Слике страница
PDF
ePub

9. As railway passenger carriers are bound to use all reasonable precautions against injury to passengers, it will be natural to measure these precautions by those in known use in the same business and the same vicinity or country. So that, if the company fail to adopt the most approved modes of construction and machinery in known use in the business, and injury occur in consequence, they will be responsible, and very justly. As was said in a late English case 20: The company 66 was bound to use the best precautions in known practical use to secure the safety of their passengers; but not every possible preventive which the

tensively discussed in some late English cases. In Taylor v. Caldwell, 32 L. J. Q. B. 164; s. c. 3 B. & S. 826, the plaintiff had contracted with defendant for the privilege of delivering four lectures, on four different days, at the Surrey Gardens and Music Hall; but before the stipulated time arrived the buildings were destroyed by an accidental fire; and it was held that no recovery could be had. But in the very recent case of Appleby v. Meyers, 12 Jur. N. S. 500, C. B., June, 1866, it was decided, that where the plaintiff undertook to erect certain machinery, and to put the same in condition for use, and to keep the whole in order, under fair wear and tear for two years from the date of completion, and the building wherein the erections were to be made was destroyed by fire, without the fault of the defendant, after the erections were partially made, that the plaintiff was entitled to compensation for what he had done, as upon a quantum meruit.

These cases, and many others in the English books upon analogous subjects, such as claims for rent where the buildings are consumed by fire during the term, have professed to go upon the basis of the contract, either express or implied, between the parties. It has been said, that where the party contracts absolutely and unqualifiedly for a certain result, he must take the risk of all accidents, it being regarded as his own folly not to stipulate for such contingency. But this rule cannot with any propriety be applied to implied undertakings, which are nothing more than the reasonable implications of the law from a given state of facts. And in making such implications the law will annex all reasonable and just conditions. So that in regard to the undertakings of carriers of goods and passengers, the law has attached certain conditions to the general undertaking, implied from entering upon the transit, that the thing or the person is to be carried safely through in a reasonable or the ordinary time, unless prevented, in the case of carriers of goods, by some invincible obstacle, like the act of God, or the public enemy, and in the case of carriers of passengers, that it shall be so done, unless prevented by some agency not under the carrier's control, by the exercise of the strictest care and diligence consistent with the successful conduct of the business.

20 Ford v. London & So. Western Railw., 2 F. & F. 730, by Chief Justice Erle.

highest scientific skill might have suggested." Hence if companies see fit to adopt an untried machine or mode of construction, the experiment will be at their own risk, and if injury occur to passengers thereby they are responsible.

10. In an important case 21 appealed from the Province of Canada, and heard before the Judicial Committee of the Privy Council, it was held, that where an injury accrues from the improper construction of a railway, the fact of its having given way will amount to prima facie evidence of its insufficiency, and the evidence may become conclusive from the absence of any proof on the part of the company to rebut it. A railway company, in the formation of its line, is bound to construct its works in such a manner as to be capable of resisting all violence of weather, which in the climate through which the line runs might be expected, though rarely, to occur. But where the company had employed skilful engineers, and used all ordinary precautions in the construction, to have the work properly done, and the giving way of the railway was caused by a storm of unusual magnitude, these facts should be brought to the attention of the jury, and their bearing upon the question of negligence fully explained to them; but as the verdict in this case seemed, on the whole, in conformity with the rules of law applicable to the evidence, the judgment thereon was affirmed.

11. Although the happening of damage to a passenger, while carried by common carriers of passengers, is presumptive evidence of negligence on their part, they are not responsible if their neglect did not contribute to the damage.22 And the passenger-carrier is at liberty to stipulate for exemptions from responsibility except for wilful or gross neglect or recklessness.23

21 Great Western Railw. Co. v. Fawcett; Same v. Braid, 1 Moore P. C. C. N. S. 101; 9 Jur. N. S. 339.

22 Tennery v. Pippinger, 1 Wallace, Philadelphia R. 543. See also Thayer v. St. Louis, &c., Railw., 22 Ind. R. 26.

23 Boswell v. Hudson River R. R. 5 Bosw. 699.

[blocks in formation]

who carry him.

One crossing a railway track must look out for trains, or he cannot recover. Rushing across a track when a train is approaching is foolhardy presumption.

9. Plaintiff affected by negligence of those 19. One cannot recover for an injury the re

10. Fault on one part will not excuse the

other, if he can avoid committing the
injury.

11. Negligence to be determined by the jury,
where evidence conflicts.

[blocks in formation]

§ 177. 1. To the liability of a railway company, as passenger carriers, two things are requisite, that the company shall be guilty of some negligence which, mediately or immediately, produced or enhanced the injury; and that the passenger should not *have been guilty of any want of ordinary care and prudence which directly contributed to the injury; since no one can recover for an injury of which his own negligence was in whole, or in part, the proximate cause.1

1 Robinson v. Cone, 22 Vt. R. 213; Butterfield v. Forrester, 11 East, 60; Simpson v. Hand, 6 Wharton, 311; Rathbun v. Payne, 19 Wend. 399; Barnes v. Cole, 21 Id. 188; Hartfield v. Roper, Id. 615.

In this last case the rule was carried to the extreme verge in denying the recovery, and it seems at variance with the more recent cases upon the subject. See Robinson v. Cone, 22 Vt. 213; and Lynch v. Nurdin, infra; also, Birge v. Gardiner, 19 Conn. R. 507; Collins v. Albany & Sch. Railw., 12 Barb. 492. In the late case of Martin v. The Great N. Railw., 30 Eng. L. & Eq. 473, a query is made whether, if a passenger is hurt in a station of a railway company,

2. But one is only required to exercise such care as prudent persons, under his particular circumstances, might reasonably be expected to exercise. Hence a very young child, or perhaps one deprived of some of the senses, or who was laboring under mental alienation, or a very timid or feeble person, would not be precluded from recovering for the negligence of others, when persons of more strength or courage or capacity might have escaped its consequences.2

after being booked as a passenger, and while going to the train, through the defective lighting of the station, he is precluded from a recovery by reason of his own negligence having contributed to the injury, a distinction being attempted between negligence which is a violation of contract, and that which is only a violation of the general duty to use your own so as not needlessly to injure

others.

