.61

by persons of great prudence under similar circumstances;50 or the highest degree of care, diligence, and skill known to careful, diligent, and skillful persons engaged in such business; or that high degree of care which would be exercised by very cautious, prudent and competent persons under similar circumstances;6 or that they are responsible for the utmost care and diligence of very cautious persons, as well as for the slightest neglect, and are answerable for defects in the vehicles furnished by them, which might have been discovered by the most careful examination.62 This is not understood as subjecting the carrier to liability for failing to use the extreme degree of care indicated in the language of the cases cited in a previous section.63 For instance, it has been reasoned that a carrier is not bound to "use all possible care" to provide for the safe conveyance of passengers, but only the utmost care and diligence of very cautious persons, or the utmost care and circumspection that can be exercised under all the circumstances, short of a warranty of the safety of the passengers.64

§ 2730. Strict Diligence and High Degree of Care, etc.Other decisions may be ranged under the lower, but still exacting theory that the common carrier of passengers is required to use "strict diligence;"65 or a high degree of care, skill and vigilance, to

106 Mo. 482; s. c. 17 S. W. Rep. 494; Edwards v. Lord, 49 Me. 279; Chattanooga &c. R. Co. v. Higgins, 89 Ga. 494; s. c. 15 S. E. Rep. 848; 52 Am. & Eng. Rail. Cas. 473; Maverick v. Eighth Ave. R. Co., 36 N. Y. 378; Smith v. British &c. Packet Co., 14 Jones & Sp. (N. Y.) 86; s. c. aff'd 86 N. Y. 408; Taylor v. Grand Trunk R. Co., 48 N. H. 304, 308; Texas &c. R. Co. v. Brown (Tex. Civ. App.), 58 S. W. Rep. 44 (the care that very prudent persons would have used under the circumstances,-correct in instructing a jury).

50 Texas &c. R. Co. v. Davidson, 3 Tex. Civ. App. 542; s. c. 21 S. W. Rep. 68; Fordyce v. Withers, 1 Tex. Civ. App. 540; s. c. 20 S. W. Rep. 766.

60 Montgomery &c. R. Co. v. Mallette, 92 Ala. 209; s. c. 9 South. Rep. 363; Chicago City R. Co. v. Engel, 35 III. App. 490 (highest degree of practicable care and diligence under the circumstances).

61 Levy v. Campbell (Tex.), 19 S. W. Rep. 438.

62 Treadwell v. Whittier, 80 Cal. 574; s. c. 5 L. R. A. 498; 22 Pac. Rep. 266; 13 Am. St. Rep. 175.

63

Ante, § 2728. 64 International &c. R. Co. V. Welch, 86 Tex. 203; s. c. 25 S. W. Rep. 390. Where the rule is recognized, it is not error to instruct a jury that a railway company in the carriage of passengers is bound to use "the utmost care and diligence of a very cautious person." This declaration of law the court found to be not only in accordance with the elementary books, but sustained by the adjudged cases. "It is true," said the court, "that the terms used do not furnish an exact measure of the care required, but that difficulty is inherent in the nature of the subject. It has, however, this advantage, that it conforms substantially to the ordinary definition of the highest degree of care required of bailees of goods, and has, therefore, the sanction of long use:" Taylor v. Grand Trunk R. Co., 48 N. H. 304, 318.

Alabama &c. R. Co. v. Hill, 93 Ala. 514; s. c. 47 Am. & Eng. R. Cas. 500; 9 South. Rep. 722.

guard against injuries to his passengers, and see that his roadway and appliances remain in good condition and free from defects.66 Receding from the extremely strenuous rule expressed in cases collected in preceding paragraphs," it has been laid down that a common carrier of passengers is bound to use a high degree of care to protect them from danger that should be anticipated in the exercise of a reasonable foresight.68

