DUE CARE.
Snowed up.--Pacific Railway.--Passenger Carriers not
Insurers.--Company must use Due Care.--Defective Machinery.--Broken
Axle.--Company must account for Accident.--Difference between Goods
and Men.--What is Due Care.--Latent Defects in Cars.--English
Rule.--Rule in New York.--Moralizing.--Railroad Death-rate.
As the train came to a solemn pause in a deep cutting a number of us
gathered together in the warm and cosy Pullman, the _ne plus ultra_
of railway cars, far surpassing in comfort and luxury an English or
Continental first-class carriage, though not adorned as are the Italian
cars with those abominations of the sterner sex--tidies for the head
to rest against. And here, each in turn related railroad adventures
and accidents; tales which excited laughter and joyous merriment, of
engagements, love scenes, marriage ceremonies, undress exhibitions
in sleeping cars; tales of sorrow and grief, collisions, explosions,
helpless people crushed, boiled, roasted to death; dozens plunged
into eternity in a moment by the simple derangement of a switch, the
starting of a rail, a flaw in a wheel, a sleepy pointsman, or a weary
telegraph clerk.
One told that, in India, railroad traffic is seriously affected by
the stagnation of the matrimonial market, a wedding there being an
occasion of great pomp and the gathering together of friends; that
the railways are breaking down the castes, as the conductors tumble
into the same car proud, lofty, blue-blooded Brahmins, poor despised
Pariahs, blood-thirsty Thugs, sun-worshipping Parsees, and learned
Mussulmans; and go together these must, notwithstanding the dogmas of
Shasters, Vedas, and Korans, or else jump out and die. Another told
of having found nuggets of gold, the remains of melted jewelry, among
the charred and blackened remains of unfortunates consumed at the
Komoka (Ont.) accident. While a third in graphic terms described the
efforts made to break through a snow blockade on the Central Pacific;
the snow was a solid mass twenty feet high in front of the plough; ten
engines were at work; they backed up about a mile, then reversing made
a spring forward, locomotives shrieking and screeching, men yelling
and gesticulating, volumes of smoke pouring forth from every funnel
and hanging like a pall over the scene; the loud rumbling of the huge
iron-beaked monster flying over the track, the hissing, roaring din and
the chorus of shrieking demons behind made up a scene that would blanch
the boldest cheek. With the force of a thousand giants the plough
rushed upon the snow and hurled it in enormous masses, like mighty
billows, down the mountain sides, crushing through the lofty pines, and
glistening and gleaming like frosted silver as it fell upon the frozen
cataract below; but the charge was well nigh in vain.
Thus with the flow of reason and the feast of soul passed some weary
hours. At last, one gentleman turning to me, said:--
“I believe that a carrier of goods is liable for his freight in every
event; is a carrier of passengers responsible to the same extent?”
“No,” I responded, “all jurists are agreed that railway companies
are only liable for negligence, either proximate or remote, and not
for injuries happening to passengers from unforeseen accident or
misfortune, where there has been no negligence or default on the part
of the carrier;[476] still it is the bounden duty of a company to
use due and proper care and skill in conveying travellers; and this
duty laid upon them does not arise from any contract made between the
company and the persons conveyed by them, but is one which the law
imposes. If railways are bound to carry, they are also bound to carry
safely; it is not sufficient for them to bring merely the dead body
of their passenger to the end of the journey, and there deliver up
the remains, parboiled or cut into sausage meat, to his executors and
administrators.[477] The fact that injury is suffered by any one while
upon the company’s train, as a passenger, through any failure of the
means of safe transportation, is regarded as _primâ facie_ evidence
of their liability;[478] and such evidence, if not rebutted by the
company, will justify a verdict against them which a court will not set
aside.”[479] And having delivered myself of this harangue, I looked
around with a self-satisfied air and rubbed my hands with invisible
soap, in imperceptible water, _à la_ Tom Hood.
“Yes,” said an engineer, “a company is bound to use the best
precautions in known practical use to secure the safety of their
passengers,[480] but not every possible preventive which the highest
scientific skill might have suggested,[481] nor every device which
ingenuity might imagine.[482] But it appears hard that a company
should be held liable--as they have been--for injuries arising from
a crack in the axle of a car indiscoverable by any practical mode
of examination,[483] and be bound to provide roadworthy carriages,
absolutely and irrespectively of negligence.”
