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one carrier is injured by a collision with the vehicle of another carrier, he may, in the opinion of several courts, maintain an action jointly against both carriers.254 In those jurisdictions where the doctrine of imputed negligence obtains, the negligence of the carrier in whose vehicle the passenger was, might preclude him from recovering damages against the other carrier. It follows that, where this doctrine obtains, a joint action will not lie; for such an action is necessarily predicated upon the negligence of both carriers. The rule here is plain enough, when it is considered that such an action may be an action ex delicto. This being so, all the rules which attend such actions would seem to be in force here; and one of these rules is that, where several persons unite in the doing of a wrongful act, or set on foot or put in motion an agency by which an injury is done, they become jointly liable to the person injured. "Whether the act was done by the procurement of one person or of many, and, if by many, whether they acted with a common purpose and design, in which they all shared, or from separate and distinct motives, and without any knowledge of the intentions of each other, the nature of the injury is not in any degree changed, or the damages increased which the party injured has a right to recover."255 The person injured may sue all of the tort-feasors jointly, or he may sue some of them jointly, or a single one of them separately.256 He may proceed against all, or against any one or more of them whom he can catch. It is therefore not a good plea in abatement to such an action that the defendant was one of a partnership firm, and that his copartners were not joined as defendants.257 This ruling applies where the suit is against a carrier for the loss of goods, as well as where it is for an injury to a passenger;2 258 and where an action was against the master and the unknown owners of a steamship, for the value of a lost trunk, and the master alone answered, and it did not appear that a citation had been issued for the owners, the plaintiff

254 Colegrove v. New York &c. R. Co., 6 Duer (N. Y.) 382; s. c. 20 N. Y. 492; Cooper v. Eastern Trans. Co., 75 N. Y. 116; Cuddy v. Horn, 46 Mich. 596; McDonald v. Louisville &c. R. Co., 47 La. An. 1440; s. c. 17 South. Rep. 873 (liable in solido); Holzab v. New Orleans &c. R. Co., 38 La. An. 185; Central Passenger R. Co. v. Kuhn, 86 Ky. 578; s. c. 6 S. W. Rep. 441; Matthews v. Delaware &c. R. Co., 56 N. J. L. 34; s. c. 22 L. R. A. 261; Downey v. Philadelphia &c. R. Co., 161 Pa. St. 588; s. c. 29 Atl. Rep. 126; 58 Am. & Eng. Rail. Cas. 594; aff'g s. c. 3 Pa. Dist. R. 31.

255 Stone v. Dickinson, 5 Allen (Mass.) 31.

256 Chicago City R. Co. v. Lace, 62 Ill. App. 535; Douglas v. Sioux City St. R. Co., 91 Iowa 94; s. c. 58 N. W. Rep. 1070; Tompkins v. Clay St. R. Co., 66 Cal. 163; Pittsburgh &c. R. Co. v. Spencer, 98 Ind. 186.

257 Ansell v. Waterhouse, 2 Chit. 1; s. c. 6 Maule & Selw. 385; Stockton v. Frey, 4 Gill (Md.) 406; McCall v. Forsythe, 4 Watts & S. (Pa.) 179. 258 Bank of Orange v. Brown, 3 Wend. (N. Y.) 158.

259 For

was allowed to enter a non pros. as to the parties not served.250 the same reason, if several are jointly sued, a verdict in favor of a part of them is good.260

§ 2782. Remoteness of Damages in Such Cases.-As already seen, the sick, the infirm, the aged, and the decrepit are entitled, within reasonable limits, to be conveyed as passengers by public carriers, and the carrier must exercise a degree of care in the protection of such passengers proportionate to their feebleness and helplessness.261 A correlative proposition is that where a passenger is already ill, or is already decrepit or hurt, and he receives an injury through the negligence of the carrier which aggravates his illness or his hurt, the carrier must pay the damages accruing by reason of such aggravation. Thus, it has been held that if a passenger, who is afflicted with. consumption, is injured through the fault of the carrier while alighting from his vehicle, so that a hemorrhage results, he may recover damages, although the servants of the carrier may not have had reason to apprehend such a result.262 So the fact that a passenger who is killed through the negligence of the carrier is at the time afflicted with a disease of which he must ultimately die, does not relieve the carrier from liability to pay damages, provided the death of the passenger was hastened by the negligent act of the carrier, so that such act is to be regarded as the proximate cause of his death.263 As already shown,264 if the injury visited by the carrier upon its passenger excites or develops a predisposition to a particular disease, or if it aggravates a pre-existing disease, the carrier must pay damages to the extent of the injuries.265 Upon the question what damages are to be deemed proximate and what remote, in cases where passengers are carried beyond their destination, and set down at places where they suffer from exposure or from other subsequent causes, there is necessarily more difficulty. But it has been held. that where the trainmen advised a female passenger that a certain station was her destination when it was not, and she left the train there in consequence of their advice, and, before she could find accommodations, took a severe cold from unavoidable exposure,-the company was liable to her, and her sufferings were a proper element

