their obligation safely to carry and deliver but the act of God or the public enemy." But the carrier is not an insurer against fraud being perpetrated upon the consignor.

The opinion of the court here extends the liability of the carrier to the extent of making it an insurer against fraud perpetrated upon appellees. No negligence is shown on the part of appellant to create a liability against it. No fraud or mistake on the part of the carrier is shown. The fraud that was perpetrated was on the consignor, and not on the carrier.3

...

GEISMER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY.

102 N. Y. 563. 1886.1

Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made at the October term, 1884, which overruled defendant's exceptions and directed judgment for plaintiff on a verdict. (Reported below, 34 Hun, 50.)

This action was brought to recover damages for alleged negligence on the part of defendant in the performance of a contract for transportation of live stock. . . .

EARL, J. We are of opinion that the learned trial judge fell into error as to rules of law of vital and controlling importance in the disposition of this case.

A railroad carrier stands upon the same footing as other carriers, and may excuse delay in the delivery of goods by accident or misfortune not inevitable or produced by the act of God. All that can be required of it in any emergency is that it shall exercise due care and diligence to guard against delay and to forward the goods. to their destination; and so it has been uniformly decided. (Wilbert v. N. Y. & Erie Railroad Co., 12 N. Y. 245; Blackstock v. N. Y. & Erie Railroad Co., 20 id. 48.)

In the absence of special contract there is no absolute duty

3 Notes, 30 American L. Rev. 766; 3 Law Series Missouri Bull. 48; 3 Virginia L. Rev. 458.

See Mac Asbill, Rights of Parties and Duties of Carriers under Order Notify Bills of Lading." 6 Minnesota L. Rev. 271, dealing with shipments to the order of the shipper, where the bill of lading is sent to a bank, the carrier being directed to notify the buyer of the goods' arrival, and the bank being directed to indorse and deliver the bill of lading to the buyer upon payment, or upon his acceptance of a draft drawn upon him.

1 Most of the statement of the case and the argument of counsel are omitted. ED.

resting upon a railroad carrier to deliver the goods intrusted to it within what, under ordinary circumstances, would be a reasonable time. Not only storms and floods and other natural causes may excuse delay, but the conduct of men may also do so. An incendiary may burn down a bridge, a mob may tear up the tracks or disable the rolling stock or interpose irresistible force or overpowering intimidation, and the only duty resting upon the carrier, not otherwise in fault, is to use reasonable efforts, and due diligence to overcome the obstacles thus interposed, and to forward the goods to their destination.

While the court below conceded this to be the general rule, it did not give the defendant the benefit of it because it held that the men engaged in the violent and riotous resistance to the defendant were its employees for whose conduct it was responsible, and in that holding was the fundamental error committed by it. It is true that these men had been in the employment of the defendant. But they left and abandoned that employment. They ceased to be in its service or in any sense its agents, for whose conduct it was responsible. They not only refused to obey its orders or to render it any service, but they willfully arrayed themselves in positive hostility against it, and intimidated and defeated the efforts of employees who were willing to serve it. They became a mob of vicious lawbreakers to be dealt with by the government, whose duty it was, by the use of adequate force, to restore order, enforce proper respect for private property and private rights and obedience to law. If they had burned down bridges, torn up tracks, or gone into passenger cars and assaulted passengers, upon what principle could it be held that as to such acts they were the employees of the defendant for whom it was responsible? If they had sued the defendant for wages for the eleven days when they were thus engaged in blocking its business, no one will claim that they could have recovered.

It matters not, if it be true, that the strike was conceived and organized while the strikers were in the employment of the defendant. In doing that they were not in its services or seeking to promote its interests or to discharge any duty they owed it; but they were engaged in a matter entirely outside of their employment and seeking their own ends and not the interests of the defendant. The mischief did not come from the strike-from the refusal of the employees to work, but from their violent and unlawful conduct after they had abandoned the service of the defendant.

Here upon the facts, which we must assume to be true, there was no default on the part of the defendant. It had employees who were ready and willing to manage its train and carry forward the

stock, and thus perform its contract and discharge its duty; but they were prevented by mob violence which the defendant could not by reasonable efforts overcome. That under such circumstances the delay was excused has been held in several cases quite analogous to this which are entitled to much respect as authorities. (Pittsburg & C. R. R. Co. v. Hogen, 84 Ill. 36; Pittsburg, C. W. L. R. Co. v. Hallowell, 65 Ind. 188; Bennett v. L. S. & M. S. R. R. Co., 6 Am. & Eng. R. Cas. 391; I. & W. L. R. R. Co. v. Juntzen, 10 Bardwell, 295.)

