§ 2786. Carrier Bound to Make what Tests. It is the established law that the carrier will be liable in damages to a passenger for an injury sustained through the breaking down or failure of the carrier's means of transportation which could have been discovered by making. use of all the tests known to the highest degree of mechanical skill in the particular department.278 It is not material that any or all skillful manufacturers had, up to the time of the accident in question, omitted certain known tests, the use of which would have prevented the accident;279 which is equivalent to saying that ordinary care—that is, the care employed by a good and careful man engaged in a like business will not discharge the carrier. On the contrary, he must adopt all the precautions which have been practically tested, and which are known to be of value, and must employ all the skill that is possessed by men whose services it is practicable for him to secure.280

sistent with the operation of the road: Illinois &c. R. Co. v. O'Connell, 160 Ill. 636; s. c. 43 N. E. Rep. 704; aff'g s. c. 59 Ill. App. 463. The platform was the Miller patent, one of the appliances of which was an extra coupling pin, fastened with a chain to the platform by an eye in the head of the pin. When not in use this pin was dropped into a hole in the beam which forms the outer end of the platform, the hole for the pin being about seven inches from the end of the beam and opposite the steps. In this instance the pin extended above the surface of the beam more than three inches. The plaintiff, a woman, caught her dress upon it and was thrown down as she was alighting.

278 Smith v. New York &c. R. Co., 19 N. Y. 127; Hegeman v. Western R. Corp., 13 N. Y. 9; s. c. Thomp. Carr. Pass. 160.

279 Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282.

280 Smith v. New York &c. R. Co., 19 N. Y. 127. On these grounds, it has been held proper to instruct the jury, in a case where a passenger was injured by the explosion of the locomotive of a railway carrier, that it was incumbent upon the defendant, as a passenger carrier, to see to it, by every test recognized as necessary by experts, that the boiler was in a safe condition; but that it was not liable for a defect which could not be discovered by such tests. This instruction did not go even as

far as the limits of the rule above stated. It did not tell the jury that the defendant was required to adopt every test known to experts to ascertain the safety of the boiler. It told them that the defendant was not exculpated if the defect could have been discovered by an application of all the tests recognized by experts

as necessary. "It surely would not express the true extent of the carrier's liability to say that the carrier is exonerated if the defect could not be discovered by the application of some of the tests which experts recognize as necessary. If there was any test recognized as necessary, which was not applied, the carrier failed to comply with its obligation. Of course, it was not the suggestion of the instruction that it is the duty of the carrier to adopt all such speculative and theoretical precautions as might be thought necessary by experts, and the instructions are not impugned upon this ground. The precautions referred to were those recognized as necessary by men of practical experience in the testing of steam boilers:" Robinson v. New York &c. R. Co., 20 Blatchf. (U. S.) 338; s. c. 9 Fed. Rep. 877, opinion by Wallace, J. In an action by a passenger to recover of a carrier for damages occasioned by the falling of a seat, an instruction allowing a recovery if defendant was negligent in leaving open the seat for occupancy, and the injury was the proximate result

A disposition to relax in favor of railroad companies the stringent rule of care which the common law imposes upon common carriers of passengers, is discovered in a holding to the effect that, although a railroad company is bound to inspect its trains, it is not bound to keep up a continuous inspection, or to know at each moment the condition of every part of a train.281

$2787. Obligation to Adopt the Latest Improvements.-It is obvious that so high a degree of care as that which the law exacts of the carrier of passengers is not discharged unless the carrier adopts, so far as is practicable, the latest improvements in his means of transportation which have been found by experience well adapted to increase the safety of his passengers. If this is true generally, it is especially true when he undertakes to carry passengers by the dangerous agency of steam. There is, however, a limit to this obligation. "Railroads must keep pace with science and art and modern improvements, in their application to the carriage of passengers, but are not responsible for the unknown as well as the new."282 It is obviously impossible to state any rule as to where the limit of this duty lies; and for this reason it must, in general, be a question of fact for the jury.283 It seems to be a sound conclusion, in the absence of special circumstances tending to exonerate a railway company carrying passengers, that such a company is required to select such plans and materials for construction as are used and have been found sufficient by the best and most skillfully conducted railroads of the country.284

the same action an instruction to the effect that the failure to exercise a high degree of care to provide safe seats, or to warn passengers of any defective seats, was negligence which would render the carrier liable for such damages as directly resulted therefrom, was held not erroneous where the complaint charged, without exception, that the accident was caused by gross negligence and the evidence disclosed that the seat had fallen previously on the same day: International &c. R. Co. v. Anthony (Tex. Civ. App.), 57 S. W. Rep. 897.

281 Proud v. Philadelphia &c. R. Co., 64 N. J. L. 702; s. c. 46 Atl. Rep. 710 (citing to this point Palmer v. Pennsylvania Co., 111 N. Y. 488; s. c. 18 N. E. Rep. 859; 2 L. R. A. 252). While it is no doubt true that it is not bound to know at each moment the condition of every part of its train, because that is impracticable, it is true that it is bound to maintain a continuous inspection; and any judicial holding which relaxes or diminishes this obligation is to that extent an invitation to negligence and to manslaughter.