259 Forbes v. Davis, 18 Tex. 268. 200 Bretherton v. Wood, 6 J. B. Moore 141; s. c. 3 Brod. & B. 54; 9 Price 408; Gunn v. Dickson, 10 Upper Canada Q. B. 461; Frink v. Potter, 17 Ill. 406, 411.

261 Ante. §§ 2735, 2736; Montgomery &c. R. Co. v. Mallette, 92 Ala. 209; s. c. 9 South. Rep. 363.

202 Louisville &c. R. Co. v. Wood, 113 Ind. 544; s. c. 12 West. Rep. 313; 14 N. E. Rep. 572.

203 Louisville &c. R. Co. v. Jones, 83 Ala. 376; s. c. 3 South. Rep. 902. 204 Vol. I, § 150, et seq.

205 Louisville. &c. R. Co. v. Jones, 108 Ind. 551; s. c. 7 West. Rep. 33.

of damage. If, through the negligence of a carrier, a passenger is exposed to such apparent peril as produces nervous convulsions and illness, this may be taken into consideration as an element of damage. 267

§ 2783. Damages in Such Cases Held Too Remote.-A passenger, injured in a railway collision, became in consequence thereof disordered in mind and body, in consequence of which, some eight months thereafter, he committed suicide. His personal representatives brought an action against the company to recover for his death in consequence of the injury. It was held that his act, and not the negligence of the company, was the proximate cause of the injury, and that he could not recover.268 A conductor permitted one calling himself an officer and claiming to have a man, who was with him, under arrest, to carry the man on board a train against his will. The man was so badly wounded that he died on the trip. It was held, in an action against the railroad company by the widow of the deceased, that the company was not liable.269 Where the plaintiff was told to change cars, and got into one which was not ready, and was told to get out of that, and was injured by a passenger train soon after alighting,—it was held that his expulsion from the car was not the proximate cause of the injury.27

200 Pennsylvania Co. v. Hoagland, 78 Ind. 203.

207 Purcell v. St. Paul City R. Co., 48 Minn. 134; s. c. 45 Alb. L. J. 212; 11 Rail. & Corp. L. J. 114; 50 N. W. Rep. 1034. In a case in the Superior Court of New York City, it appeared that the plaintiff, a passenger on board a ship, was lying in her berth, when the tier of berths above her suddenly gave way and tilted down towards her, causing great noise and confusion. Immediately after, and before she had recovered her self-possession, the steward of the ship pulled her from her berth and tried to set her upon her feet. Before she was free from his control and firmly on her feet, the ship made a lurch, which sent her along the floor against the door on the other side and back over the floor, thereby causing her a severe injury. The negligence pleaded was the defective construction of the berths. The court held that the defective construction of the berths

was the proximate cause of the injury; that the falling of the berths above her was presumptive evidence of negligence on the part of the owners of the ship; that, from the time of their falling to the time of the injury to the plaintiff, there was a continuous and connected series of occurrences, induced or caused by the falling; that the plaintiff had not been placed in a position where she must bear the risk of the motion of the vessel, having been deprived of the bodily power to protect herself by the act of the defendant's agent; and that the defendant was hence liable for the injuries so suffered by her: Smith v. British &c. Packet Co., 46 N. Y. Supr. 86; s. c. aff'd 86 N. Y. 408.

208 Scheffer v. Railroad Co., 105 U. S. 249.

200 Jackson v. St. Louis &c. R. Co., 87 Mo. 422; s. c. 56 Am. St. Rep. 460.

270 Henry v. St. Louis &c. R. Co., 76 Mo. 288; s. c. 43 Am. Rep. 762.

ARTICLE IV. NEGLIGENCE IN FAILING TO PROVIDE A SAFE VEHICLE AND ROADWAY.

