up in time, because his reins break, is no defence to an action for running down a footman. And on the other hand, a failure to observe approaching teams, as one is about crossing a street, is negligence; and his contributory negligence will defeat his action."

§ 728. The statute has no application to the meeting of railroad ears with common vehicles. The cars running in a grooved track, cannot turn to the right or to the left; and so a cart or carriage about to meet a railroad car must yield the whole track, turning either to the right or to the left as is most convenient. And when a railroad runs lengthwise upon a street or highway, common vehicles have the right to travel on the track, across it or lengthwise. Of necessity the company has the right of way, other carriages being obliged to give the cars a free track; in other respects, they are bound to run their cars with prudence and discretion, so as to avoid collision with other conveyances. They are not bound to run on the right hand track, where the road has two tracks, and they are bound to use all reasonable means to avoid a collision. Their liability for the acts of the driver is prescribed by the principles of the common law.

5

A railroad company has the right to run its cars at full speed in crossing a highway, where it does not violate any statute law or municipal regulation. A citizen driving along the road, must yield the right of way. He must look out for the trains at the crossings, before driving on to the railroad track; and if he see a train approaching, it is his duty to wait until it has passed.

9

On the canals, passenger or packet boats are entitled to a preference over freight boats; and when boats meet, they are required to observe the law and regulations, in passing each other;-a law similar to that of the road. In case of a collision, the injured party's right of action

1 Cotton v. Wood, 8 Com. Bench, 568, 571; 98 Eng. Com. Law, 571; Barker v. Savage, 45 N. Y., 191.

2 Cotterill v. Starkey, 8 C. & Payne, 691; Wakeman v. Robinson, 1 Bing., 212.

3 Moody v. Osgood, 54 N. Y. 488.

4 Hegan v. Eighth Avenue R. Co., 15 N. Y., 380; Isaacs v. Third Avenue R. R. Co., 47 N. Y., 122.

5 Altreuter v. Hudson River R. Co., 2 E. D. Smith, 151.

6 Whitaker v. Eighth Ave. R. R. Co., 51 N. Y., 295; 47 N. Y., 122.

7 Warner v. N. Y. Central R. Co., 44 N. Y., 465.

Ernst v. Hudson River R. Co., 33 N. Y., 66; Wilds v. the Same, 24 N. Y.,

9 Farnsworth v. Groot, 6 Cowen, 698; Houghton v. Walce, 64 Barb.,

613.

depends upon the same principles. Being free from fault, he can recover his damages against the negligent party.1

§ 729. Duties by the Way. The carrier of passengers is bound to observe his established and advertised regulations in respect to stopping for refreshments, rest or other purposes by the way; for the passenger is supposed to take his passage with an understanding, from which the law implies an agreement, entitling him to the accommodations offered.2 The time of departure from the intermediate places on the line, are frequently the main inducements in the choice of conveyance; and where there is a general usage to allow certain intervals for refreshment, the carriers cannot vary at their pleasure, those usages which are perhaps a reason for preferring their conveyance to the less convenient arrangement of other proprietors. But if the coachman refuses to wait, and actually leaves a passenger behind without good cause, it seems that the latter has a remedy, either in withholding the remainder of the fare, or, if that has all been paid, by an action on the case for a breach of the contract, namely, to convey the party to such a place at such a time; in which he may recover the actual damages he has sustained.3

A through passenger is entitled to the benefit of a regulation of a railroad company, allowing him and other passengers to stop by the way and afterwards renew the journey; and he is obliged to observe the regulation in its details, and where the rule requires it he must have his ticket indorsed by the conductor in order to entitle him to get upon another train and renew his journey upon the ticket. Prima facie a through ticket gives the right to a passage by a continuous journey; and so the right to stop over on the way, and afterwards renew the trip on the same ticket, depends upon the proof of some contract, regulation or custom allowing passengers that privilege. The ticket gives a right to ride by the usual and direct route; it does not give the right to go by an indirect and longer route.

