the defendant is liable for the consequence, upon the same principle as a ship-owner who furnishes a vessel which is not seaworthy." And Alderson, J., said he was of the same opinion, and that "a coach proprietor is liable for all defects in his vehicle, which can be seen at the time of construction, as well as for such as may exist afterwards, and be discovered on investigation. The injury in the present case appears to have been occasioned by an original defect of construction; and if the defendant were not responsible, a coach proprietor might buy illconstructed or unsafe vehicles, and his passengers be without remedy."

This case goes far to support the plaintiff in the doctrine contended for by his counsel, as it would seem to place the case upon the ground that the coach proprietor must, at all events, provide a coach absolutely and at all times sufficient for the journey, and that he is a warrantor to the passenger to provide such a coach. But we incline to believe the learned judges gave too much weight to the comparison of Bosanquet, J., viz., that a coach must be roadworthy on the same principle that a ship must be seaworthy. We think the comparison is not correct, and that the analogy applies only where goods are carried, and not where passengers are transported. And no case has been cited, where a passenger has sued a ship-owner for an injury arising to him personally in not conducting him in a seaworthy ship. If more was intended by the learned court, than that a coach proprietor is bound to use the greatest care and diligence in providing suitable and sufficient coaches, and keeping them in a safe and suitable condition for use, we can not agree with them in opinion. To give their language the meaning contended for in the argument of the case at bar is, in fact, to place coach proprietors in the same predicament with common carriers, and to make them responsible, in all events, for the safe conduct of passengers, so far as the vehicle is concerned. But that the case of Sharp v. Grey is susceptible of being placed on the ground which we think tenable, namely, that negligence and not warranty lies at the foundation of actions of this description, may be inferred from the language of Mr. Justice Park, who, in giving his opinion, says: "This was entirely a question of fact. It is clear that there was a defect in the axle-tree; and it was for the jury to say whether the accident was occasioned by what, in law, is called negligence in the defendant, or not." And Tindal, C. J., who tried the cause before the jury, left it for them to consider whether there had been that vigilance which was required by the defend

6

ant's engagement to carry the plaintiff safely; thus apparently putting the case on the ground of negligence and not of warranty. See also Bretherton v. Wood, 3 Brod. & B. 54; S. C., Moore, 141; Ansell v. Waterhouse, 6 Mau. & Sel. 385; S. C., 2 Chit. 1.

The same question has arisen in this country, and the decisions exhibit a uniformity of opinion that coach proprietors are not liable as common carriers, but are made responsible by reason of negligence. In the case of Camden and Amboy Railroad Co. v. Burke, 13 Wend. 626 [28 Am. Dec. 488], the court say that the proprietors of public conveyances are liable at all events for the baggage of passengers; but as to injuries to their persons, they are only liable for the want of such care and diligence as is characteristic of cautious persons. And in considering the subject again in the case of Hollister v. Nowlen, 19 Id. 236 [32 Am. Dec. 455], they say, that "stage-coach proprietors, and other carriers by land and water, incur a very different responsibility in relation to the passenger and his baggage. For an injury to the passenger, they are answerable only where there has been a want of proper care, diligence, or skill; but in relation to baggage, they are regarded as insurers, and must answer for any loss not occasioned by inevitable accident or the public enemies." In a case which occurred in respect to the transportation of slaves, Boyce v. Anderson, 2 Pet. 155, Chief Justice Marshall, in giving the opinion of the court, says: "The law applicable to common carriers is one of great rigor. Though to the extent to which it has been carried, and in cases to which it has been applied, we admit its necessity and policy, we do not think it ought to be carried further, or applied to new cases. We think it has not been applied to living men, and that it ought not to be applied to them." So in the case of Stokes v. Saltonstall, 13 Id. 181, the question arose and was thoroughly discussed; and the same opinions are maintained as in the cases above cited from Wendell. And the whole subject is examined by Judge Story, in his treatise on bailments, secs. 592-600, with his usual learning; and his result is the same.

