2796. Duty of a Railway Carrier in Respect of the Safety of its Roadway.-On principle, it is beyond all question that any rule of skill, care and diligence which the law puts upon a carrier of passengers in respect of the safety of its vehicles, will apply equally to him in respect of the safety of his roadways, where those roadways belong to him or are under his control. It has been well laid down that a railroad company, being the owner of its road as well as of its carriages, is bound to the same degree of diligence and skill as to the condition and construction of its road, as it is with reference to the condition and construction of its carriages.307 The high and exact degree of care imposed by the law upon carriers of passengers, as already stated,308 extends to railway carriers of passengers, and is to be exercised by them in providing safe roadbeds, and in seeing that the crossties are sound, and that the rails are securely laid.309 In case of an injury to a passenger caused by a defect in its roadway,310 whether in its construction or in its reparation,311 such as a broken rail or a defective cross-tie,312 the presumption of negligence, already spoken of, arises, which the railway company can repel only by showing that it exercised the proper degree of care to discover the defect, and to remedy it when discovered; it is not sufficient to show that the company did not know of the defect.313 In the practical application of this rule, if the plaintiff establishes the fact that the accident was caused by the defective construction of the roadway, of a bridge, of the track, or of the fastenings of a rail at the point where the accident occurred, he raises this presumption of negligence, which the carrier must rebut or pay damages.314 The rule of the text does

McElroy v. Nashua &c. R. Corp., 4 Cush. (Mass.) 400, 402, per Shaw, C. J.; Hanley v. Harlem &c. R. Co., Edm. Sel. Cas. (N. Y.) 359; Union &c. R. Co. v. Hand, 7 Kan. 380, 392; Virginia &c. R. Co. v. Sanger, 15 Gratt. (Va.) 230, 236; Nashville &c. R. Co. v. Messino, 1 Sneed (Tenn.) 220. Judicious observations on this subject will be found in International &c. R. Co. v. Halloren, 53 Tex. 46, 53, opinion by Bonner, J.

30 Ante, § 2722, et seq.

309 McFee v. Vicksburg &c. R. Co., 42 La. An. 790; s. c. 7 South. Rep. 720.

310 Palmer v. Delaware &c. Canal Co., 11 N. Y. St. Rep. 872; s. c. 46 Hun (N. Y.) 488; s. c. aff'd 120 N. Y. 170; 30 N. Y. St. Rep. 817; Seybolt v. New York &c. R. Co., 95 N. Y. 562; McCafferty v. Pennsylvania R. Co., 193 Pa. St. 339; s. c. 44 Atl. Rep. 435.

311 Pershing v. Chicago &c. R. Co., 71 Iowa 561; s. c. 32 N. W. Rep. 488. 312 Arkansas &c. R. Co. v. Griffith, 63 Ark. 491; s. c. 39 S. W. Rep. 550. 313 Arkansas &c. R. Co. v. Griffith, 63 Ark. 491; s. c. 39 S. W. Rep. 550.

314 Pershing v. Chicago &c. R. Co., 71 Iowa 561; s. c. 32 N. W. Rep. 488. The poverty of the railway company -the fact that it is struggling for existence and expending all its earnings and more upon its road,-will be no defense to an action for a breach of its contract to carry a passenger, which breach has been rendered necessary by the bad, dilapidated and ruinous condition of its road, and by the old, worn, and bad condition of its two engines, one of which has broken down and is in the shop for repairs: Hansley v. Jamesville &c. R. Co., 115 N. C. 602; s. c. 117 N. C. 565; 32 L. R. A. 543; 23 S. E. Rep. 443.

not make the carrier an insurer against defects in his roadbed or other means of transportation; nor does it demand of him the doing of things which are practically impossible: in order to charge him with liability for an injury arising from an accident through such a defect, it must have been such as might have been discovered and remedied before the accident, by the use of the high degree of care already described.315 It is scarcely necessary to say that the care demanded of the railway company in the safe maintenance of its means of transportation, extends to every part of its track, and must be used in maintaining safe culverts in its road, as well as in other respects; and while nothing is demanded of a railway company in this respect which the law deems unreasonable, yet it is not a correct use of legal phraseology to describe it as reasonable care, as was done in one case.* 316

