been held no error to refuse to charge that the plaintiff could not. recover unless there was some apparent source of danger to the embankment which gave way.342 Carriers of passengers are answerable even for the negligence of another railroad company over whose road they run their cars,-as, where a train is thrown from the track by a switch belonging to another company.343 § 2803. What Other Latent Defects have been Held ActionableWhat not Actionable.-It has been held actionable negligence in a railway carrier of passengers to leave the brake wheel on a passenger car unfastened, where the application of the air brake causes the wheel to revolve rapidly, unless it is fastened. It has been held that a railway carrier is not liable to a passenger injured by her clothing catching in a broken spring hook used to fasten a curtain on an open railway car, where it is not shown at what time it was broken, and it may have been broken during the particular trip,-such hook not being of such a dangerous character as to require the very highest degree of diligence to discover and remove it.345 § 2804. Negligence of Manufacturer or Contractor Imputed to Carrier.346-The exact rule of skill and diligence which the law imposes upon the carrier to the end that his means of transportation shall be safe, would be substantially frittered away if the courts were to hold that when those means of transportation fail, to the injury of his passengers, the carrier can shelter himself behind the negligence of the manufacturer or contractor by whom they were originally 342 Brehm v. Great Western R. Co., that, three months before the acci34 Barb. (N. Y.) 256. dent, the axle had been tested by the 343 McElroy v. Nashua &c. R. Corp., best approved methods in use; that 4 Cush. (Mass.) 400. 344 Cleveland &c. R. Co. v. McHenry, 47 Ill. App. 301. 345 Kelly v. New York &c. R. Co., 109 N. Y. 44; s. c. 11 Cent. Rep. 874; 15 N. E. Rep. 879. In an action against a railroad company to recover for injuries received by the plaintiff in consequence of the breaking of an axle under a locomotive tender, the jury found generally for the plaintiff; and also specially that the defective axle was discoverable by a practicable test, and that the same broke at a point in the road where the rails were short and the ties bad; and there was also a special finding, in answer to interrogatories by the defendant, the tender had been inspected before the train started on the trip, and any flaw in the axle could not have been detected by such inspection at that time; that it was made by a reputable manufacturer, and received no unusual strain before it broke; that the train was running at a safe rate of speed; that the road was in ordinary condition, and that the employés of the road had been guilty of no act of negligence in particular. It was held that the defendant was entitled to judgment, notwithstanding the general verdict: Grand Rapids &c. R. Co. v. Boyd, 65 Ind. 526. 346 This section is cited in §§ 3392, 3495. made. The rule which exonerates a proprietor from the payment of damages happening through the negligence of an independent contractor doing work upon his premises, has no application to the case where the contractor is constructing or repairing the roadway or vehicles of transportation of a carrier of passengers.347 Whatever the rule may be in other relations, when the question involves the duty of a common carrier as toward his passengers, the person constructing his machinery or appliances becomes his alter ego. The doctrine of respondeat superior applies. The question is not a question of the personal negligence of the carrier, but it is equally a question of the negligence of the agents who constructed the machine. Thus, where the accident resulted to the plaintiff from the breaking down of a stand erected for the viewing of certain races, which had been built by competent persons and leased to the defendant, and the plaintiff had paid to defendant a compensation for admission to the stand,-it was held that he could maintain an action against the defendant for the damage thus sustained, although the defendant was himself free from all negligence, and had employed a competent person to erect the stand.348 In like manner, where an accident occurred by the washing away of the embankment of a railroad, caused by insufficient drainage, it was held that the company would not be relieved of liability, by showing the fact that the road was constructed under the supervision of a competent engineer, and that the drainage at the point of the accident was provided for in a manner directed and approved by him.349 § 2805. Further of the Negligence of the Manufacturer or Contractor. 50-So, the negligence of the manufacturer of the vehicles used by a common carrier is, in theory of law, the negligence of the carrier himself. It is not sufficient that the carrier assures himself that the manufacturer is of good repute in his business. If the manufacturer has failed to apply a reasonable test which would have ascertained the defect, the carrier is answerable for the consequences of this negligence, as though it had been his own.351 This doctrine is denied by the Supreme Court of Michigan, but upon reasons which are believed to be unsound.352 In like manner, where the accident 347 Carrico v. West Virginia &c. R. Co., 39 W. Va. 86; s. c. 24 L. R. A. 50; 19 S. E. Rep. 571. 