that negligence must be shown by the plaintiff, and that the defendants were bound to know only that which could be known by the exercise of ordinary care and diligence. In a later case,120 this doctrine was not followed in so far as it related to the burden of proof. But in another case,121 Pollock, C. B., said that whether the mere happening of the accident was prima facie evidence of negligence depended on the nature of the accident. For instance, if the accident arose from the collision of two trains on the same line, then he admitted that it might be so. But where the accident consisted of the train running off the track, he held that the rule was different. Here it was for the plaintiff to prove negligence. The defendants' undertaking was not to carry safely, but to carry with reasonable care.1 122 § 2746. American Expressions of this Rule of Ordinary Care.The courts have, for the most part, abandoned the habit of dividing care, and its antithesis, negligence, into degrees. 123 The expression "extraordinary care," in the view of some courts, means no more than that the carrier must use reasonable care; and that this reasonable care is a relative term, having reference to the duties which the carrier has undertaken and to the risks incident to the business. It means nothing more than this: that the carrier, being intrusted with the most important interests, namely, with human lives, must use a degree of care commensurate with those interests, and have at the same time due regard for the practical exigencies of the business.124 In a case in the Supreme Court of Michigan, involving the liability of railway carriers of passengers, Campbell, J., delivering the opinion of the court, says: "If they exercise their functions in the same way with prudent railway companies generally, and furnish their road and run it in the customary manner which is generally found and believed to be safe and prudent, they do all that is incumbent upon them." The court cite in support of this view several Michigan cases,125 and also recent cases in the English courts, holding the same doctrine ;126 and the New York cases on the same subject 120 Great Western R. Co. v. Braid, 1 Moo. P. C. C. (N. S.) 101 (s. c. 444). King, 16 How. (U. S.) 469; s. c. Thomp. Carr. Pass. 31; Vol. I, § 18. 124 Sawyer v. Hannibal &c. R. Co., 121 Bird v. Great Western R. Co., 37 Mo. 240, 260; Le Barron v. East 28 L. J. (Exch.) 3. 122 See, however, Skinner v. London &c. R. Co., L. R. 5 Exch. 786, where Pollock, C. B., followed the rule of Lord Denman, C. J., in Carpue v. London &c. R. Co., 5 Ad. & El. (N. S.) 751, and held that a collision of railway trains was prima facie evidence of negligence. 125 See Steamer New World V. Boston Ferry Co., 11 Allen (Mass.) 312. 125 Michigan R. Co. v. Coleman, 28 Mich. 440; Grand Rapids &c. R. Co. v. Judson, 34 Mich. 506; Fort Wayne &c. R. Co. v. Gildersleeve, 33 Mich. 133; Michigan &c. R. Co. v. Dolan, 32 Mich. 510. 126 Richardson v. Great Eastern R. Co.,.L. R. 1 C. P. Div. 342; Daniel v. are referred to with disapproval. "They," continues the learned judge, "entirely ignore the true ground of responsibility as depending on the actual negligence of the carrier. There is no such thing as implied negligence, when there is none in fact."127 The Court of Appeals of New York appear to have yielded to the tendency of some of the courts to measure the liability of the carrier of passengers by the standard of reasonable or ordinary care; for we find it laid down in a modern decision of that court that, in order to render them liable, it is essential to show that they have neglected the performance of some duty which, in the exercise of reasonable care, prudence, and diligence, they owe to such passengers.128 Expressions are found in judicial opinions which give color to the conclusion that the court has adopted the "reasonable care" doctrine with reference to carriers of passengers, but which, on examination, proves to be not so. Extraordinary care includes ordinary care; and hence, where a court states the doctrine affirmatively against the carrier, by saying that the exposure of a passenger to a danger which the exercise of reasonable foresight would have anticipated, and which due care would have avoided, is negligence on the part of the carrier,—the court does not deny that the carrier is liable for the greater degree of care, but merely holds him liable for failure to exercise the lesser degree. 129 § 2747. Comments on the "Reasonable Care" Doctrine.-But we must ignore the teachings of nearly all the cases unless we conclude that a court is warranted, in all actions of this kind, in telling the jury that the carrier is bound to exercise for the safety of his passengers a higher degree of care than that which springs out of ordinary social obligations; that he is bound to exercise the highest degree of care to which human skill and foresight can attain, con Metropolitan R. Co., L. R. 5 H. L, 127 Grand Rapids &c. R. Co. v. Huntley, 38 Mich. 537, 546, 548. 128 Palmer v. Pennsylvania Co., 111 N. Y. 488; s. c. 18 N. E. Rep. 859; 2 L. R. A. 252; 19 N. Y. St. Rep. 493. And it has been held in a subordinate court in that State that the degree of care required of a carrier to prevent injury to a passenger while in transit, or getting on or off its cars or other vehicles, from the careless or wrongful acts of others, is not the utmost care which a very cautious person would exer cise, but reasonable care not only on the part of its servants, but also to the end of preventing injury from the careless or wrongful act of any other person whom it permits to come on its premises, which could have been foreseen: Buck v. Manhattan R. Co., 32 N. Y. St. Rep. 51; s. c. 10 N. Y. Supp. 107; S. c. aff'd 134 N. Y. 589. See, also, Buck v. Webb, 58 Hun (N. Y.) 185; s. c. 33 N. Y. St. Rep. 824,-where the standard of reasonable care is adopted. 