9969

§ 2731. Statutory Expressions of this Degree of Care.-The rule of the common law, already stated, has been enacted by statute in Georgia in the following words: "A carrier of passengers is bound also to extraordinary diligence on behalf of himself and his agents, to protect the lives and persons of his passengers. But he is not liable for injuries to the person after having used such diligence.' Under this statute in an action by a passenger against a carrier for damages for an injury, it has been held error for the court to instruct the jury that the plaintiff can not recover if the defendant exercise but ordinary reasonable care and diligence. Such instruction was held wrong, in that it required only ordinary care, while the statute, as above quoted, demands extraordinary diligence on the part of railroad companies when employed as common carriers. And accordingly, slight neglect on the part of their agents and servants, resulting in an injury to a passenger, will be sufficient to render them liable.70 A statute of Nebraska expresses this duty in the following language: "Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice." Under this statute it is held that carriers of passengers are insurers of the safety of their passengers, and are liable for all injury sustained by such passengers unless caused by the gross negligence of the person injured or his violation of some rule of the carrier brought to his notice,

6 Palmer v. Delaware &c. Canal Co., 120 N. Y. 170; s. c. 30 N. Y. St. Rep. 817; 24 N. E. Rep. 302. Much to the same effect, see Oviatt v. Dakota &c. R. Co., 43 Minn. 300; s. c. 45 N. W. Rep. 436; Furnish v. Missouri &c. R. Co., 102 Mo. 438; s. c. 13 S. W. Rep. 1044; Merwin v. Manhattan R. Co., 48 Hun (N. Y.) 608; s. c. 16 N. Y. St. Rep. 20; s. c. aff'd 113 N. Y. 659.

67 Ante, §§ 2726, 2727.

es Hansen v. North Jersey St. R. Co., 64 N. J. L. 686; s. c. 46 Atl. Rep. 718; rev'g s. c. 43 Atl. Rep. 663.

89 Georgia Code 1873, § 2067. 70 Crawford v. Georgia R. Co., 62 Ga. 566.

71 Comp. St. Neb., ch. 72, art. I,

§ 3.

the "criminal negligence of the persons injured," referred to in the statute, being tantamount to gross negligence, or a reckless disregard of one's own safety.72

.74

§ 2732. Liability for Slight Negligence.-Slight negligence is the antithesis of great care; and, accordingly, the courts seem to be agreed that slight negligence on the part of a carrier of passengers is actionable when it is the proximate cause of the injury which the passenger has sustained;73 and some courts say that common carriers are liable for the slightest negligence; and consequently, where the death of a passenger on a railway train is caused by the slightest neglect against which human prudence and foresight could have guarded, the company will be liable in damages.75 It is therefore erroneous, as against the plaintiff, in an action against a railway carrier of passengers for an injury to a passenger, to instruct the jury that it was the duty of the defendant to exercise ordinary care in providing good and strong vehicles, and that for a failure to exercise ordinary care, the defendant would be liable.76

§ 2733. Liable for the Slightest Negligence.-The antithesis of the doctrine announced in a former paragraph," that the carrier is bound to use the utmost skill, diligence, care and foresight, to promote the safety of his passenger, is found in the rule that he is liable in damages for the slightest neglect against which such skill, diligence, care and foresight might have guarded.78 The proposi

72 Chicago &c. R. Co. v. Landauer, 39 Neb. 803; s. c. 58 N. W. Rep. 434.

78 St. Louis &c. R. Co. v. Mitchell, 57 Ark. 418; s. c. 21 S. W. Rep. 883; Morrissey v. Wiggins Ferry Co., 43 Mo. 380; Leslie v. Wabash &c. R. Co., 88 Mo. 50; s. c. 3 West. Rep. 824; Crawford v. Georgia R. Co., 62 Ga. 566; Florida &c. R. Co. v. Lucas, 110 Ga. 121; s. c. 35 S. E. Rep. 283.

74 Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890; s. c. 55 N. W. Rep. 270; 20 L. R. A. 216.

75 Baltimore &c. R. Co. v. Noell, 32 Gratt. (Va.) 394, 399; Baltimore &c. R. Co. v. Whightman, 29 Gratt. (Va.) 431. See, also, Farish V. Reigle, 11 Gratt. (Va.) 697.

