revetted with stone, or bridges erected upon skeleton work such as will admit of the free passage of large quantities of water; and the company ought to be held liable for an injury to a passenger caused by the wreck of a passenger train in a so-called "washout" in such a place. If the track is not so built and protected as to be proof against "washouts" such as are liable to occur in the particular climate or district of country, then, in time of a storm, the rights of passengers demand that a system of inspection and signaling should be put in force by the company and maintained, which will apprise those in charge of a passenger train of the existence of a "washout" or of a portion of the track made dangerous by a storm; and the courts ought not to be ingenious in inventing excuses for railroad companies which kill their passengers through negligence in this respect. Although a railroad bridge may have been weakened by a sudden and unprecedented flood, yet if there has been time to discover the fact and to put those in charge of a train on their guard before they attempt to pass over it, the railway company will be liable for injuries resulting from the giving way of the bridge while the train is passing over it.325 The severest storm which happens in a particular climate or district of our country within recent memory is always called "unprecedented." Railroad carriers of passengers ought not to be indulged in making their roadbed and structures so weak that they will give way during such storms as may happen in the climate and district, although they may be a little more severe, and may bring down a little greater flood than any which have previously happened within a recent period. The storm may be "unprecedented" and yet, if the drainage devised to relieve the embankment of the railroad of an excessive pressure of water is insufficient, negligence may be imputed to the company; and it will not be relieved from liability by the fact that its road was constructed under the supervision of a competent engineer, and that the drainage at the point of the accident was provided for in the manner directed and approved by him.326 In the eastern and central parts of the United States the unprecedented storms so often spoken of in judicial opinions generally take place over a wide area of country, so as to admonish any railway management, having a proper system of inspection, of their existence. The agents and officers of the railroad therefore have knowledge that great floods may have made their track or bridges unsafe at particular places. They are clearly bound to act upon that knowledge, and, so far as there is time and opportunity,

325 Louisville &c. R. Co. v. Thomp- derson, 94 Pa. St. 351; s. c. 39 Am. son, 107 Ind. 442. Rep. 787.

320 Philadelphia &c. R. Co. v. An

to take measures to protect their passengers from injury; and if their passengers are injured from such a source, the legal presumption will be that it was the result of negligence.327 On the other hand, in mountainous districts in the western and southwestern portions of our country, small arroyos are sometimes visited with waterspouts, or by sudden, violent and excessive rainfalls which send sudden and great volumes of water down the channels of rivers, or over the dry beds of cañons, sweeping everything in their wake. The best system of inspection and signaling may be applied to discover and to advise an approaching passenger train of a "washout" proceeding from such a source; and where a passenger train is wrecked under such conditions, the company ought not to be held liable, for it has not failed in the exercise of the high degree of care which the law puts upon it.328 In an action by a passenger for an injury sustained in an accident to the defendant's train from the undermining of an embankment by one of the numerous "unprecedented" storms occurring in all parts of the country, it was held that the defendant was entitled to an instruction to the effect that if it, out of abundant caution, after the accident, altered its embankment, this fact was not to be taken into consideration.329

§ 2800. Further of this Subject.-The care to be applied by a . railway company in respect of its road is not to be tested by the standard of the judgment of experienced railroad men, and an instruction which so tells the jury is properly refused.380 Numerous

Louisville &c. R. Co. v. Thompson, 107 Ind. 442; s. c. 5 West. Rep. 833.

32 An example of what is here said is furnished by International &c. R. Co. v. Halloren, 53 Tex. 46; s. c. 37 Am. Rep. 744. For a similar case in Virginia, where a similar conclusion was reached on similar grounds, see Norfolk &c. R. Co. v. Marshall, 90 Va. 836; s. c. 20 S. E. Rep. 823. But even here it is worth consideration whether the law should not hold railway companies to the obligation of so constructing their roads as to defend them against sudden incursions of water due to mountain cloud-bursts.

#29 Ely v. St. Louis &c. R. Co., 77 Mo. 34. It was held that a railroad company which knew of the dangerous character of a stream crossed by its track, and that the bridge over the stream was liable to be injured in case of a severe storm, was guilty of such negligence as would render

it liable for an injury to an express agent by the collapse of the bridge while the train in which he was riding was crossing it, after an unusually severe storm, in which a bent was washed out, in failing to inspect the bridge before the train went upon it: Cobb v. St. Louis &c. R. Co., 149 Mo. 609; s. c. 13 Am. & Eng. Rail. Cas. (N. S.) 632; 50 S. W. Rep. 894; distinguishing American Brewing Asso. v. Talbot, 140 Mo. 674, where a warehouse fell after having stood for six years, and its fall was due to an excessive and unheard-of rise in the river; and criticising Fuchs v. St. Louis, 133 Mo. 168; s. c. 34 L. R. A. 118,-a case in which the city of St. Louis was held liable for negligence because it did not anticipate and provide against an explosion in a sewer: something never known to have occurred before.

