dinary or reasonable care is a varying quantity, increasing or diminishing according to the increase or diminution of the risks attending the business;395 and it has been well said by one eminent court, and often repeated by others, that in case of railway carriage by steam the risks of human life and limb are so great that any negligence may well deserve the epithet of gross.396 The American rule then is that a railway carrier of passengers owes to its passengers the duty of exercising the highest degree of care, diligence and skill in operating its trains.397 This article will be devoted to the applications of this doctrine in various situations and relations. $2819. Expressions of this Rule of Diligence in Railway Cases.The doctrine of the preceding text is peculiarly applicable to railway carriers, in view of the appalling calamity which often attends either a derailment or a collision. With reference to the measure of care exacted from such a carrier, the following language announced and subsequently repeated in a decision of the highest national court, has been often employed by other judges: "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. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of 'gross.' It has been said, in substance, by another court, that "the law, in tenderness to human life and limb, holds railroad companies liable for the slightest negligence, and compels them to repel by satisfactory proofs every imputation of such negligence." And, therefore, where the death of a passenger on a railway is caused by the slightest neglect against which human prudence and foresight could have guarded, the company is liable in damages; and it is proper to instruct 2398 395 Vol. I, § 25. 396 Grier, J., in Philadelphia &c. R. Co. v. Derby, 14 How. (U. S.) 468; s. c. Thomp. Carr. Pass. 31; Steamboat New World v. King, 16 How. (U. S.) 469; s. c. Thomp. Carr. Pass. 175. 397 St. Louis &c. R. Co. v. Sweet, 60 Ark. 550; s. c. 31 S. W. Rep. 571. An instruction that, "defendant being a carrier of passengers for hire, the law imposes upon it a reasonable degree of care and foresight to prevent injuries to persons lawfully travelling in its cars," is defective in not defining what a reasonable degree of care is: Dickert v. Salt Lake City R. Co., 20 Utah 394; s. c. 59 Pac. Rep. 95. 398 Grier, J., in Philadelphia &c. R. Co. v. Derby, 14 How. (U. S.) 486; s. c. Thomp. Carr. Pass. 31; repeated in Pennsylvania Co. v. Roy, 102 U. S. 451, opinion by Harlan, J.; s. c. 1 Am. & Eng. Rail. Cas. 225; 10 Reporter 793; repeated in Baltimore &c. R. Co. v. Noell, 32 Gratt. (Va.) 394, 399, and in many of the following cases. the jury that the slightest neglect against which human prudence and foresight might have guarded, and by reason of which the death of the passenger may have been occasioned, renders the company liable in damages for such death. It is also proper to instruct them that a railway company carrying passengers is held by the law to the utmost care, not only in the management of its trains and cars, but also in the structure, repair, and care of its track and approaches, and in all other arrangements necessary to the safety of passengers. 399 Further expressions of the rule in railway cases could be multiplied, though at the risk of repetition, such as the following: "The law, in tenderness to human life and limb, holds railroad companies liable for the slightest negligence, and compels them to repel by satisfactory proofs every imputation of such negligence."400 Such carriers are bound to carry safely those whom they take into their carriages, as far as human foresight and care will go, and are bound "to use the utmost care and diligence of very cautious persons."402 They are "bound to the most exact care and diligence, not only in the management of the train and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of passengers."403 They are "bound to exercise all the care and skill which human foresight and diligence can suggest."404 "As far as human care and foresight will go,' has become almost a familiar form of expression in stating the rule of duty."405 "They are bound to the most exact care and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of passengers. "406 An instruction that "if the defendant could have prevented the accident by the utmost human sagacity and foresight with respect to their track, then the defendant is liable," has been held to be established law; and it was held no error to refuse to charge that "the utmost human sagacity required of the defendant did not require of the defendant to take such extraordinary measures in constructing, operating, and maintaining its railroad, as are not and have 309 Baltimore &c. R. Co. v. Noell, 32 Gratt. (Va.) 394, 399; Baltimore &c. R. Co. v. Wightman, 29 Gratt. (Va.) 431. See, also, Farish v. Reigle, 11 Gratt. (Va.) 697. 