282 Agnew, J., in Meier v. Pennsylvania R. Co., 64 Pa. St. 225, 230.

283 It was so held in Hegeman v. Western R. Corp., 13 N. Y. 9; s. c. Thomp. Carr. Pass. 160.

284 Pershing v. Chicago &c. R. Co., 71 Iowa 561; s. c. 32 N. W. Rep. 488.

$2788. Qualification of this Doctrine. It is conceded that it is not an absolute rule that every railway company carrying passengers is bound to furnish the most approved appliances, to promote the safety of its passengers, which are in use by any other company. Some companies can not afford to do this. Small, out-of-the-way roads of small earnings would incur bankruptcy by attempting to keep their road and rolling stock in the same condition as the trunk lines are able to do. Such a rule is to be applied with reasonable regard to the ability of the company, and to the nature and cost of the improvements in question; but, within its proper limits, it is said to be a rule of great importance, and one which should be strictly enforced.285 Another court has reasoned that a carrier is not bound to adopt a new and improved method because safer or better than the methods already employed by him, if it is not requisite to the reasonable safety or convenience of his passengers, and if the expense is excessive; the cost of such improved method may be a sufficient reason for refusing to adopt it.286 This doctrine, it is perceived, brings the standard of his duty and liability to that of reasonable care; but the exercise of the very high degree of care demanded by the American decisions generally, is not deemed unreasonable. In like manner, other courts take the view that railway carriers of passengers are not required, as an absolute rule of law, to adopt every new invention which may better promote the safety of their passengers; but that it is sufficient if they adopt such machinery and appliances as are in ordinary use by well-regulated railroad companies287 similarly situated.288

§ 2789. No Liability for Accidents Caused by Latent Undiscoverable Defects. If a carrier, in the construction of a machine, in the

Where the action proceeded merely on the ground of carelessness in running the train, and the fact was that the train was derailed by running against an animal on the track, -it was held inadmissible to prove that the company failed to use air brakes on the train, and error to give an instruction that the plaintiff might recover if the defendant was negligent in failing to use air brakes. The reason was that this evidence and this instruction were not predicated upon the kind of negligence alleged in the declaration: Toledo &c. R. Co. v. Foss, 88 Ill. 551.

285 Smith v. New York &c. R. Co., 19 N. Y. 127; Kentucky &c. R. Co. v. Thomas, 79 Ky. 160, 172.

280 Le Barron v. East Boston Ferry Co., 11 Allen (Mass.) 312. Compare also the observations of Bellows, J., in Taylor v. Grand Trunk R. Co., 48 N. H. 316.

287 Louisville &c. R. Co. v. Jones, 83 Ala. 376; s. c. 3 South. Rep. 902.

288 Wallace v. Wilmington &c. R. Co., 8 Houst. (Del.) 529; s. c. 18 Atl. Rep. 818. Applying this rule to the case where a railway accident happened in consequence of running over some cattle which were upon the track, and where the court admitted evidence, against the defendant's objections, to show that the Westinghouse air brake was more efficient in arresting the

purchase of it where it is constructed by another, in the inspection of it at the time of its purchase and from time to time during its use

by him, and finally in the use of it, exercises that exhaustive care which is reasonably incumbent upon him, considering the nature of his business and the risks which it involves to his passengers, and, notwithstanding such care, his vehicle breaks down and his passengers are injured or killed, he will not be liable to pay damages to them or their personal representatives.280 So, a carrier will not be liable to pay damages if such injuries happen through latent defects in his roadway, bridges, or other permanent structures, where he has bestowed the highest measure of care upon the construction, the inspection, and the reparation of them.290 A good illustration of the principle is discovered in cases where railway accidents have proceeded from concealed defects in rails which could not be discovered by an inspection;291 or from the breaking of the axle of a car caused by a flaw inside the hub, which the most careful inspection would not have revealed.292 It is scarcely necessary to say, before leaving this question, that the question is not, as in the case of a defect in a highway which a municipal corporation is bound to keep in repair, whether the carrier had actual notice of it for a sufficient time before the accident, to give him an opportunity to correct it or to repair it; but whether, by the exercise of that high degree of care. which the law imposes upon him, he might have discovered it and remedied it.293

§ 2790. Obligation Extends to Adopting a Suitable Kind of Appliance. It is too obvious for comment that where the accident has

struction the judgment must be reversed and the cause remanded:" Yerkes v. Keokuk &c. Packet Co., 7 Mo. App. 265.

250 Stokes v. Eastern Counties R. Co., 2 Fost. & Fin. 691. To the same effect are Peoria &c. R. Co. v. Thompson, 56 Ill. 138; Houston &c. R. Co. v. Greer, 22 Tex. Civ. App. 5; s. c. 53 S. W. Rep. 58; Western R. Co. v. Walker, 113 Ala. 269; s. c. 22 South. Rep. 182; Carter v. Kansas City Cable R. Co., 42 Fed. Rep. 37; Anthony v. Louisville &c. R. Co., 27 Fed. Rep. 724; Texas &c. R. Co. v. Buckalew (Tex. Civ. App.), 34 S. W. Rep. 165 (no off. rep.); West Chicago St. R. Co. v. Stephens, 66 Ill. App. 303; s. c. 1 Chic. L. J. Wkly. 389. On the same principle, a livery stable keeper who lets carriages for hire is answerable to the hirer for injuries which may happen by reason of defects in the carriage which might have been dis

covered by the most careful and thorough examination, but not for an injury which happens in consequence of a hidden defect, which could not upon such examination have been discovered: Hadley v. Cross, 34 Vt. 586.

290 Hanley v. Harlem &c. R. Co., Edm. Sel. Cas. (N. Y.) 359.

291 Anthony v. Louisville &c. R. Co., 27 Fed. Rep. 724.

202 Texas &c. R. Co. v. Buckalew (Tex. Civ. App.), 34 S. W. Rep. 165 (no off. rep.). It is possibly worth while to consider, in view of a recent and a very important discovery, whether these hidden defects could not be detected by the use of the X-ray; and, if so, whether the carrier is not bound to resort to that mode of inspection.