330 Missouri &c. R. Co. v. Jarrad, 65 Tex. 560. An allegation that de

expressions of opinion upon this subject have been given in a preceding article;331 but in later decisions, the courts have repeated the doctrine that a railroad company is bound to see that the road and all its appurtenances are in perfect order, and free from any defect which the utmost vigilance, aided by the highest degree of knowledge and skill, could discover or prevent ;332 and that such a company should inspect its lines with more than ordinary promptitude under circumstances of more than ordinary peril,-as in case of violent storms,particularly those portions which are most liable to injury by storm. or flood, and that this vigilance should be in proportion to the peril.333 The courts insist upon the duty of a careful, skillful and continuous inspection. Thus, it has been reasoned that a railroad company, before trusting the lives of passengers upon its bridges, must carefully and skillfully test the material used therein; and the duty of inspection continues thereafter during their use, requiring a test from time to time to ascertain whether they are being impaired by use or exposure to the elements;334 that such a railroad company is liable for an injury to a passenger resulting from a derailment of cars occasioned by the giving way of rotten and unsafe ties in the roadbed, where the defect could have been discovered by a proper discharge of the duty of inspection, in time to avert the accident;335 and that a mere continued spell of wet weather, with a fall of snow, is not of itself such an unexpected and unforeseen contingency as will release a railroad company from liability to a passenger for injuries resulting to him from the failure to keep the track in repair.336 The decisions also impose upon railway carriers of passengers the duty of using every reasonable precaution to prevent injury to their passengers from roaming cattle upon their tracks, such as the construction of a fence whose want renders the track unsafe, and the keeping of a proper watch by a fireman, where the engineer is unable to see both sides of the track;337 and of removing timber and bushes along

Me. 34; s. c. 20 L. R. A. 812; 26 Atl.
Rep. 943.

334 Louisville &c. R. Co. v. Snyder, 117 Ind. 435; s. c. 3 L. R. A. 434; 20 N. E. Rep. 284.

335 Furnish v. Missouri &c. R. Co., 102 Mo. 438; s. c. 13 S. W. Rep. 1044; Rutherford v. Shreveport &c. R. Co., 41 La. An. 793; s. c. 41 Am. & Eng. Rail. Cas. 179; 6 South. Rep. 644.

336 Missouri &c. R. Co. v. Johnson, 72 Tex. 95; s. c. 10 S. W. Rep. 325.

337 Fordyce v. Jackson, 56 Ark. 594; s. c. 20 S. W. Rep. 528; rehearing denied in 56 Ark. 601; s. c. 20 S. W. Rep. 597.

their tracks on their lands, so as to keep the engineer's view unobstructed.338

§ 2801. Application of these Principles to Cases where Rails, Axletrees, etc., are Broken by Frost.-The fact has been developed by testimony in at least one case that good and perfectly sound rails will break in cold weather when the track is in perfect order; and, so far as is known, there is no way of preventing such accidents, except, possibly, to increase the size of the rails to dimensions greater than those in common use.339 Suppose that such an accident has happened, and it appears from undisputed evidence that the rail which broke was, previous to the accident, a sound rail, of the usual and a good size, and made of good, sound, and solid iron; that the breaks were perfectly new and bright; that no fracture or crack was discovered in the pieces broken off; that the end of the rail made a good joint, was perfect, not battered down, and in good order; that the chair was good; that the ties were likewise good, and sufficiently thick to support the rail; that there was a sufficient number of them; that they were sufficiently close together to give a good bearing for the rail; and that the road was well ballasted with gravel around the ties. Under such evidence, there is no case to go to the jury, and the judge ought to grant a nonsuit.340

328 Louisville &c. R. Co. v. Ritter, 85 Ky. 368; s. c. 3 S. W. Rep. 591.

339 See McPadden v. New York &c. R. Co., 44 N. Y. 478.

340 McPadden v. New York &c. R. Co., 44 N. Y. 478; reversing s. c. 47 Barb. (N. Y.) 247. Where the axletree of a coach broke on a cold day, in consequence of which a passenger was injured, and the defense was that the breaking happened in consequence of frost, the trial court declined to give the following instructions at the request of the defendants: (1.) "If the jury believe from the evidence that the cause of the accident which occasioned the plaintiff's injury was the breaking of the axletree of the defendants' coach from frost, and not from any defect in the axletree, then they should find for the defendants. (2.) If the jury believe from the evidence that the cause of the accident which occasioned the plaintiff's injury was the breaking of the axletree of the coach from frost, and not from any defect in the coach or in the axletree, then, whether the coach was old and defective or not,

they should find for the defendants. (3.) If the jury believe from the evidence that it is equally as probable that the axletree broke from the effect of the frost as from any defect in the coach or in the axletree, then the jury should find for the defendants." But the court, on the part of the plaintiff, instructed the jury as follows: "If the coach might have been constructed in a manner that would have obviated all danger from frost, and still have been suitable for the business of carrying passengers, or if the defendants, by housing or taking the utmost care of their coach when it was not running, could have prevented the action of the frost, then, even if the axletree did break from frost, that would not constitute a defense." These rulings were held error, the Supreme Court saying: "The instruction given by the court for the plaintiff was doubtless intended as a qualification of instructions given for the defendants; but, in any light, was calculated to mislead the jury, and, if held to be the law, would extend the liability of

§ 2802. Rule where the Accident is in Part Produced by an Unforeseen Cause.-If there were no rule exacting an extraordinary degree of diligence of carriers of passengers, still it would not be error for a judge to refuse to tell a jury that if the injury was produced in part by an unforeseen cause, and in part by a cause attributable to negligence, the plaintiff could not recover.341