Bonce v. Dubuque Street R. Co., 53 Iowa 278. A proprietor of hacks in a city is a common carrier of passengers, and his liability is determined by this rule: Bonce v. Dubuque Street R. Co., supra. "Ante, § 2728.

78 Reynolds v. Richmond &c. R. Co., 92 Va. 400; s. c. 23 S. E. Rep. 770. The utmost care which can be exercised under all the circumstances short of a warranty of the safety of the passengers, which continues until the passenger has alighted from the train: Ft. Worth &c. R. Co. v. Kennedy, 12 Tex. Civ. App. 654; s. c. 35 S. W. Rep. 335; New Jersey R. Co. v. Kennard, 21 Pa. St. 203, 204. 209. The utmost care and skill which prudent men are accustomed to use under like circumstances: Brown v. Louisville R. Co. (Ky.), 53 S. W. Rep. 1041 (no off. rep.). The greatest degree of care consistent with the mode of transportation, but not the utmost degree of care of which the mind can conceive, this not being misleading in an instruction: Chicago &c. R. Co. v. Grimm, 25 Ind. App. 494; s. c. 57 N. E. Rep. 640. Railway train conductor bound to use the greatest care and caution in

tion was thus stated by Judge Redfield, with reference to railway carriers of passengers: "Passenger carriers by railway are bound to the utmost diligence which human skill and foresight can effect, and if injury occurs by reason of the slightest omission in regard to the highest perfection of all the appliances of transportation, or the mode of management at the time the damage occurs, the carrier is responsible."79

§ 2734. Theory that this Duty Renders Carrier Liable, although the Proximate Cause is the Negligence of a Third Person.One court has evolved the theory that the duty of the carrier to exercise the highest degree of care for the safety of his passenger is founded on contract, and that where the contract is broken, and the passenger suffers injury from the breach of it, the carrier can not escape liability, on the ground that the proximate cause of the injury was the negligence of another. The case was that the defendant, a railway company, left its passenger coach standing across the track of another company, where it was struck by some cars of the other company, detached from a freight train, killing the plaintiff's intestate; and, of course, the defendant was held liable."

80

§ 2735. To Whom this Measure of Care is Due-the Feeble, Sick, Aged, Decrepit, Intoxicated.1-This measure of care is due to emigrants on a steamship, as well as to other passengers.82 It is due to the feeble, the sick, the aged, and the decrepit, as well as to passengers who are able to take care of themselves without assistance. Such persons have the right to be carried as passengers, at least un

providing for the safety of the passengers under his direction and control: Bellman v. New York &c. R. Co., 42 Hun (N. Y.) 135; s. c. aff'd 122 N. Y. 670 (mem.).

792 Redf. on Rys. 219. This language was quoted and approved by the Supreme Court of Arkansas, in George v. St. Louis &c. R. Co., 34 Ark. 613, 625.

Kellow v. Central &c. R. Co., 68 Iowa 470. The conclusion is obviously sound, but the reasoning may be questioned. If the action had been by the company owning the passenger coach against the company owning the freight car, for the destruction of the plaintiff's coach, then the rule would have applied that the negligence of the plaintiff in leaving its coach standing across the defendant's track in a position

of exposure was remote as compared with the negligence of the defendant in thrusting its freight car into it, which was proximate: Vol. I, § 230, et seq. But as between the passenger and his carrier, the death of the passenger was the direct and proximate result of the great negligence of the carrier in exposing him to such a risk. Outside of this the case seems to be one for the application of the principle that where the negligence of two persons concurs in injuring a third person, either or both are liable. Vol. I, § 75; post, § 3380.