If there is a discrepancy between the English authorities which have been cited, we think the opinions expressed by Chief Justice Eyre and Chief Justice Mansfield are most consonant with sound reason, as applicable to a branch of the law comparatively new, and, though given at nisi prius, are fully sustained by the discussions which the same subject has undergone in the courts of our own country. We have said, as being most con

AX. DEC. VOL. XLIII-23

sonant with sound reason, or good common sense, as applied to so practical a subject; because, if such a warranty were imposed by force of law upon the proprietors of coaches and other vehicles for the conveyance of passengers, they would in fact become the warrantors of the work of others, over whom they have no actual control, and-from the number of artisans employed in the construction of the materials of a single coach— whom they could not follow. Unless, therefore, by the application of a similar rule, every workman shall be held as the warrantor, in all events, of the strength, sufficiency, and adaptation of his own manufactures to the uses designed-which, in a community like ours, could not be practically enforced-the warranty would really rest on the persons purchasing the article for use, and not upon the makers.

If it should be said, that the same observations might be applied to ship-owners, the answer might be given, that they have never been held as the warrantors of the safety of the passengers whom they conveyed; and as to the transportation of goods, owners of general ships have always been held as common carriers, for the same reasons that carriers on land are bound for the safe delivery of goods intrusted to them. But as it respects the seaworthiness of a ship, the technical rules of law respecting it have been so repeatedly examined, and the facts upon which they rest so often investigated, that the questions which arise are those of fact and not of law, and in a vast proportion of instances depend upon the degree of diligence and care which are used in the preservation of vessels, and practically resolve themselves into questions of negligence; so that the evils are very few that arise from the maintenance of the doctrine that a ship must be seaworthy in order to be the subject of insurance.

The result to which we have arrived, from the examination of the case before us, is this: That carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient, and suitable coaches, harnesses, horses, and coachmen, in order to prevent those injuries which human care and foresight can guard against; and that if an accident happens from a defect in the coach, which might have been discovered and remedied upon the most careful and thorough examination of the coach, such accident must be ascribed to negligence, for which the owner is liable in case of injury to a passenger, happening by reason of such accident. On the other hand, where the accident arises from a hidden and internal defect, which a careful and thorough examination would not disclose,

and which could not be guarded against by the exercise of a sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury, but the misfortune must be borne by the sufferer, as one of that class of injuries for which the law can afford no redress in the form of a pecuniary recompense. And we are of opinion that the instructions, which the defendants' counsel requested might be given to the jury in the present case, were correct in point of law, and that the learned judge erred in extending the liability of the defendants further than was proposed in the instructions requested.

The point arising on the residue of the instructions was not pressed in the argument; and we see no reason to doubt its correctness, provided the peril to which the plaintiff was exposed arose from a defect or accident for which the defendants were otherwise liable: Jones v. Boyce, 1 Stark. 493.

New trial granted.

ACTIONS AGAINST CARRIERS FOR INJURIES SUSTAINED BY PASSENGERS. Although a few old English cases seem to have countenanced the doctrine that common carriers of passengers are liable as insurers of the safety of the passengers whom they undertake to carry, it has been long since settled, both in England and in the United States, that they are only liable for neg. ligence. The doctrine of the principal case on this point is now firmly established: 2 Redfield on Railways, 216 et seq., 5th ed.; Ang. on Carriers, sec. 570; Ford v. London & S. W. R. W. Co., 2 Fost. & Fin. 730; Pym v. Greas Northern R. W. Co., Id. 619; Readhead v. Midland R. W. Co., L. R., 2 Q. B. 412; S. C., L. R., 4 Q. B. 379; S. C., Thompson on Carriers of Passengers, 124; Pennsylvania R, R. Co. v. Roy, 102 U. S. 451; Railroad Co. v. Pollard, 22 Wall. 341; Stokes v. Saltonstall, 13 Pet. 181; Philadelphia & R. R. R. Co. v. Boyer, 97 Pa. St. 91; Meier v. Pennsylvania R. R. Co., 64 Id. 225; S. C., 3 Am. Rep. 581; Carroll v. Staten Island R. R. Co., 58 N. Y. 126; S. C., 17 Am. Rep. 221; McPadden v. New York C. R. R. Co., 44 N. Y. 478; S. C., 4 Am. Rep. 705; Frink v. Potter, 17 Ill. 406; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 228; Fairchild v. California Stage Co., 13 Cal. 599; Sawyer v. Hannibal & S. J. R. R. Co., 37 Mo. 240; McClary v. Sioux City & P. R. R. Co., 3 Neb. 44; S. C., 19 Am. Rep. 631.