5

§ 730. Carriers give special accommodations and privileges, a stateroom on a steamboat, or a drawing-room car on a railroad, for a certain increase in the fare; or charging specially for this additional accommodation. Railroads also sometimes issue tickets for specific trains, binding

1 Rathbun v. Payne, 19 Wend., 399; Dygert v. Bradley, 8 Wend., 469.

2 Angell on Car., § 533.

3 Jeremy on Car., 23.

Denny v. N. Y. Central & Hudson R. R. Co., 5 Daly, 50.

Hamilton v. N. Y. Central R. Co., 51 N. Y., 100; Barker v. Coflin, 31 Barb., 556.

6 Bennett v. N. Y. Central & Hudson R. R. Co., 5 Hun., 599.

7 Ellis v. Narragansett Steamship Co., 111 Mass., 146; Clark v. Burns, 118

Mass., 275; Cox v. N. Y. Central & H. R. Co., 6 Sup. Ct. (T. & C.), 409.

themselves to carry only on those trains. This course of business falls within recognized principles. But where a railroad company sells tickets, giving a right to a passage on any regular train, they are not at liberty to enforce a rule confining the use of the tickets to any given train; they must fulfill their contract. And they have the right to insist that passengers shall fulfill theirs, the tickets issued by them, being treated as evidences of contract, and not as contracts. Both parties are however bound by any restrictive words stamped or printed upon a ticket delivered to a passenger.3

§ 731. In passing a place of danger, it is the duty of a carrier by coach to give the passengers notice thereof, so as to give them the option of proceeding or not; and this notice must be given in plain terms so as to afford an opportunity of avoiding the danger. The want of such a notice, where it is the carrier's duty to give it, may be considered by the jury as evidence of negligence in the driver or agent, such as to make his principals liable in damages for any accident that may happen.

When a carrier is not answerable for the consequences of an accident, by reason of its being unavoidable, he is still bound to exercise the greatest diligence and care to anticipate and prevent to the utmost of his power subsequent injuries resulting or flowing from the same cause. If his carriage be broken or disabled, he is bound to stop instantly and have it repaired. The common carrier of goods, as we have seen, whose boat is stove in by running on a concealed snag under such circumstances as to make it an inevitable accident, is still answerable if he subsequently neglect the proper means of securing and landing the cargo. In like manner the carrier of passengers, though not responsible for an accident, may be chargeable with the consequences resulting from it, where it is within his power to prevent an injury after the accident has occurred, and he fails to do so.5 Indeed the slightest degree of neglect under such circumstances is sufficient to render him responsible in damages. His contract is not terminated by an inevitable accident; and hence he is still bound for the safety of his passengers, as far as human prudence and foresight will go; increasing the care with the danger.

1 Maroney v. Old Colony R., 106 Mass., 153.

2 Cheney v. Boston R., 11 Met., 121; Van Buskirk v. Roberts, 31 N. Y., 661. 3 Barker v. Coflin, 31 Barb., 556; Shedd v. Railroad Co., 40 Vt., 88; Boston R. v. Proctor, 1 Allen, 267; Boice v. Hudson River R. Co., 61 Barb., 611; 54 N. Y., 512.

* Dudley v. Smith, 1 Campb., 167; Jeremy on Car., 29.

5 Hall v. Connecticut River Steamboat Co., 13 Conn. R., 319.

6 Stokes v. Saltonstall, 13 Peters, 181; 4 Esp., 259; 25 Maine, 39. 'Indianapolis &c. R. R. Co. v. Horst, 3 Otto, 93 U. S. R., 291.