81 This section is cited in §§ 2782, 2934, 3497.

82 Garoni v. Compagnie De Navigation, 39 N. Y. St. Rep. 63; s. c. aff'd 131 N. Y. 614.

85

less they are utterly helpless; and it is the duty of the carrier to exercise a degree of care for their safety in proportion to their feebleness and helplessness.83 Thus, if a passenger, through a sudden illness, becomes less able to care for his own safety, and makes that fact known to the proper agent of the carrier, he will be entitledto a greater degree of care and attention than is demanded from the carrier under ordinary circumstances.84 It is not true that the carrier owes to every passenger precisely the same measure of care, without regard to age, sex, or bodily infirmity. When the carrier finds that a passenger on his vehicle is sick or insane, and consequently helpless, it is his duty to exercise the reasonable and necessary offices of humanity toward the passenger, until some suitable provision can be made for his safety. But this means no more than that a passenger thus becoming sick, is entitled to such care from the carrier as is fairly practicable for him to give with the facilities at hand, without thereby unduly delaying the train or unreasonably interfering with the safety and comfort of other passengers.$7 Nor does it mean that the carrier is required to maintain hospitals and nurses for sick and insane persons. It means that the carrier is bound to do what he can in the exercise of the reasonable and necessary offices of humanity toward the sick passenger, until some special provision can be made. 88

86

83 East Line &c. R. Co. v. Rushing, 69 Tex. 306; s. c. 6 S. W. Rep. 834; Shenandoah Valley R. Co. v. Moose, 83 Va. 827; s. c. 3 S. E. Rep. 796; Wells v. New York &c. R. Co., 25 App. Div. (N. Y.) 365; s. c. 49 N. Y. Supp. 510; Madden v. Port Royal &c. R. Co., 41 S. C. 440; s. c. 19 S. E. Rep. 951. As to the measure of care due to passengers who are sick, feeble or disabled-see Indianapolis &c. R. Co. v. Pitzer, 109 Ind. 179; East Line &c. R. Co. v. Rushing, 69 Tex. 306; Shenandoah Valley R. Co. v. Moose, 83 Va. 827; Lake Shore &c. R. Co. v. Salzman, 52 Ohio St. 558; s. c. 31 L. R. A. 261; Atchison &c. R. Co. v. Weber, 33 Kan. 543; Louisville &c. R. Co. v. Fleming, 14 Lea (Tenn.) 128; Columbus &c. R. Co. v. Powell, 40 Ind. 37.

84 McCann v. Newark &c. R. Co., 58 N. J. L. 642: s. c. 33 L. R. A. 127; 4 Am. & Eng. Rail. Cas. (N. S.) 382; 34 Atl. Rep. 1052.

85 St. Louis &c. R. Co. v. Finley, 79 Tex. 85.

8 Indianapolis &c. R. Co. v. Pitzer, 109 Ind. 179; Lake Shore &c. R. Co.

v. Salzman, 52 Ohio St. 558; Atchison &c. R. Co. v. Weber, 33 Kan. 542.

87 Lake Shore &c. R. Co. v. Salzman, 52 Ohio St. 558; s. c. 31 L. R. A. 261; 33 Ohio L. J. 301; 2 Ohio Leg. News 565; 2 Det. L. N. 324; 40 N. E. Rep. 891; aff'g s. c. 9 Ohio C. C. 230; 1 Ohio Dec. 68.

SS Indiana &c. R. Co. v. Pitzer, 109 Ind. 179; s. c. 4 West. Rep. 256 (citing to this point, Atchison &c. R. Co. v. Weber, 33 Kan. 543; s. c. 52 Am. Rep. 543). So, the servants of a railway carrier will be held to be able to distinguish from others a woman in an advanced state of pregnancy, and to know what would be safe or unsafe for her to do: Baltimore &c. R. Co. v. Leapley, 65 Md. 571; s. c. 4 Cent. Rep. 353. So, if a railroad conductor carries upon the train a female passenger who is unable to walk, and she is accompanied by a servant who is unable to carry her from the train, and the conductor endeavors to carry her from the train and injures her in doing. the railroad company will be liable: International &c. R. Co. v. Gilmer, 18 Tex. Civ. App. 680;