400 Staples, J., in Baltimore &c. R. Co. v. Wightman, 29 Gratt. (Va.) 431, 445. 402 Oliver v. New York &c. R. Co., Edm. Sel. Cas. (N. Y.) 589. 403 Shaw, C. J., in McElroy v. Nashua &c. R. Corp., 4 Cush. (Mass.) 400, 402. 404 Brown v. New York &c. R. Co., 34 N. Y. 404, 408; rev'g s. c. 31 Barb. (N. Y.) 385. 405 Bowen v. New York &c. R. Co., 18 N. Y. 408, 411. 408 Virginia &c. R. Co. v. Sanger, 15 Gratt. (Va.) 230, 236. not been in use in the constructing, operating, and maintaining of railroads."407 § 2820. Other such Expressions as to Railway Carriers."Railway companies who are carriers of passengers are required to use all the means reasonably in their power to prevent accident. It is not necessary, to charge them with liability, that they be guilty of great negligence. It is enough if the accident was caused solely by any negligence on their part, however slight, if by the exercise of the strictest care or precaution, reasonably within their power, the injury would not have been sustained."408 "When a railroad company engage in the business of common carriers [of passengers], they undertake that the road is in good travelling order and fit for use, and that the engines and carriages employed are roadworthy and properly constructed, and furnished according to the present state of the art; and if an injury results from the imperfection of the road, the carriages, or the engines, the company are liable, unless the imperfection was of a character in no degree attributable to their negligence. They are also bound for a due application, on the part of their servants and agents, of the necessary attention, art, and skill; and if the injury to the plaintiff might have been avoided by the utmost degree of care and skill on the part of the agents and servants of the company, they are liable." It is also proper to tell a jury that the company will be liable if the injury which happened might have been avoided by the conductor "by the most skillful and prompt use of all the means in his power."409 The Supreme Court of Illinois have stated the rule to be, that "carriers of passengers for hire are bound to use the utmost care and diligence in providing for their safety, by the use of sufficient and suitable modes of conveyance, in order to prevent those injuries which human care and foresight can guard against. Having thus provided the means of transportation, they 407 Union &c. R. Co. v. Hand, 7 Kan. 380, 392. Expressions more or less similar to the above will be found in the following cases: Searle v. Kanawha &c. R. Co., .32 W. Va. 370; s. c. 9 S. E. Rep. 248; Louisville &c. R. Co. v. Lucas, 119 Ind. 583; s. c. 6 Rail. & Corp. L. J. 256; 21 N. E. Rep. 968; Dodge v. Boston &c. S. S. Co., 148 Mass. 207; s. c. 2 L. R. A. 83; 39 Alb. L. J. 211; 19 N. E. Rep. 373; Louisville &c. R. Co. v. Jones, 83 Ala. 376; s. c. 3 South. Rep. 902; Florida R. &c. Co. v. Webster, 25 Fla. 394; s. c. 5 South. Rep. 714; Louisville &c. R. Co. v. Ritter, 85 Ky. 368; s. c. 3 S. W. Rep. 591; Chattanooga &c. R. Co. v. Huggins, 89 Ga. 494; s. c. 52 Am. & Eng. Rail. Cas. 473; 15 S. E. Rep. 848. 408 Mr. Justice Davis to the jury in Seymour v. Chicago &c. R. Co., 3 Biss. (U. S.) 43. 409 Nashville &c. R. Co. v. Messino, 1 Sneed (Tenn.) 220; opinion of the court by Caruthers, J. * * are in like manner to use the utmost care and diligence in managing, directing, and using those means, so that, as far as human care and foresight can go, they may guard against injury. Having done all that human care and foresight can do, reasonably, an injury happening, they are not liable. Pure accidents will excuse them. They are not liable at all events, and the negligence of the passenger producing the injury, without their fault, will also relieve them from liability. But the magnitude of the value of human life is such that it requires of carriers of passengers this degree of care and foresight. When, by the increased facilities for travel, so large a portion of the population of our country are intrusted to the care of carriers of passengers by railroads and steamboats, and accidents are so lamentably frequent, it would