happened from the breaking of some appliance of the carrier, it will be no defense for him to show that the particular appliance which broke was a sound one, of a good kind, and that it was like the other appliances which he had adopted. He is bound to exercise the same degree of care in adopting suitable instrumentalities, as in seeing that each particular one is free from defects.294 Thus, it is no defense to such an action, for a stagecoach proprietor to show that the harness which broke was a sound harness of the style which he used on his line. 295 So, in case of a disaster produced by the falling of a railroad bridge, it will not be sufficient to rebut the presumption of negligence arising from the fact of such an accident, to show that the carrier used the means and appliances ordinarily employed in repairing similar bridges, without showing that such means and appliances were ordinarily sufficient for the purpose intended, and were without known defects, and were used with the greatest practicable care and diligence.296 So, negligence may well be imputed to a railroad company for using, in an important passenger service, an inferior locomotive in charge of a fireman instead of a skillful engineer, who runs it at a dangerous speed in approaching a station.207 So, negligence may well be predicated upon the failure of a railroad company to maintain barriers between the cars at the edge of the platform of a passenger car, to prevent passengers from falling through the space between the cars.298 § 2791. Carrier not Necessarily Liable because a Better Mode of Construction might have been Adopted.-But if the appliances are amply sufficient for all the ordinary purposes of travel, the carrier 204 Louisville &c. R. Co. v. Pedigo, 108 Ind. 481; s. c. 5 West. Rep. 876; Peyton v. Texas &c. R. Co., 41 La. An. 861; s. c. 41 Am. & Eng. Rail. Cas. 550; 6 South. Rep. 690; Newton v. Central &c. R. Co., 80 Hun (N. Y.) 491; s. c. 62 N. Y. St. Rep. 387; 30 N. Y. Supp. 488; s. c. aff'd 150 N. Y. 621. 25 Farish v. Reigle, 11 Gratt. (Va.) 697, 716. Louisville &c. R. Co. v. Pedigo, 108 Ind. 481; s. c. 5 West. Rep. 876. 207 Peyton v. Texas &c. R. Co., 41 La. An. 861; s. c. 41 Am. & Eng. Rail. Cas. 550; 6 South. Rep. 690. 298 Newton v. Central &c. R. Co., 80 Hun (N. Y.) 491; s. c. 62 N. Y. St. Rep. 387; 30 N. Y. Supp. 488; s. c. aff'd 150 N. Y. 621. But the wisdom and justice of the Supreme Court of Pennsylvania have decided that the Pennsylvania Railroad Company is not imputable with negligence, in case of an accident to a postal clerk on its train, which met with a disaster by reason of running into a siding by reason of a switch being negligently left open, although the switch had no signal, and there was evidence tending to show that the absence of the signal caused the accident,-the switch being a standard lever switch in general use along the line of the railroad: Foreman v. Pennsylvania R. Co. (Pa.), 46 Atl. Rep. 109 (no off. rep.). The court cite and follow Pennsylvania R. Co. v. Price, 96 Pa. St. 296, to the point that a U. S. postal agent is not a "passenger" within the meaning of a statute of that State. will not be responsible for every possible accident occurring, although their construction might have been improved so as to have averted the mishap. Thus, the forward deck of a steamboat was surrounded by bulwarks three or four feet high, with gangways upon each side, closed by rails hinged to the bulwarks and of the same height, and coming down upon stanchions in the center of the gangway, leaving the space beneath open. This deck was not designed for passengers, but they were permitted to come upon it with the knowledge of the defendant's employés. The plaintiff's intestate, a passenger on the boat, came out thereon. His hat blew off, and in springing to recover it, he slipped under the gangway rail, fell overboard, and was drowned. It appeared that all the boats upon the lake were constructed in the same manner; that they had been so run for many years, and there was no proof tending to show that any one had ever before gone overboard in this way, or that such danger had been apprehended. It was held that the evidence failed to show negligence on the part of the defendant, and the plaintiff was properly nonsuited.299 The rule here under consideration is applied within practicable limits. For example, it does not require a common carrier of passengers to adopt the very latest improvements, or to make changes in its means of transportation to correspond with changes made by other like carriers. There is, for instance, no presumption of negligence from the fact that a railroad company fails to rebuild and widen its bridge, because other railroad companies are adopting a greater width.300 § 2792. Not Enough that the Appliance was Such as was Ordinarily in Use, unless it was Reasonably Safe.