Taylor v. Grand Trunk Railway Company. seems to have been understood that the carrier was bound absolutely to see that his coach was road-worthy. In Brenner v. Williams, 1 C. & P. 414, it was held by BEST, C. J., that every coach proprietor warrants to the public that his stage coach is equal to the journey it undertakes, and that it is his duty to examine it previous to the commencement of every journey. See also Israel v. Clark et al., 4 Esp. 259, and 1 Starkie, 423. The doctrine of the American courts is still more strict and explicit; and the general current of the authorities is, that the carrier of passengers is bound to the utmost care and diligence of very cautious persons, and is responsible for any, even the smallest, neglect, holding their undertaking to be to carry their passengers with safety, as far as human care and foresight can go. This is distinctly laid down in Story on Bail. § 601, 601 a, and also in 2 Greenl. Ev. §221, and in 2 Kent's Com. *601, *602, and Redfield on Rail. chap. 17. This, it will be perceived, accords substantially with the definition of the highest degree of care required of bailees of goods, namely, that care and diligence which very prudent persons take of their own concerns. Story on Bail. § 16; Jones on Bail. 166, where it is said that slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels. It is true that doubts have often been expressed as to the utility of the theory which undertakes to define the degrees of negligence as slight, ordinary and gross, as in Steamboat New World v. King, 16 How. (U.S.) 474, and cases cited, where CURTIS, J., expresses the opinion that the attempt thus to define the degrees of negligence had better be abandoned. So it is in Briggs v. Taylor, 28 Vt. 184. But however this may be, some light may be gained in respect to the duty of carriers of passengers by steam, by considering some of the rules which have governed the courts in relation to bailments. When the contract of bailment is mutually beneficial to both parties, as in the case of bailments for hire, pledges and the like. the bailee has been held for ordinary care, which is defined to be that care which every person of common prudence and capable of governing a family takes of his own concerns (Jones on Bail. § 11; Story on Bail. § 11); while a bailee who alone receives a benefit, as in the case of the borrower, is bound to use extraordinary care. In the case of the bailee of goods, the obligation of care and dil Taylor v. Grand Trunk Railway Company. gence rises in proportion to the demand for it, although it still is only ordinary diligence that is required; but it is obvious that wat will constitute ordinary care will be affected by the nature, bulk and value of the goods bailed, for no one would expect the same care to be taken of a bale of cotton as of a box of jewelry or other thing peculiarly liable to be stolen or injured. The case of common carriers of goods is an exception to the gen eral rules applicable to bailments, and they are now regarded as insurers, and liable for all losses except such as are caused by the act of God or by the public enemies; and this is put upon the ground of public policy to guard against both negligence and collusion Moses v. Boston & Maine Railroad, 24 N. H. 84. Upon grounds of public policy, also, the carrier of passengers 18 bound to exercise the highest degree of care and diligence. To his diligence and fidelity are intrusted the lives and safety of large numbers of human beings. He assumes the trust voluntarily, and for it receives a sufficient compensation; and we think it very apparent that in no case of the bailment of goods is there so great and imperative a demand for the utmost skill and diligence as from the carrier of passengers. Especially is this true when the passengers are carried upon railroads by steam, for then, in consequence of the greater speed, the hazards to life and limb are largely increased. In The Philadelphia & Reading Railway Co. v. Derby, 14 How. (U.S.) 486, the court says: "When carriers undertake to convey persons by the powerful, but dangerous, agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence; and whether the consideration be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance or the negligence of careless agents. Any negli gence in such cases may well deserve the epithet of gross." And this statement is emphatically indorsed in the case of the Steamboat New World v. King, 16 How. (U. S.) 474, as resting not only on public policy, but on sound principles of law. In Redfield on Rail., § 149, note 5, the auther says: "If the degree of care and watchfulness is to be in proportion to the importance of the business and the degree of peril incurred, it is scarcely pos sible to express the extreme severity of care and diligence which should be required in the conduct