16 Barb. (N. Y.) 353; s. c. 13 N. Y. 9; Thomp. Carr. Pass. 160; Caldwell v. New Jersey Steamboat Co., 47 548 Francis v. Cockrell, L. R. 5 Q. N. Y. 282; Carroll v. Staten Island B. 184. 349 Philadelphia &c. R. Co. v. Anderson, 94 Pa. St. 351. 350 This section is cited in § 3392. R. Co., 58 N. Y. 126; Burns v. Cork &c. R. Co., Irish Rep. 13 C. L. (N. S.) 543. 352 Grand Rapids &c. R, Co. v. Huntley, 38 Mich. 537. arose from the breaking down of a bridge, the fact that the carrier may have engaged the services of competent engineers, though a proper matter to be considered on the question of negligence, will not exonerate him, if the work is deficient; since this is only one element of diligence; he is still bound to adopt the best methods and make use of the best materials.353 He is also under a continuing duty of inspection and repair. So also, if the railway company, while using its track for the carriage of passengers, engages in a work to be done in the immediate proximity of its track, negligence in the performance of which would, in the opinion of cautious persons, endanger the passage of its cars, and an accident to a passenger is caused by an obstruction arising from negligence in the performance of such work, the company must pay damages; it will be no defense that the work was placed in the hands of a contractor, and that the negligence which caused the injury was that of one of his employés. Thus, through the negligence of the servants of a contractor for the doing of certain stone-work for a railway company, a stone was rolled or shaken from an embankment, and rolled under the wheels of a passenger train, throwing a car from the track and injuring a passenger. This was a case for damages.354 253 Grote v. Chester &c. R. Co., 2 Exch. 251; s. c. 5 Eng. Rail. Cas. 649. To the same effect is Brehm v. Great Western R. Co., 34 Barb. (N. Y.) 256. Virginia &c. R. Co. v. Sanger, 15 Gratt. (Va.) 230. The case turned chiefly on the propriety of the instructions to the jury. It follows that a special plea by the carrier, setting up the following facts, is no defense:-That the accident complained of happened in consequence of a fracture in a crank-pin of one of the carriages in which the plaintiff was being carried at the time; "that the said fracture was occasioned by an original defect in the material and construction of the crank-pin, and in the inside or center thereof, which said defect, before the said fracture occurred, was not capable of being detected by the defendants upon due and proper examination or observation; that the said crank-pin was purchased, together with the said locomotive engine, by the defendants in the due course of business, from competent manufacturers thereof, and was not made by the defendants; and that on the day in the said first count mentioned, and shortly before the VOL. 3 THOMP. NEG.-18 commencement of the said journey, the defendants duly and properly examined the said locomotive engine and crank-pin, and had not, at any time before the said fracture, any notice of the said defect in the crank-pin." The reason given for this conclusion is that this plea does not contain any averment as to the care or skill applied to the manufacture of the engine, or as to the care or skill exercised by them in the selection or inspection of it. All the averments are quite consistent with gross and culpable carelessness on the part of the manufacturers, and with gross and culpable negligence on their part in the purchase of it from the manufacturers. "If they had been themselves the manufacturers of the engine, they would have been bound to aver and prove that due care and skill had been exercised in the process of its manufacture. Are they to be relieved from legal liability because they allege that they have purchased it from a competent manufacturer? I think that would be a distinction dangerous to the public, and that, as Alderson, B., says, 'railway companies might buy ill-constructed or unsafe vehicles and the 273 $ 2806. Responsible for Slight Negligence of Manufacturer of his Means of Transportation.-It has been laid down in an important case, after much consideration, that whether a railway carrier of passengers manufactures the cars and engines used in transporting passengers or procures them from others, it is responsible that the utmost precaution, care and skill have been exercised in their construction to render them safe and sufficient. When, therefore, a passenger in a railroad car was injured by the breaking of one of the axles in consequence of a latent defect which could not be discovered. by the most vigilant external examination, it was held that the company was responsible to him for damages, although it purchased the car from extensive and skillful car-makers, and the axle was procured from a manufacturer of skill and reputation, if the defect could have been discovered in the process of manufacturing the axle or car by the application of any test known to men skilled in such business.355 § 2807. Competency of Manufacturer or Contractor an Evidentiary Fact Tending to Rebut Presumption of Negligence.