-In many cases of injuries. to passengers through dangerous or defective appliances, the carrier ***Dougan v. Champlain Transp. Co., 56 N. Y. 1. So, it has been reasoned that a railroad company will not be chargeable with negligence in case of an injury to a passenger, because of its failure to adopt means which, according to discoveries made after the accident, might have prevented the injury, provided the conditions were not unusual, but were the same that had existed for a long time, and the appliances which were used had previously been found safe and sufficient,-as where a railroad company continues the use of an ordinary snow plow, instead of a rotary machine, to clear its track of snow, where the ordinary plow had always proved safe and sufficient before: Denver &c. VOL. 3 THOMP. NEG.-17 R. Co. v. Andrews, 11 Colo. App. 204; s. c. 53 Pac. Rep. 518. 300 Weaver v. Baltimore &c. R. Co., 3 App. (D. C.) 436; s. c. 22 Wash. L. Rep. 393. For a corresponding doctrine with respect to appliances for preventing the escape of fire from locomotives, see Vol. II, § 2253. An instruction telling the jury that the defendant railway company had performed its whole duty as a common carrier of passengers, when it had furnished for their carriage a car or caboose which would run with safety while upon its road, but would be unable to resist the crash when thrown from its track,-was properly refused: Pittsburgh &c. R. Co. v. Williams, 74 Ind. 462. 257 attempts to defend himself from the imputation of negligence on the ground that the appliance was such as was in ordinary use among other carriers upon similar vehicles. This is not a good defense, for the reason that, in this particular, the measure of duty of the carrier is not ordinary care, but is extraordinary care. It will therefore be no defense on his part that he is doing what others are doing, that is to say, that others are equally negligent.301 § 2793. Care Demanded in Inspecting a Railroad Passenger Train. It is plain that the care demanded of a railroad company in the inspection of its passenger trains is not, under all circumstances, satisfied by sending an expert machinist under the cars to supply oil, to tap the wheels, and to see that nothing is broken or defective. Such an inspection must extend so far as to ascertain whether or not the train is, in every other respect, safe for the carriage of passengers thereon. If, for example, a freight car is introduced into the train, loaded with timber, such an inspection does not discharge the care demanded of the railway company, unless it ascertain that the timber is so loaded that it will not fall off and endanger the safety of the train.302 301 For example, it has been held that a railroad company does not perform its duty to its passengers by providing such platform steps to enable them to alight as are "ordinarily provided for similar cars on similar roads," unless such steps are reasonably safe: Dougherty v. Kansas City &c. R. Co., 128 Mo. 33; s. c. 30 S. W. Rep. 317. So, a railroad company has been held liable for injuries to a passenger, caused by her dress catching upon the head of a coupling pin projecting three inches above the level of the platform, where there was no necessity of carrying it in that place and allowing it to project above the platform, although it was sometimes necessary, in order to make the platform of practical use in coupling other cars to it, and it was customarily 30 carried upon railroads, and no like accident had ever before happened: 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. So, evidence of negligence has been discovered in leaving iron flanges upon the platform of a railway car in such a manner that passengers are liable to be tripped thereon, without having any one present to give notice of the danger when the car is about to be detached from the train: Chicago &c. R. Co. v. Gates, 61 Ill. App. 211; S. c. aff'd 162 III. 98. The manifest negligence of a railway company in leaving in its dining car a chair unfastened to the floor, which fell over backward, throwing the passenger down, owing to a sudden lurch while the train was rounding a curve, was glossed over in Nelson v. Lehigh Valley R. Co., 25 App. Div. (N. Y.) 535; s. c. 50 N. Y. Supp. 63, on the ground that such chairs were usually unfastened on other railroads; that the train was not running at an unusual rate of speed, and that defendant's roadbed was in proper condition. 302 Keating v. Detroit &c. R. Co., 104 Mich. 418; s. c. 62 N. W. Rep. 575. In the particular case, certain logs were improperly loaded upon a car which had been introduced into the train in front of the passenger car in which the plaintiff was riding. One of the logs rolled off, breaking a switch timber, as the § 2794. Necessity of Inspection a Question of Fact for a Jury.