129 Reem v. St. Paul City R. Co., 77 Minn. 503; s. c. 80 N. W. Rep. 638. sistent with the carrying on of the business and with the known methods and the present state of the particular art.130 It is not a denial, but a just application, of this principle, that the degree of care required in a carrier of passengers by stagecoaches, in the preparation and management of the means of conveyance, is not a test of that which is required of those engaged in transporting persons at a high rate of speed by means of steam power upon a railway.131 Nor is it a denial of this principle to hold that in respect of its obligation to provide transportation for all who may apply therefor, when an unusual, extraordinary demand for transportation of passengers occurs, the carrier should be held only to such diligence as is reasonable under the circumstances.132 $2748. Doctrine that the Rule of Extraordinary Care Applies only to the Carrier's Means of Transit.133-The rule imposing upon the carrier of passengers the highest degree of care has this limitation: it applies only to those means and measures of safety which the passenger of necessity must trust wholly to the carrier. It is, in gen 130 Ante, § 2724; Oliver v. New York &c. R. Co., 1 Edm. Sel. Cas. (N. Y.) 589; Kansas Pacific R. Co. v. Miller, 2 Colo. 442; Sullivan v. Philadelphia &c. R. Co., 30 Pa. St. 234; Wilkie v. Bolster, 3 E. D. Smith (N. Y.) 327; Houston &c. R. Co. v. Gorbett, 49 Texas 573; Caldwell v. Murphy, 1 Duer (N. Y.) 233, 241; s. c. aff'd 11 N. Y. 416. This doctrine was thus expressed by Erle, C. J., in charging a jury: "Negligence is not to be defined, because it involves some inquiry as to the degree of care required, and that is the degree which the jury think is reasonably to be required from the parties, considering all the circumstances. The railway company is bound to take reasonable care; to use the best precautions in known practical use for securing the safety and convenience of their passengers. If they have done so, they have done their duty and are not guilty of negligence; if they have failed in their duty, and their negligence has caused the injury, then they are liable in the action. You are to consider what is reasonable care, and whether they have used the proper precautions. They are intrusted with most important interests, - with human lives, and a jury may reasonably require an amount of care proportioned to those interests. At the same time, a jury would not be entitled to expect the utmost care that could possibly be conceived, or the highest possible degree of skill. It is to be borne in mind that railways themselves are of recent introduction, and that their management is a matter of experience and of practical knowledge which increases day by day. It is not to be expected that the directors shall at once have in use every invention or discovery of science. It is sufficient if they use every precaution in known practical use, for the safety and convenience of the passengers. Both objects must be looked to. It is easy to conceive a precaution-for example, a slower rate of speedwhich would add a very small degree of security, while it would entail a very great degree of inconvenience. And a company ought not to be found guilty merely because they possibly might have done something more for safety, at a far greater sacrifice of convenience:" Ford v. London &c. R. Co., 2 Fost. & Fin. 730, 732. 131 Hegeman v. Western R. Corp., 13 N. Y. 9; s. c. Thomp. Carr. Pass. 160; affirming s. c. 16 Barb. (N. Y.) 353. 132 Chicago &c. R. Co. v. Fisher, 31 Ill. App. 36. 133 This section is cited in § 3481. eral, applicable only to the period during which the carrier is in a certain sense the bailee of the person of the passenger. We have seen that where the passenger is injured by reason of certain defects in the buildings or grounds of the carrier, before the transit has commenced or after it has ended, the carrier is or is not liable, accordingly as he has or has not been guilty of a want of ordinary care. In this respect he occupies toward the passenger the precise relation of any other owner of real property toward his customers who come upon his premises by his invitation, express or implied, to do business with him. So, as to those buildings, platforms, grounds, etc., supplied by the carrier for the use of the passenger, where the latter is not merely passive,-as, the means of entrance to or of exit from his vehicle, if the passenger is injured on account of any visible defects, under such circumstances that his own want of care may be supposed to mingle to some extent as an ingredient in the accident. the carrier will not, it seems, be held liable for not having, in the construction or repair of the particular instrumentality, exercised extraordinary care. Thus, a passenger, in making his exit from a steamboat, slips upon the smooth and slippery surface of a plate of brass with which the steps are covered, falls, and is injured. The particular stairs are finished in the same manner as the best river boats and American sea-going steamers. The carrier is not liable for this injury, and it is error to