SECTION

2785. Degree of care imposed upon carrier in this particular.

2786. Carrier bound to make what tests.

2787. Obligation to adopt the latest

improvements.

2788. Qualification of this doctrine. 2789. No liability for accidents

caused by latent undiscoverable defects.

2790. Obligation extends to adopting a suitable kind of appliance. 2791. Carrier not necessarily liable because a better mode of construction might have been adopted.

2792. Not enough that the appliance was such as was ordinarily in use, unless it was reasonably safe.

2793. Care demanded in inspecting a railroad passenger train. 2794. Necessity of inspection a question of fact for a jury. 2795. This question how submitted to a jury.

2796. Duty of railway carrier in respect of the safety of its roadway.

2797. Further of this duty. 2798. Application of these principles to washouts caused by extraordinary storms. 2799. Further of sudden floods and washouts.

2800. Further of this subject.

[blocks in formation]

2801. Application of these principles 2815. Questions of procedure and

to cases where rails, axletrees, etc., are broken by frost.

evidence connected with the subject of this article.

2816. Other applications of these principles.

§ 2785. Degree of Care Imposed upon Carrier in this Particular. The high degree of care imposed by the law upon carriers of passengers272 applies in a primary sense to the duty of furnishing

271 This section is cited in §§ 3477, 3684.

272 Ante. § 2722, et seq.; Stokes v. Saltonstall, 13 Pet. (U. S.) 181; s. c.

safe vehicles, roadways, and other means of transportation. It will be the object of this article to illustrate the doctrines of the law in this relation. This degree of care must be exercised by the carrier of passengers for hire, in furnishing suitable vehicles and appliances and skillful servants to operate them.273 A railway carrier must, for example, provide suitable cars, machinery, means, and appliances, and see that they are properly kept in repair.274 Closely connected with the rule which demands this high degree of care, is another rule, treated in a preceding article, that an injury to a passenger proceeding from a defect in the vehicle and mechanical means of transportation of the carrier, is prima facie evidence of negligence.275 The mere fact that the defective condition of the apparatus of the carrier, from which the injury to the passenger proceeded, was not obvious or apparent, may not be sufficient effectually to dispel the presumption of negligence which springs from the happening of an accident proceeding from such a source; but if there were means available to the carrier, by careful examination or practical tests, to discover the cause of the infirmity, and he failed to resort to those means, he will be liable.276 Stating the rule with reference to railway carriers, and in somewhat different language, it is that if any certain and satisfactory test of machinery used by railway companies in transportation, is known, which is within the reach of the railway carrier of passengers, it must be applied; and it is consequently negligence to rely upon a test which is clearly insufficient.277

Thomp. Carr. Pass. 183; Pennsylvania R. Co. v. Roy, 102 U. S. 451; Trumbull v. Erickson, 97 Fed. 891.

273 Caveny v. Neely, 43 S. C. 70; s. c. 20 S. E. Rep. 806.

27 Central &c. R. Co. v. Bateman, 26 U. S. App. 584. Such being the nature of the carrier's duty in this respect, an instruction was given which told the jury that the defendant railway company was under the duty of exercising a high degree of care in the carriage of its passengers; that this degree of care was proportionate to the nature and risk of the business, and was such as would ordinarily be exercised by persons of great care and prudence under like circumstances.-and was followed by another instruction to the effect that the defendant was required to use ordinary care to provide railings around the platforms of the cars which were reasonably safe for the purpose for which they were used. It is perceived that

these instructions were contradictory as to the degree of care required of the carrier; and it was consequently held that the giving of them afforded grounds for reversing the judgment: Parvin v. International &c. R. Co. (Tex. Civ. App.), 54 S. W. Rep. 638.

275 Ante, § 2754, et seq.

276 Miller v. Ocean Steamship Co., 118 N. Y. 199; s. c. 28 N. Y. St. Rep. 874; 23 N. E. Rep. 462.

277 Texas &c. R. Co. v. Hamilton, 66 Tex. 92. For example, a railroad company is under the duty to its passengers of furnishing a suitable and safe car platform and steps upon which to leave the car, so far as it can reasonably do so by the exercise of the highest degree of care and diligence, and is responsible for any defect therein causing injury to the passenger, which hu man care, vigilance, and foresight, reasonably exercised, could have discovered and guarded against, con

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