“Yes, that is the rule in New York State, but it has been somewhat
questioned in later cases, and in fact it was laid down that a company
is not responsible for injuries caused by _vis major_, as the breaking
of a rail through extreme cold.”[484]
“Wal, strangers,” quoth a regular long, lean, lanky down-easter, “look
ye har, down in my State, a carrier is bound to use the highest degree
of care that a reasonable man would use.”[485]
“That is substantially the same as the rule in the English cases,” I
said, “and has, I believe, been followed in most of the States, and in
the United States Supreme Court.”[486]
“I presume,” said the machinist; “companies are liable for defects in
their cars whether they manufacture them or purchase them?”
“Oh yes,” I rejoined, “the companies are alike bound to see that in
the construction no care or skill has been omitted for the purpose
of making their engines and cars as safe as care and skill can make
them.”[487]
“I remember,” spake the man of science, “hearing of one case where the
engine ran off the track, and it was found that a fore-axle was broken,
but no evidence was given as to whether the accident caused, or was
caused by, the breakage; yet a traveller who had his shoulder contused,
and his hat crushed, and was rendered insensible for a time and sick
for a longer period by the accident, recovered a large sum against the
company.[488] And in another English case[489] an accident happened
from the breaking of the tire of a driving-wheel; the defect could
not have been discovered by the original testing, but _might have_
been if it had been repeated when the tire was returned after being
considerably worn. The company was held liable. And so where the defect
might have been discovered when the car was mended, and it was sent on
without being thoroughly examined and repaired.”[490]
“Yes,” said one who had not yet spoken, “I was on a jury in a case
against the Great Western of Canada. The axle of the tender had broken,
and the tender and a car went off the track, and a man who was in the
car had his arm broken. At the trial the company proved by the engineer
in charge of the train, that he had examined the axle shortly before
the accident and that all appeared in good order. The judge charged
in favor of the defendants, but we found a verdict for the plaintiff,
which the court refused afterwards to interfere with, as we were the
proper judges as to whether or not there had been negligence on the
part of the company.”[491]
“I think that it was in that case that Chief Justice Macaulay
remarked, that the accident having happened unaccountably, and without
any proximate or active cause to account for it, constituting as the
cases say some evidence of negligence, it rested with the company to
explain and reconcile it with perfect innocence on their part. It has
been held, too, in England, that the plaintiff is not bound to show
specifically in what the negligence of the company consisted; but that
if some inevitable fatality caused the accident, it is for the company
to prove it.[492] In New York, too, the same view is taken.”[493]
“Wal, stranger, what is yer law about this yer in the old country? Not
that I care three shakes of a dead possum’s tail about the old country,
and all yer lawyers and judges with their horse-tail wigs, but still I
calkerlate I kind o’ like to know what they do say on this here point;
as it appears to me that the great Amerikin eagle has got rather mixed
up.” And to add emphasis to his query, our friend of the land of wooden
nutmegs fired from between his teeth a perfect _feu de joie_ of extract
of nicotine.
Thus appealed to, I cleared my throat, pulled up my shirt-collar,
crossed my legs, assumed as authoritative an expression of countenance
as Dame Nature ever permits me to do, and thus began:--
“So long ago as the days of Sir James Mansfield it was held[494]
that there is a decided difference between a contract to carry goods
and one to carry passengers. In the former case the carrier is liable
for his freight in any event, but he does not warrant the safety
of his passengers. His undertaking as to them extends no further
than this, that as far as human care and foresight can go he will
provide for their safe conveyance. So, if the breaking of a coach is
purely accidental the injured traveller will have no remedy for the
misfortune he has encountered. The contract made by a general carrier
of passengers is to take due care to carry his living freight safely;
and it does not amount to a warranty that the carriage or car shall be
in all respects perfect for its purpose, _i. e._, free from all defects
likely to cause a catastrophe, although those defects were such that no
skill, care, or foresight could have detected their existence.[495] The
obligation to use all due and proper care is founded on reasons obvious
to any one with a semi-optic; but to impose on the carrier the burden
of a warranty that everything he necessarily uses is absolutely without
spot or blemish and free from defects likely to cause peril--when from
the nature of things defects must exist which no skill can detect,
and the effects of which no care or foresight can avert--would be to
compel a man by implication of law and not by his own will to promise
the performance of an impossible thing, and would be directly opposed
to the maxims of law, ‘Lex non cogit ad impossibilia,’ ‘Nemo tenetur
ad impossibilia.’ [Here the audience coughed.] ‘Due care,’ however,
undoubtedly means (having reference to the nature of the contract
to carry) a high degree of care, and casts on carriers the duty of
exercising all vigilance to see that whatever is required for the safe
conveyance of their passengers is in fit and proper order. But the
duty to take due and proper care, however widely construed, however