The cases of Weed v. Panama R. R. Co. (17 N. Y. 362), and Blackstock v. N. Y. & Erie R. R. Co. (1 Bosw. 77; affirmed, 20 N. Y. 48), do not sustain the plaintiff's contention here. If in this case the employees of the defendant had simply refused to discharge their duties, or to work, or had suddenly abandoned its service, offering no violence, and causing no forcible obstruction to its business, those authorities could have been cited for the maintenance of an action upon principles stated in the opinions in those cases.2

We are, therefore, of opinion that this judgment should be reversed and a new trial granted, costs to abide event.

All concur.

Judgment reversed.

2 Cf. Sims v. Midland Ry. Co. [1913] 1 K. B. 103.

CHAPTER XI.

LIABILITY TO PASSENGERS AND GUESTS.

DODGE v. BOSTON AND BANGOR STEAMSHIP
COMPANY.

148 Mass. 207. 1889.1

Tort for personal injuries occasioned to the plaintiff while going ashore from one of the defendant's steamboats. . . .

KNOWLTON, J.. [After deciding that the plaintiff was a passenger at the time of the accident:] Because a passenger's life and safety are necessarily intrusted in a great degree to the care of the carrier who transports him, the law deems it reasonable that the carrier should be bound to exercise the utmost care and diligence in providing against those injuries which human care and foresight can guard against. This rule is held not only in our own State and in England, but all over the United States. It applies not only to carriers who use steam railroads but to those who use horse railroads, stagecoaches, steamboats, and sailing vessels. It applies at all times when, and in all places where, the parties are in the relation to each other of passenger and carrier; and it includes attention to all matters which pertain to the business of carrying the passenger.

In Readhead r. Midland Railway, L. R. 2 Q. B. 412, it is said that a 66 carrier of passengers for hire was bound to use the utmost care, skill, and diligence, in everything that concerned the safety of passengers." In Railroad Co. v. Aspell, 23 Penn. St. 147, carriers of passengers are said to be responsible for "any species of negligence, however slight, which they or their agents may be guilty of." In Warren v. Fitchburg Railroad, 8 Allen 227, the principle was applied to providing for a passenger a safe and convenient way and manner of access to the train. In Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co.. 97 Mass. 361, it was applied to the duty of a carrier to protect passengers from the misconduct or negligence of other passengers. Gaynor v. Old Colony & Newport Railway, 100 Mass. 208, was

1 Most of the statement of the case and part of the opinion are omitted. .ED.

a case where it appeared that the defendant did not provide proper safeguards against injury for a passenger leaving the place where he alighted from the cars. MR. JUSTICE COLT said, in the opinion: "The plaintiff was a passenger, and while that relation existed the defendants were bound to exercise towards him the utmost care and diligence in providing against those injuries which can be avoided by human foresight. He was entitled to this protection, so long as he conformed to the reasonable regulations of the company, not only while in the cars, but while upon the premises of the defendants; and this requires of the defendants due regard for the safety of passengers, as well in the location, construction and arrangement of their station buildings, platforms and means of egress as in their previous transportation." See also language of Chief Justice Shaw, in McElroy v. Nashua & Lowell Railroad, 4 Cush. 400.

Difficulty in the application of this rule has sometimes come from an improper interpretation of the expressions "utmost care and diligence," "most exact care," and the like. These do not mean the utmost care and diligence which men are capable of exercising. They mean the utmost care consistent with the nature of the carrier's undertaking, and with a due regard for all other matters which ought to be considered in conducting the business. Among these are the speed which is desirable, the prices which passengers can afford to pay, the necessary cost of different devices and provisions for safety, and the relative risk of injury from different possible causes of it. With this interpretation of the rule, the application of it is easy. As applied to every detail, the rule is the same. The degree of care to be used is the highest; that is, in reference to each particular it is the highest which can be exercised in that particular with a reasonable regard to the nature of the undertaking and the requirements of the business in all other particulars. Warren v. Fitchburg Railroad, 8 Allen 227. Lebarron v. East Boston Ferry, 11 Allen 312, 315. Taylor v. Grand Trunk Railway, 48 N. H. 304, 316. Tuller v. Talbot, 23 Ill. 357.3. . .

2" A carrier having limited fitness and capacity to transport passengers, and whose primary business is to transport its logs, is not held to the standard of perfection of an ideal road, but must exercise the highest degree of care practicable under the circumstances.' Campbell v. Duluth & N. E. R. Co. (1909), 107 Minn. 358, 363.

3 Oviatt v. Dakota Cent. Ry. Co. (1890), 43 Minn. 300; Astin v. Chicago &c. R. R. (1910), 143 Wis. 477.

"Since the decision in Stokes v. Saltonstall, 13 Pet. 181, and Railroad Company v. Pollard, 22 Wall. 341, it has been settled law in this court that the happening of an injurious accident is in passenger cases prima facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care), the burden then rests upon the carrier to show that its whole duty was performed, and that the