— Whether, how often, or in what manner, a railway carrier of passengers should make an inspection of his means of transportation for the purpose of discovering defects therein, is obviously a question upon which no rule of law can be stated, except, perhaps, the rule already suggested, that it is obliged to conform in this regard to the greatest diligence of a very cautious person. Whether the system and manner of executing its duty of examining its machinery and appliances are such as to satisfy this standard of diligence can not be measured in each case by any rule of law to be applied by the judge. The question is, therefore, obviously a question for a jury in all cases.303 There is a holding to the effect that where a passenger on board a moving train reports to the conductor that he has heard an unusual noise and felt a jolt, but the conductor fails to stop the train for the purpose of making an inspection, but makes no other inspection than such as can be made upon such a train while in motion, and soon afterwards a derailment is caused by the breaking of a wheel, the company is not liable for damages to a passenger thus injured, but it is damnum absque injuria.304 2795. This Question How Submitted to a Jury.-The manner in which the question is properly submitted to a jury is perhaps well illustrated by a case determined in the English Court of Common Pleas, where, as elsewhere seen,305 the measure of duty of a carrier of passengers is reasonable or ordinary care. It appeared that in the course of a journey from P. (a junction on the defendants' line) to London, a truck which had been received from another road, laden with coal, broke down in consequence of the fracture of an axle, and caused a collision of the freight train with a passenger train in which the plaintiff was riding as a passenger, whereby the plaintiff was injured. The truck which broke down belonged to another company, whose duty it was to keep it in repair. The course of business at the junction was that every truck, before coming on to the defendants" line, underwent some kind of an examination as to its fitness for travel. This particular truck, when submitted to such examination, train was passing over the switch, causing a derailment of the car upon which the plaintiff was riding and injuring him. It was held that there was evidence of negligence. 23 Palmer v. Delaware &c. Co., 46 Hun (N. Y.) 486; s. c. 11 N. Y. St. Rep. 872; s. c. aff'd 120 N. Y. 170; 24 N. E. Rep. 302; 30 N. Y. St. Rep. 817; Richardson v. Great Eastern R. Co., L. R. 10 C. P. 486. 304 Frelsen v. Southern &c. R. Co., 42 La. An. 673; s. c. 7 'South. Rep. 800. This decision is utterly opposed to all law and judicial precedent. The question of negligence should have been submitted to the jury. 303 Ante, § 2744, et seq. was found to have a defective spring, and a serious crack in one of its main timbers, and it was accordingly taken upon a siding and detained there four or five days for the purpose of having a new spring put on. This was done by the company owning the truck. The truck (which had not been unloaded) was then sent on, with a direction chalked on it by a servant of the company owning it that it should "stop at Peterborough for repairs when empty." Upon a minute examination of the truck after the accident, it was found that the fore-axle, which was three and a half inches thick, had across it, near the wheel, an old crack an inch and a quarter deep, which was admitted to have been the sole cause of the breakdown. There was conflicting evidence as to whether or not, regard being had to the extent of the traffic at the junction, it was possible to have discovered this defect in the axle by any practicable examination at the junction, and the following questions were submitted to the jury: 1. Would the defect in the axle which was the cause of the accident have been discovered or discoverable upon any fit and careful examination of it to which it might have been subjected? 2. Was it the duty of the defendants to examine this axle by scraping off the dirt and looking minutely at it, so minutely as to enable them to see the crack and so to prevent or remedy the mischief? 3. If that was not their duty upon the first view of the truck, did it become their duty so to do when, upon having discovered the defects [i. e., the spring, and the crack in the main timber], they ordered it to be repaired, and it remained four or five days on their premises for the purpose? The jury answered the first question in the affirmative and the second in the negative; and to the third question they answered, "It was their duty to require from the wagon company [the company owning the truck] some distinct assurance that it had been thoroughly examined and repaired." The learned judge thought the last answer immaterial, and directed a verdict for the defendants, reserving leave to the plaintiff to move to enter a verdict for him for an agreed sum if, upon the facts and findings of the jury, the court should be of opinion that the defendants were guilty of negligence. Upon these findings the plaintiff was held to be entitled to a verdiet; for, although it might not have been the duty of the defendants themselves to cause the truck to be properly examined and repaired upon its arrival at the junction, nevertheless it was somebody's duty to do it, and the defendants were guilty of culpable negligence in not satisfying themselves that a proper examination had taken place before they allowed the truck to proceed. 306 306 Richardson v. Great Eastern R. Co., L. R. 10 C. P. 486. |