vigorously enforced, will not, as that man Readhead sought to do,
subject a railway company to the plain injustice of being compelled by
law to make reparation for a disaster arising from a latent defect in
the machinery which they are obliged to use, which no human skill or
care could have prevented or detected, or eye descried unless of ‘the
patent double million magnifyin’ gas microscopes of hextra power kind’
to which Mr. Weller, Jr., refers. In that case, the accident was caused
by the breaking of the tire of one of the wheels of the carriage, owing
to a latent defect in it, which was not attributable to any fault on
the part of the manufacturers, nor was it discoverable previously to
the breakage. The rule laid down in that case (Readhead’s) seems to
be that although the carrier of passengers may be responsible for
deficiencies caused by want of skill or care in the manufacture of
the carriages used, he is not to be so held when the defect could
not have been avoided in the making, or detected on examination. It
is so extremely improbable that such a case should happen, that the
practical difference between this and the New York rule of absolute
responsibility[496] is not of much importance, although the theoretical
difference is. But the rule in New York does not seem to be fully
approved of even on this side of the Atlantic.[497] The truth seems to
be that carriers of persons must be held to the utmost degree of care,
vigilance, and precaution, but not to such a degree of vigilance as
would be wholly inconsistent with the mode of conveyance adopted and
render it impracticable. Nor is the utmost degree of care which the
human mind is capable of imagining required. Such a rule would require
such an expenditure of money and employment of hands so as to render
everything safe, as would prevent all persons of ordinary prudence from
engaging in that kind of business. But the rule does necessitate that
the highest degree of practicable care and diligence that is consistent
with the mode of transportation adopted, should be used.”[498]
I stopped; one universal sigh of relief uprose from those of my
listeners who were not nodding approvingly from the borders of
Dreamland. The Yankee said:--
“Wal, stranger, that was a yarn. I guess I’ll go and have a smoke, and
see if I can calkerlate what in blazes you did mean by all that long
pow-wow.” And he departed.
“I think,” said the juror, “that the law ought to be the most stringent
possible in order to put a stop to such barbarous and inhuman sacrifice
of multitudes, such horrible mangling of bodies and limbs, such
frightful cases of burning alive and scalding to death that have
occurred so frequently of late.”
“Yes, I hope that the day is not very far distant when all our courts
will hold, that all who undertake the transportation of passengers by
the dangerous element of steam, and with the great speed of railway
trains, are responsible for the use of every precaution which any known
skill or experience has yet been able to devise, and that passengers
need not judge for themselves how many of these precautions it is safe
to forego.”[499]
“But,” urged another, “people now-a-days wish cheap and rapid
travelling in all directions and everywhere.”
“Suppose they do; we do not allow monomaniacs or brigands to commit
suicide or murder without interference, because it is their pleasure
or their interest to do so; and I see no good reason why railway
passengers or railway managers should be allowed to roast a hecatomb in
human sacrifice, because it seems desirable or convenient to the one or
the other class concerned in the immolation, or because the one class
demands and the other consents, to use a mode of transportation which
inevitably produces these results.”[500]
“Ah,” said a lady, “I fear these dreadful accidents will continue until
every train is compelled to carry a director of the company, or a
general manager, upon the cow-catcher; experience will then soon induce
them to be a little more careful of the bodies and lives of others.”
“But, sir!” said the scientific gentleman, a precise man of figures,
“I fear you exaggerate when you speak of hecatombs of sacrifices. I
believe that in proportion to the numbers carried the accidents to
passengers in the good old days of stage-coaches were, as compared
with these days of railway dispensation, about as sixty to one.
Reliable statistics in France prove this. Figures, which you know
are proverbial for their truth, show that absolutely more travellers
were yearly killed and injured, without fault of theirs, fifty years
ago on stage-coaches, than are now killed on the cars. According to
the Report of the Board of Trade of Great Britain and Ireland, out of
all the 480,000,000 of journeys taken by passengers by rail in the
British Isles in 1874, only 212 people were killed, and 1,990 injured
not fatally; so that you can easily see only one solitary traveller was
killed to every 2,274,881 who followed in the triumphant train of the
iron horse, and only one injured to every 242,301 passengers.”
“You speak only of passengers,” said a listener. “I presume far more
employees were killed during that time.”
“Certainly. Only 212 passengers were killed that year while as many
as 788 employees were; and of the injured ones 1,990 paid for the
privilege, while 2,815 were paid for running the risk: and of these
mangled ones many had only themselves to blame. Sir John Hawkshaw, an
authority on these matters, recently asserted that railway accidents
were fewer now than ever: that in fact, on an average, a man might
travel 100,000 miles each year for forty years, and the chances would
be slightly in favor of his not receiving the smallest scratch, unless
he ran into danger of his own accord.”
“You might almost as well at once assert that it is less dangerous to
travel by rail than to stay at home,” I remarked.