DEGREE OF CARE DEMANDED OF CARRIERS OF PASSENGERS.-Carriers of passengers for hire are bound to observe the utmost care and caution, and they are responsible to their passengers for such injuries, received by them in the course of their transportation, as might have been avoided or guarded against by the exercise of extraordinary vigilance, aided by the highest skill: Story on Bailm., sec. 601; 2 Redf. on R'ys, 5th ed., 216; Pennsylvania Railroad Co. v. Roy, 102 U. S. 451; Jamison v. San José & S. C. R. R. Co., 55 Cal. 593; Fairchild v. California Stage Co., 13 Id. 599; Lemon v. Chanslor, 68 Mo. 340; S. C., 30 Am. Rep. 799; Taylor v. Grand Trunk R. W. Co., 48 N. H. 304; S. C., 2 Am. Rep. 229; McPadden v. New York C. R. R. Co., 44 N. Y. 478; S. C., 4 Am. Rep. 705; Keokuk Packet Co. v. True, 88 Ill. 608; Chicago, B. & Q. R. R. Co. v. George, 19 Id. 510; Frink v. Potter, 17 Id. 406; Thomp. Car. Pass. 200; Warren v. Fitchburg R. R. Co.. 8 Allen, 233; Eaton

v. Boston & L. R. R. Co., 11 Id. 505; Simmons v. New Bedford, V. & N. S. Co., 97 Mass. 368, the last three citing the principal case.

The language of the American judges and text-writers on this subject is very strong. A few quotations will convey to the reader's mind a clear idea of the established American doctrine on this point. Story, in his work on bailments, sec. 601, says: "As they undertake for the carriage of human beings, whose lives and limbs and health are of great importance, as well to the public as to themselves, the ordinary principle, in criminal cases, where persons are made liable for personal wrongs and injuries arising from slight neglect, would seem to furnish the true analogy and rule. It has been accordingly held, that passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, for the utmost care and diligence of very cautious persons, and of course, they are responsible for any, even the slightest, neglect." Mr. Justice Grier, delivering the opinion of the court in Philadelphia & R. R. R. Co. v. Derby, 14 How (U. S.) 468, 486, said: "When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of 'gross." Shaw, C. J., delivering the opinion of the court in McElroy v. Nashua & L. R. R. Corp., 4 Cush. 400, 402, said: “As passenger carriers, the defendants were bound to the most exact care and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of passengers." Church, C. J., delivering the opinion of the court in Caldwell v. New Jersey Steamboat Co., 47 N. Y. 288, said: “By these authorities it is established, that the carrier of passengers, especially in vehicles and conveyances propelled by steam, where the consequences of an accident from defective machinery are almost certainly 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 protection. If a defect ex

isted, which could have been avoided or remedied by any means which science had furnished or disclosed, the defendant should have employed such means, although not generally used." And in the subsequent case of Carroll v. Staten Island R. R. Co., 58 N. Y. 138; S. C., 17 Am. Rep. 228, in the same court, Andrews, J., delivering the opinion, said: "Carriers of passengers are not insurers of the safety of persons whom they carry; nor do they undertake that the vessels or vehicles which they use, or that the machinery they employ, are absolutely free from defects. They are held to the exercise of the utmost skill and care in the construction and management of both; and when they undertake to carry by the dangerous agency of steam, and injury is occasioned to passengers thereby, they can not escape liability, unless it appears that the accident happened from causes beyond their control, and to which neither the negli gence of the carrier, or of the manufacturer of the machinery, or of those employed to manage it, contributed." In Union Pacific R. R. Co. v. Hand, 7 Kan. 380, 382, Kingman, C. J., speaking for the court, said: "At the request of the plaintiff below, the court instructed the jury, that 'if the defendant could have prevented the accident by the utmost human sagacity and foresight, with respect to their track, then the defendant is liable.' This is established law." In the case of Baltimore & O. R. R. Co. v. Wightman, 29