V. PASSENGER-CARRIERS BY WATER.

§ 732. In most respects passenger-carriers by water are bound by the same duties and obligations as carriers by land; but there are some rules and regulations incident to the conveyance of passengers by water which deserve a separate consideration. The law imposes a certain responsibility upon the carrier in respect to the business, regarding the inode of conveyance as important to be considered only in the application of the principle.1

The duty to receive and carry safely is the same on the water as on the land; and the rule of diligence is the same. In either case the carrier is answerable for the utmost care, vigilance and skill, on the part of himself and all persons employed by him. And this degree of care and vigilance and skill is required in every branch of his business. He must take care that his carriage is roadworthy, and that his vessel is seaworthy. His agents must be competent to perform the duties they are entrusted to discharge, and he is responsible for the fidelity and skill with which they discharge them.1

Fewer cases have arisen against carriers of passengers on the seas than on the land, for the reason that personal injuries at sea, other than those which are common to passengers and crew, seldom happen; and as to those which do occur, the master and sailors have every motive which the love of life can furnish, to avoid the dangers of the voyage and bring their vessel safely into port. Nevertheless, it does occasionally happen that the master fails in his duty, by the omission of that care and diligence which the law demands.5

§ 733. The statutes of New York make some provisions to secure the safety of passengers on the navigable waters of the State; imposing certain rules of navigation, and requiring that boats carrying passengers and navigated by steam, shall be provided with life-boats; prohibiting steamboats from racing and from generating an undue or unsafe quantity of steam. For a violation of these provisions the statute imposes certain penalties upon the master, engineer or person in charge; and while these provisions do not furnish the rule and measure of duty, under a contract to carry passengers, the carrier is certainly liable for any injury caused by, or in the act of, violating the statute. The master on board has the control of the vessel, and must answer for mismanagement or neglect of

113 Wend. R., 611.

22 Sumn. (Cir. Co.) R., 221.

3 Farwell v. Boston and Worcester Railroad Cor., 4 Met. R., 49.

13 Peters R.. 181.

* See statutes in the Appendix.

62 R. S., 948-956, 5th ed.

duty. The other officers and servants acting under his command, are not liable on the contract; they are only liable criminally.2

The statute of the State also provides, that every person navigating any boat or vessel for gain, who shall willfully receive so many passengers or such a quantity of other lading, on board of such boat or vessel that by means thereof the same shall sink or overset and the life of any human being be thereby endangered, shall upon conviction be adjudged guilty of a misdemeanor; and the statute further provides that the captain or other person having charge of a steamboat used for the conveyance of passengers, and the engineer having charge of the boiler or any apparatus used for the generation of steam, shall be adjudged guilty of a misdemeanor, when from ignorance or gross neglect or for the purpose of excelling any other boat in speed, they shall create or allow to be created such an undue quantity of steam as to burst the boiler or other apparatus or machinery connected therewith, endangering human life. These provisions emphasize the duties of passenger-carriers by water, using steam as the motive power.

§ 734. The rules of navigation, enforced by law, have grown up out of the usages of the sea; they have the same origin as our common law. They are the result of experience, and principally designed to regulate the course of steamboats and sailing vessels when they meet or pass each other or lie at anchor. Quite recently, for the purpose of preventing collisions, Congress has prescribed by statute the lights to be carried between sunset and sunrise by ocean-going steamers, and by steamboats and other craft navigating the bays, lakes, rivers, or other inland waters of the United States; the signals to be used in a fog or in heavy weather; and the rules to be observed in the sailing and steering of steam or sail vessels when they are about to meet or cross each other's path. The design of the statute is to specify and render certain the lights to be carried, and the manner in which they shall be carried, by different classes of boats and vessels, so that the position, character and course of a vessel may be discovered and known by others on the water. The statute being authorized by that provision of the Constitution giving Congress power to regulate commerce, necessarily supersedes all pre-existing rules of local or State authority, which are inconsistent with its provisions.5

1 Denison v. Seymour, 9 Wend., 9, 11; Snell v. Rich, 1 John. R., 305; Fenton v. Dublin Steam Packet Co., 8 Adolph. & Ellis, 835.

2 Noble v. Paddock, 19 Wend., 456; Barnes v. Cole, 21 Wend., 188. 33 R. S. of N. Y., 793, 5th ed.

4 R. S. of U. S., 820-825.

Hoffman v. Union Ferry Co., 47 N. Y., 176; the Corsica, 9 Wall., 630; City of Paris, 9 Wall., 634; Chesapeake, 1 Benedict R., 23, 30, 476.