“That very statement was officially made in France some years ago,
and supported by the proof, that while ten people were killed on the
rail, fourteen died at home from falling over carpets, and having their
garments catch fire.”
“All that may be true enough of England, or Europe; but I should think
that it was widely different in America,” I replied.
“Of course it must be admitted that, taken as a whole, the dangers
incident to railway travelling are materially greater in America than
in any country of Europe. Still the destruction of life and limb is
nothing frightful,--the wonder rather is that so few are hurt. Perhaps
you will not believe it, yet the truth of the fact remains, that in the
year 1874, throughout the whole of Massachusetts, but one passenger was
killed on the cars through an accident to which his own carelessness
did not contribute; while in the same year of grace, in the city of
Boston alone, fifteen people were killed from falling down stairs,
twelve by falling out of windows, and seventeen were run over by
carriages and fatally injured.”
“But perhaps, that was an exceptional year!”
“Let us take four years then, from September, 1870, to the same month
of 1874: in that time the railroads disposed of 635 persons, all
told, passengers, employees, trespassers--in Massachusetts; and in
Boston during the same years there were 1,050 accidental deaths! The
returns for the last fifteen years show, that in Massachusetts only 39
passengers were killed, while 250 were injured, but not fatally, from
causes over which they had no control: that is less than one killed to
each 8,900,000 travellers, and about one in each 1,400,000 injured.
The statistics for that State would appear to indicate that if one
chanced to be born on a train and remained there travelling 500 miles
a day, he would, with average good fortune, be about two hundred and
twenty years old before being involved in any accident resulting in
death, or personal injury.”
“That is quite long enough, since Methusaleh is no more.”[501]
FOOTNOTES:
[476] Aston _v._ Heaven, 2 Esp. 533; Frink v. Potter, 17 Ill. 406.
[477] Collett _v._ London & N. W. Rw., 16 Ad. & Ell. (N. S.), 984.
[478] Denman, C. J., in Carpue _v._ London & B. Rw., 5 Q. B. 747; Laing
_v._ Colder, 8 Penn. St. 479-483.
[479] Dawson _v._ Manchester S. & L. Rw., 5 L. T. (N. S.), 682; but see
Hammack _v._ White, 11 C. B. (N. S.), 587.
[480] Hegeman _v._ West. Rw. Corp., 16 Barb. 353.
[481] Ford _v._ London & S. W. R., 2 F. & F. 730, per Erle, C. J.
[482] Baltimore & Ohio Rw. _v._ State, 29 Md. 252.
[483] Alden _v._ N. Y. Central Rw., 26 N. Y. 102.
[484] McPadden _v._ N. Y. C. Rw., 44 N. Y. 478; 47 Barb. 247.
[485] 13 Conn. 326.
[486] Redfield on Railways, vol. ii., 222 n.
[487] Hegeman _v._ Western Rw., 16 Barb. 353, affirmed by Court of
Appeals, 13 N. Y. 9.
[488] Dawson _v._ Manchester L. & L. Rw., 5 L. T. (N. S.), 682; see
also, Skinner _v._ London B. & S. C. Rw., 5 Ex. 787; Carpue _v._ Same,
5 Ad. & E. (N. S.), 747; Bird _v._ Gt. Northern Rw. 28 L. J., Ex. 3.
[489] Manser _v._ Eastern Counties Rw., 3 L. T. (N. S.), 585, Exch.
[490] Richardson _v._ G. E. R., L. R., 10 C. P. 486; reversed on
appeal, W. N. May 20, 1876.
[491] Thatcher _v._ Gt. W. R., 4 U. C. C. P. 543.
[492] Skinner _v._ London B. & S. C., 5 Ad. & E. (N. S.), 747.
[493] McPadden _v._ N. Y. C., 44 N. Y. 478.
[494] Christie _v._ Griggs, 2 Camp. 79.
[495] Readhead _v._ Midland Rw., L. R., 4 Q. B. 379, Ex. Ch.; also; L.
R., 2 Q. B. 412, and the cases therein cited.
[496] Alden _v._ New York Central Rw., 26 N. Y. 102.
[497] McPadden _v._ N. C., 44 N. Y. 478; Meier _v._ Penn. Rw., 64 Penn.
St. 225, and Ingalls _v._ Bills, 9 Met. 1, where the court said, “If
the injury arise from some invisible defect which no ordinary test will
disclose, the carrier is not liable.”
[498] Tuller _v._ Talbot, 23 Ill. 357.
[499] Redfield on Railways, vol. ii., p. 237.
[500] Redfield on Railways, vol. ii., p. 238.
[501] See “Our Railroad Death-rate,” in Atlantic Monthly for February,
1876, by C. F. Adams, Jr.