not be proper to relax this rule, for upon it depends the safety of the travelling public."410 But in a later case these expressions were somewhat modified by the explanation that the rule is not without qualification, that a railway company employed in transporting passengers must do all that human care and vigilance can do, both in providing safe coaches, machinery, tracks, and roadway, and in keeping the same in repair; but it is that the carrier shall do all that human care, vigilance, and foresight can reasonably do to these ends, consistently with the mode of conveyance and the practicable operation of the road.411 Such a rule, it is said, would prevent persons of ordinary prudence from engaging in that character of business.+12 § 2821. Must Adopt Rules and Regulations to Promote Safety, and Conform to them.-Such companies must adopt such rules and regulations for the running of their trains as will promote safety; and, after adopting them, they must conform to them, or be responsible for injuries to passengers resulting from a departure from them.+13 This duty they owe, not only to their passengers, but to their employés.414 § 2822. Injuries from Overloading Passenger Cars.-It is also obvious that railway companies are under an obligation not to over 410 Chicago &c. R. Co. v. George, 19 Ill. 510, 517. 411 Pittsburgh &c. R. Co. v. Thompson, 56 Ill. 138; Tuller v. Talbot, 23 Ill. 357. 412 Tuller v. Talbot, supra. 413 Chicago &c. R. Co. v. George, 19 Ill. 510. VOL. 3 THOMP. NEG.-19 414 Cooper v. Iowa Central R. Co., 44 Iowa 134; Chicago &c. R. Co. v. Taylor. 69 Ill. 461; Vose v. Lancashire &c. R. Co., 2 Hurl. & N. 728. As to this duty to employés, see the next volume. 289 load their vehicles, similar to that which has been put upon stage proprietors. +15 But they are also under an obligation to carry safely and comfortably all proper persons who may apply to be carried, tendering the requisite fare.416 Great difficulty may be experienced at times in discharging this obligation, especially during the periods of fairs or great public gatherings. If a railway coach breaks down in consequence of being overloaded, there will be no difficulty, on principles already stated, in holding that the company will be liable for any injury which may thereby happen to passengers. But if a passenger in an overloaded railway coach is injured in consequence of something not directly connected with the fact that the coach is overloaded, he will not be entitled to recover damages of the company for its negligence in this particular. This is very clear, as a general statement of doctrine; but the application which it received in a very greatly discussed case in the House of Lords, may, it is thought, be doubted. In that case it appeared that the plaintiff was a passenger by the defendants' railway. The carriage in which he rode was full. At a certain station (Gower Street) three persons forced themselves in, and were obliged to stand. At the next station (Portland Road) there was a rush of fresh passengers, by whom the door of the carriage was opened from the outside, and who endeavored to crowd their way in. The plaintiff voluntarily rose, or partly rose, from his seat to push these persons back. The train moved; the plaintiff, to save himself from falling, put his hand upon. the edge of the door of the carriage; at that moment a railway porter came up, pushed away the persons trying to get in, slammed the door to, in doing which the plaintiff's thumb was caught and crushed. It was held that this evidence did not establish such negligence on the part of the company as could be said to have occasioned the mischief. Said the Lord Chancellor (Lord Cairns): "In the present case there was no doubt negligence in the company's servants, in allowing more passengers than the proper number to get in at the Gower Street station; and it may also have been negligence, if they saw these supernumerary passengers, or if they ought to have seen them, at Portland Road, not to have removed them; but there is nothing, in my opinion, in this negligence which connects itself with the accident. that took place."417 Where a street railway company has control 415 Post, §§ 3637, 3639. 416 Davis v. Kansas &c. R. Co., 53 Mo. 317, 320; Bass v. Chicago &c. R. Co., 36 Wis. 450, 461; Thorpe v. New York &c. R. Co., 13 Hun (N. Y.) 70, 75; Willis v. Long Island R. Co., 32 Barb. (N. Y.) 399; s. c. aff'd 34 N. Y. 670. 417 Metropolitan R. Co. v. Jackson, L. R. 3 App. Cas. 193, 198. |