§ 2797. Further of this Duty.-But it does not follow from a consideration of the high degree of care which the law imposes upon the carrier in this respect, that he is bound to employ, for the purpose of making inspections and reports of his roadway, persons of extraordinary skill in that department of mechanics or engineering. It is obvious at a glance that such a rule would be impracticable: since if this requirement were imposed upon all carriers there would not be enough men of this degree of skill to go round and serve them

315 Houston &c. R. Co. v. Norris (Tex. Civ. App.), 41 S. W. Rep. 708 (no off. rep.). Even where a passenger is injured in such a presumptively negligent catastrophe as the breaking of a railway trestle, the company will not be compelled to pay damages if all the evidence shows that there was in fact no negligence imputable to it: Wabash &c. R. Co. v. Koenigsam, 13 Ill. App. 505.

310 Stoher v. St. Louis &c. R. Co., 91 Mo. 509; s. c. 4 S. W. Rep. 389. This is perhaps the proper place to make the caution that an instruction imposing on a railroad company the duty to so build and keep its bridges in repair as will secure 'the reasonably safe passage of its trains in times of high water, etc., is erroneous; since the law does not make the company an insurer, but only compels the exercise of that high degree of care which very cautious and prudent persons would exercise under like circumstances: San Antonio &c. R. Co. v. Lynch

(Tex. Civ. App.), 55 S. W. Rep. 517. For an instruction given for the plaintiff, which was challenged on the ground that it predicated negligence in the care of its track, where the petition predicated it upon neg. ligence in running the train into an open siding, but which passed muster on the view that the expression "care of the track," in the connection in which it was used, meant merely care of the track with reference to the switch being in proper position, see International &c. R. Co. v. Bibolet (Tex. Civ. App.), 57 S. W. Rep. 974. A statute requir ing the locomotive whistle to be sounded when "any person, animal, or other obstruction appears on the road," refers only to human beings or animals which would or might be frightened from the track by the sound of the whistle, and not to inanimate objects, such as a rail lying across the track which derails a train, injuring a passenger thereon: Louisville &c. R. Co. v. McKenna, 7 Lea (Tenn.) 313.

all, and men possessing merely ordinary skill would be thrown out of employment. The law demands the employment for such purposes of persons of competent skill. Thus, it has been reasoned that if the break in a railroad rail is a sudden fracture brought about by cold weather, and was not contributed to by defects in the track, the company is not liable, provided the rail was such as a person of competent skill might reasonably presume, upon inspection, to be free from liability to fracture.317 An intimation of the highest national court is that the carrier will exonerate himself where he employs engineers and mechanics of ordinary skill; for that court reasons that a railroad company is bound to prevent a landslide in a cut made by it, which ordinary skill would enable engineers to foresee, and is liable for accidents occurring therefrom.318 Reasoning upon the same plane, another court has held that a railroad company is not liable for the insufficiency of its culverts in an unprecedented storm by reason of the fact that the danger might have been averted if known, where the degree of care and prudence used was that which cautious and prudent persons would use under such circumstances, without reasonable knowledge that such a storm was likely to occur.319 Another court, which is not behind any in imposing an exact degree of care and skill upon railway carriers of passengers, has held that the liability of a railroad company for injuries to a passenger, caused by a washout at a culvert, depends upon whether due care and skill were exercised in the construction of the culvert, or whether the want thereof contributed to the accident, and not alone upon whether the accident would not have occurred but for the breaking of a dam on adjoining property not under the company's control.320 Another court, shaving this doctrine down to the plane of reasonable care, has held that a railroad company is not bound to furnish anything better than a reasonably good track for the transportation of passengers; 321 and it may be concluded, on any theory, that a carrier of passengers is not obliged to adopt an appliance from the mere fact that it is in use by one other corporation, where there is nothing to call its attention to the fact that its structure as it stands is insecure or unsafe.322

$2798. Application of these Principles to Washouts Caused by Extraordinary Storms. In a case where a passenger was killed by

317 Missouri &c. R. Co. v. Johnson, 72 Tex. 95; s. c. 10 S. W. Rep. 325. 318 Gleeson v. Virginia &c. R. Co., 140 U. S. 435; s. c. 44 Alb. L. J. 33.