refuse a nonsuit.134 The flap of a ferryboat is not made after the latest and most approved pattern, and does not present an even surface for teams to drive over in making their exit from the boat. A man with his horses and sled attempts to drive off the boat. His sled strikes the edge of the flap. and is brought up with a sudden jerk, which precipitates his load forward upon him and injures him. The ferry company is not liable merely because it did not adopt the latest improvement in the means of exit of vehicles from its boat.135 The Court of Appeals of New York appear to have settled upon the doctrine that the rule which imposes upon the carrier of passengers the duty of extraordinary care for the safety of his passengers, applies only to his means of transit, and not to his use of those means or to the conduct of his servants. There is, however, some doubt, difficulty and confusion in the state of the decisions in that court, as will be seen from an examination of the cases collected in the marginal note.136 134 Crocheron v. North Shore Staten Island Ferry Co., 56 N. Y. 656; rev'g s. c. 1 Thomp. & C. (N. Y.) 446. 135 Le Barron v. East Boston Ferry Co., 11 Allen (Mass.) 312. 136 In one of these cases a passen ger on a street car, drawn by horses, brought an action for damages for injuries which were predicated upon the negligent manner in which the driver had switched the car. It was held that the company would be § 2749. Circumstances under which the Carrier is Bound only to Ordinary Care as toward the Passenger.-As already seen, the rule of extraordinary or extreme care does not apply in cases where the passenger is lawfully on the premises of the carrier, eundo vel redeundo, before the transit has commenced, or after it is ended,as, for example, where he is in the waiting-room or on the platform of the carrier,-though here, according to some judicial opinion, the carrier continues to stand under the high measure of care which the liable only in case the driver failed to exercise the care and skill of an ordinarily careful and prudent man, and that the rule that a carrier of passengers is bound to exercise all the care and skill which human prudence and foresight can suggest, was not applicable to such a case: Stierle v. Union R. Co., 156 N. Y. 70; s. c. aff'd on reargument in 156 N. Y. 684; aff'g s. c. 13 Misc. (N. Y.) 134. Subsequently, one of the Appellate Divisions of the Supreme Court of that State held, on the authority of the case just cited, that the obligation of a carrier of passengers to exercise the highest degree of care which human prudence and foresight can suggest, exists only with respect to those results which are naturally to be apprehended from unsafe roadbeds, defective machinery, imperfect cars, and other conditions endangering the success of the undertaking of the carrier. In the particular case, a woman was injured by the sudden starting of a car of the defendant which she had boarded, but before she had taken her seat. It was held that the question for the jury was whether ordinary care had been exercised: Hurley v. New York &c. Brew. Co., 13 App. Div. (N. Y.) 167; s. c. 43 N. Y. Supp. 259; 77 N. Y. St. Rep. 359. This last decision was by the Appellate Division for the Second Judicial Department, sitting in Brooklyn. About the same time, the Appellate Division for the First Department, sitting in Manhattan (New York City), decided that a railroad company is required to exercise, through its servants, a very high degree of care and skill, to the end that no injury result to its passengers; and that this rule has not been changed by the decision in the Stierle case (above cited), as is shown by the decision of the Court of Appeals, upon the reargument of that case. (Referring to Stierle v. Union R. Co., 156 N. Y. 684). In the last-named case (Hurley v. New York &c. Brew. Co.), which was an action by a passenger for damages for injuries caused by a collision between the car on which he was riding, and a wagon on the street, it was held that whether a street railway company is called upon to exercise "great care and vigilance, all that human foresight might suggest," depends upon the conditions existing at the time, which was really the rule laid down in the Stierle case. The same views are expressed in Zimmer v. Third Avenue R. Co., 36 App. Div. (N. Y.) 269, which was an action to recover damages from a street railway company for injuries occasioned by a collision at the intersection of two lines of street railway. In all of these cases, the negligence of the servants of the defendant was held to present, upon the evidence, a question of fact for the jury. It is to be regretted that a court of this rank, in dealing with a question where the law has been overwhelmingly settled in all American courts, should have undertaken a distinction in favor of railroad companies, by holding that the rule which demands extraordinary care of the carrier to secure the safety of his passenger, extends only to his means of transit, and not to the conduct of his servants. He selects both: the passenger has nothing to do with either. The passenger is just as helpless in securing himself against the consequences of danger from a drunken, incompetent or negligent engineer or conductor, as from the consequences of danger from a rotten bridge, or a worn-out locomotive or car. Any distinction between degrees of negligence, grounded upon the fact of the injury proceeding from one or the other of these sources, is unjuridical and |