— On the contrary, while the mere fact that the portion of the carrier's means of transportation which has failed, was constructed by a competent and reputable manufacturer or contractor, will not, of itself, exonerate the carrier, yet this is always an evidentiary fact, to be considered with other facts, as tending to show that the accident. which happened was not the result of negligence, but that it was the result of causes which were not preventable by the high degree of care and skill which the law puts upon the carrier; and consequently, it will in general be error to exclude such evidence. Thus, where an accident has happened from the breaking of some portion of the carrier's vehicle, as, for instance, a car wheel,-and there is no complaint that the train was not driven in a proper manner and by competent persons, the carrier will rebut the presumption of negligence, as shown in another section,356 arising from the happening of the accident, by showing that the wheel was the work of a skillful manufacturer, and that it was of the kind usually employed in the service, and had been subjected to and had withstood the usual tests.357 public be without remedy:'" Burns v. Cork &c. R. Co., Irish Rep. 13 C. L. (N. S.) 543; opinion by Pigot, C. J. 355 Hegeman v. Western Railroad Corp., 13 N. Y. 9; s. c. Thomp. Carr. Pass. 160. 350 Ante, § 2754. 357 Toledo &c. R. Co. v. Beggs, 85 Ill. 80. This was the rule laid down in Illinois &c. R. Co. v. Phillips, 49 Ill. 234, where the action was for injuries received by the explosion of a boiler of one of the company's locomotives, injuring the plaintiff. who was a bystander. Compare Losee v. Buchanan, 51 N. Y. 476; s. c. 61 Barb. (N. Y.) 86; 1 Thomp. Neg., 1st ed., p. 4; Marshall v. Wellwood, 38 N. J. L. 339; Spen § 2808. Degree of Care Required of Company Furnishing Motive Power. It has been held that a corporation furnishing the motive power to a railroad company, and not acting or chartered to act as a common carrier, is bound to use no more than the ordinary skill and diligence which this employment reasonably exacts, and is only liable for a corresponding degree of negligence or unskillfulness. It was so held where one corporation, by means of its own engines operated by its own servants, hauled the passenger trains of various railway companies across a bridge and through a tunnel, to a general depot at which all were accustomed to assemble and depart.358 In another case it was ruled that a railway company which receives on its track the cars of another company, placing them under the control of its. own agents and servants, and drawing them by its own locomotive on its own road to their place of destination, assumes towards the passenger thus coming upon its road in such cars, the relation of a common carrier of passengers, together with all the liabilities incident to that relation.359 But whether the company so acting be technically a common carrier of passengers or not, ought not, it should seem, to make any practical difference in the measure of its liability, where a passenger in one of the coaches which, by means of its engine and its servants, it is so hauling, is hurt through the negligence of its servants, or through the failure of its portion of the means of transportation. Any debate about degrees of negligence in such a case would be misleading; for "when carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. Any negligence in such cases may well deserve the epithet of 'gross.' 99360 § 2809. Presumption of Negligence from Derailment of Train.361— The rule that a presumption of negligence arises against the carrier from the happening of an accident from the failure of some of his cer v. Campbell, 9 Watts & S. (Pa.) 32; Witte v. Hague, 2 Dow. & Ry. 33; Jones v. Yeager, 2 Dill. (U. S.) 64; Morris v. Gleason, 1 Ill. App. 510; Allerton Packing Co. v. Egan, 86 Ill. 253; s. c. 18 Alb. L. J. 295; 10 Chic. Leg. N. 169; Keegan v. Western R. Corp., 8 N. Y. 175; s. c. Seld. Notes (N. Y.) 44; Cayzer v. Taylor, 10 Gray (Mass.) 274; Noyes v. Smith, 28 Vt. 59; Columbus &c. R. Co. v. Arnold, 31 Ind. 177. The rule of the New York Court of Appeals, as embodied in the case of Hegeman v. Western R. Corp., 13 N. Y. 9; s. c. Thomp. Carr. Pass. 160, is more stringent. 358 Keep v. Union R. &c. Co., 9 Fed. Rep. 625; s. c. 3 McCrary (U. S.) 208. The soundness of this reasoning may well be doubted. 359 Schopman v. Boston &c. R. Co., 9 Cush. (Mass.) 24. 300 Philadelphia &c. R. Co. v. Derby, 14 How. (U. S.) 468, 486; s. c. Thomp. Carr. Pass. 31; Steamboat New World v. King, 16 How. (U. S.) 469; s. c. Thomp. Carr. Pass. 175. 361 This section is cited in §§ 3485, 3508. |