We allude to this, not as having marked out any intelligible ground of distinction, but as another indication of a disposition to restrain the universal application of the former rule, that the slightest possible negligence on the part of the plaintiff will, in all cases, prevent a recovery. See Ohio & Miss. Railw. v. Gullett, 15 Ind. R. 487, where, in a suit against a railway company for injuries received while standing on the platform of one of the company's stations, by the falling of wood from a train passing by, alleged to have been carelessly loaded, run, and managed, it is held, that if the injury resulted from any negligence on the part of the plaintiff, he cannot recover.

See also Spencer v. Utica & Sch. Railw., 5 Barb. 337; Brand v. Troy & Sch. Railw., 8 Barb. 368; Richardson v. The Wil. & R. Railw., 8 Rich. 120. This was an action in favor of the master for killing his slave while asleep upon the track of the railway. The court held that the negligence of the slave would prevent the recovery. Galena & Ch. Railw. v. Fay, 16 Ill. R. 548. In Fairchild v. The California Stage Co. 13 Cal. R. 599, where an injury occurred to a person travelling on a stage-coach, it is held that in case of injury, the presumption is, primâ facie, that it occurred by the negligence of the coachman.

2 Robinson v. Cone, 22 Vt. R. 213; Lynch v. Nurdin, 1 Ad. & El. (N. s.) 29. In this case, Denman, C. J., says, " Ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff's situation." Beers v. The Housatonic Railw., 19 Conn. R. 566; Neal v. Gillett, 23 Conn. R. 437. In a recent trial in Connecticut, before Mr. Justice Seymour of the Superior Court, a case of some interest was submitted to a jury. The facts were, that the plaintiff, a child two years old, who sued by guardian, while on the track of the Norwich & Worcester Railway, was run over by a train, and had a leg and hand amputated in consequence. The learned judge left the question of negligence, in both parties, to the jury, saying he did not think negligence could fairly be imputed to so young a child, and that the negligence of the parents, if any, would not hinder plaintiff's recovery, if the defendants, after discovering the plaintiff on the track, might have prevented the injury, which is certainly the

And although the plaintiff's misconduct may have contributed remotely to the injury, if the defendant's misconduct was the more common test of liability in similar cases. The jury gave the plaintiff a verdict for $1,800. But the case will doubtless go before the full bench, and there may be other questions involved. Daley v. Norwich & Worcester Railw., 9 Am. Railw. Times, No. 50; Ranch v. Lloyd, ante, § 133, pl. 7, 10, 11. The case of Daley v. Norwich & Wor. Railw. came before the Supreme Court, 26 Conn. R. 591, where Mr. Justice Ellsworth reviews the cases, and sustains the doctrine of the text to the fullest extent. Pennsylvania Railw. v. Kelly, 31 Penn. St. And the fact that the person injured was trespassing at the time is no excuse, unless he thereby invited the acts, or his negligent conduct contributed to it. Daley v. Norwich & Worcester Railw., supra; Brown v. Lynn, 31 Penn. St. 510; Cleveland, Co., & Cin. Railw. v. Terry, 8 Ohio St. 570.

372.

But in Singleton v. Eastern Counties Railw. 7 C. B. (N. S.) 287, it was held, that where a child three and a half years old strayed upon a railway, and had its leg cut off by a passing train, in the absence of all evidence to show that the child came upon the track through the negligence or default of the company, they were not responsible. But the court disclaims all purpose of qualifying the former cases. And in Waite v. Northeastern Railw. Co., El. Bl. & Ellis, 719, where a child too young to take care of itself, and being under the charge of another, who took tickets for both, and while waiting for the train the child was injured by an accident, which was caused by the joint negligence of the one who had the child in charge, and the company's servants, it was held the child could not maintain an action against the company.

This was in the Exchequer Chamber, and the facts were, that where a child five years old, in the care of his grandmother, at a railway station, was injured by a goods train, in crossing the track to the passenger carriages, the jury having found negligence, both in the servants of the company, and in the grandmother, it was held that the plaintiff was so identified with his grandmother, that by reason of her negligence an action in his name could not be maintained against the company. 5 Jur. N. S. 936. See also Hughes v. Macfie, 2 H. & C. 744 10 Jur. N. S. 682, where a similar rule is declared to that in Singleton v. Eastern Counties Railw., supra.

In Oldfield v. N. Y. & Harlem Railw., 3 E. D. Smith, 103, it is held, that negligence is not presumed, as matter of law, from a child six or seven years of age, being unattended in the streets of a city. Whether permission to the child to go into the streets, in that way, is negligence, is for the jury to determine, from the circumstances of each case. The company will be held responsible for any unsafe arrangement in getting over the track, as for an injury by reason of an unsafe bridge. Longmore v. Great Western Railw. Co., 19 C. B. N. S. 183; Nicholson v. L. & Y. Railw. Co., 3 H. & C. 534. So where the train is longer than the platform, and a passenger is injured by jumping to the ground, and the jury award £500 damages. Foy v. London & Br. & So. Coast Railw. Co., 18 C. B. N. S. 225. So where there was a swing gate at a level crossing, and no one to tend it, 100 trains passing daily. Bilbee v. Same, Id., 584; Stapley v. L. &

VOL. II.

13

« ПретходнаНастави »