219 Libby v. Maine &c. R. Co., 85 Me. 34; s. c. 20 L. R. A. 812; 26 Atl. Rep. 943.

320 Bonner V. Wingate, 78 Tex. 333; s. c. 14 S. W. Rep. 790.

321 Pattee v. Chicago &c. R. Co., 5 Dak. 267; s. c. 38 N. W. Rep. 435.

322 Fox v. New York, 70 Hun (N. Y.) 181; s. c. 53 N. Y. St. Rep. 902; 24 N. Y. Supp. 43.

the giving way of a railway embankment after an unusual storm, the Judicial Committee and Lords of the Privy Council, after animadverting upon the impracticability of laying down any rule upon the subject thought that the railway company ought to have constructed their works in such a manner as to be capable of resisting all the violence which, in the climate of Canada, where the accident took place, might have been expected, though perhaps rarely, to occur. In other words, their conclusion was that a railway company is bound to construct their roadway so that it will resist those extraordinary floods which sometimes, though not often, occur.323 The degree of care required of a railroad company in avoiding the dangers of rainfalls and freshets has been thus stated: "A railroad company is required to so construct its roadbed and track as to avoid such dangers as could be reasonably foreseen, by competent and skillful engineers, might be occasioned from the ordinary rainfalls and freshets incident to the particular section of the country through which it is constructed. But it would not be guilty of such culpable negligence as to make it liable in damages, if it failed to provide against such extraordinary floods or other inevitable casualties caused by some hidden force of nature, unknown to common experience, and which could not have been reasonably anticipated by the ordinary engineering skill and experience required in the prudent construction of such railroad. If an accident should happen from such cause, on a roadbed and track which had been properly constructed and kept in good repair, when the agents and employés in charge of the train were in the due exercise of that degree of caution and prudence necessary at all times, and when they did not have, from information conveyed

323 Great Western R. Co. v. Braid, 1 Moo. P. C. C. (N. S.) 101; s. c. 9 Jur. (N. S.) 339; 11 Week. Rep. 444; 8 L. T. (N. S.) 31. In this case reference is made to the case of Withers v. North Kent R. Co., 3 Hurl. & N. 969; s. c. 27 L. J. (Exch.) 417; at nisi prius, 1 Fost. & Fin. 165, which is cited as an illustration of this. Though this latter case contains some expressions which are not law, the correct result was no doubt reached. A railway embankment, . consisting of sandy soil, after having stood for five years over marshy ground, was washed away by an extraordinary storm of rain, and a night train ran off the track, and the plaintiff, a passenger, was injured. A verdict was returned for the plaintiff; the judgment upon which was set aside by the court

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in banc, on the ground that there was no evidence of negligence. Bramwell, B., declared 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 prudence; otherwise they would be insurers of the safety of the passengers. All the judges thought that the existence of the line for five years, notwithstanding the country was subject to floods, was evidence that there was no negligence. The observation of Baron Bramwell that it was for the plaintiff to show negligence, ignores the rule which obtains in nearly all the courts that the fact that the accident happens through a defect in some appliance of the carrier is, unexplained, evidence of negligence.

to them, or from their own personal observation, reasonable grounds to anticipate impending danger, and consequently did not use such extraordinary precautions as might have otherwise averted it, then the law characterizes it as an act of God, or such inevitable accident as is incident to all human work, and which would relieve the company from liability. Even under the rigid rules of the common law, which made common carriers insurers of the safe delivery of all articles committed to their care, such cause would have excused them."324

$2799. Further of Sudden Floods and Washouts.-Sudden floods are liable to happen, especially in mountainous and hilly countries, in valleys, cañons or arroyos. The emplacements of railway tracks ought to be constructed of materials sufficiently strong to resist them, such as stone culverts with large openings, earth embankments well