of passenger trains upon railways." So in Hegeman v. Western R. R. Co., 3 Kern. 9, it is held that the Taylor v. Grand Trunk Railway Company. same precautions required in running a stage coach at the rate of six miles the hour would not be the test for a railroad car running thirty or forty miles the hour; and a similar view is adopted in 1 Smith's Lead. Cas. (5th Am. ed.) 328; note to Coggs v. Bernard. The measure of the care and diligence required of carriers of passengers, as laid down in Story on Bailments, Greenleaf's Evidence, Kent's Commentaries, and Redfield on Railways, as before cited, is fully sustained by the American cases. In Stokes v. Saltonstall, 13 Pet. (U. S.) 181, the instructions to the jury were, that it was incumbent on the defendant to prove that, in managing the coach, the driver acted with reasonable skill and with the utmost prudence and caution, and that, if the injury was occasioned by the least negligence or want of skill or prudence on his part, the defendant was liable; and on error these instructions were held to be correct, the court saying that the undertaking is that, as far as human care and foresight can go, the carrier will transport the passengers safely. In Massachusetts it is held that carriers of passengers are bound to use the utmost care and diligence to prevent the injury which human foresight can guard against (Ingalls v. Bills, 9 Met. 1); where it is said that the carrier is responsible for defects that might have been discovered upon the most careful and thorough examination. In McElroy and wife v. Nashua & Lowell R. R., 4 Cush. 400, it was held that the defendants were bound to the utmost 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 the passengers. In Maine the carrier is held for such care as is used by very cautious persons. Edwards v. Lord, 49 Me. 279. In Connecticut the carrier is held for the highest degree of care of a reasonable man. Hall v. Conn. River Steamboat Co., 13 Conn. 320; Derwent and wife v. Loomer, 21 id. 253; Fuller v. Naugatuck R. R., id. 557, 576. In Hadley and wife v. Cross, 34 Vt. 586, the doctrine of Ingalls v. Bills was applied to a livery stable keeper letting a defective carriage, namely, that he was liable if the defect could have been discovered upon the most careful and thorough examination. So in New York (in Hegeman v. Western R. R., 16 Barb. 353), it is held that the carrier is bound to conduct his business with all the care which human prudence and skill could uggest; and the defendants were held liable for injuries caused by VOL. II.-30 Taylor v. Grand Trunk Railway Company. a defect in a car made by a competent manufacturer, which defect was not discoverable upon a thorough examination after the car was finished, but might have been before, by bending the axle in which the defect was, and thus holding the carriers liable for the neglect of the manufacturer, and this decision was affirmed in 3 Kern. 9. In Caldwell v. Murphy, 1 Duer, 241, the charge of the judge that the law exacted of the carriers of passengers extraordinary care and diligence, and that they were liable for any injury unless it happened from pure accident, was held to be entirely correct, and that extreme care was required. In Camden & Amboy R. R. v. Burke, 13 Wend. 626, the court recognize the rule that the carrier is bound for the atmost care of very.cautious persons. In Railroad Co. v. Aspell, 23 Penn. 147, it was held, that a railroad was bound to exercise the strictest vigilance, and must carry their passengers safely, if human care and foresight can do it, and they are liable for any defect in the road, the cars or the engines, or any other species of negligence whatever of which they or their agents may be guilty. So is N. J. Railroad Co. v. Kennard, 21 Penn. 203. In Galena & Chicago R. R. v. Yarwood, 15 Ill. 468, it is said that the current of authorities both in England and America is uniform in holding these carriers to the utmost prudence and caution; holding them liable for the slightest negligence, and that the diligence of cautious persons is not enough. In Galena & Chicago R. R. v. Fay, 16 Ill. 558, it is held, that the highest degree of care, vigilance and skill are required, and that the carrier is responsible for the least neglect known to the law, short of insurance. In Frink v. Potter, 17 Ill. 406, it was held that carriers of passengers are liable for slight neglect, and that the law imposes upon them the duty of carrying their passengers safely, so far as is reasonably practicable, and that they would be liable for injury by the breaking of an axle by reason of frost, if by extraordinary care and attention the danger might have been avoided. Similar views are also maintained in Frink v. Coe, 4 Greene (Iowa), 555, and in Fairchild v. California Stage Co., 13 Cal. 599. In Kenny v. Neil, 1 McL. 540, it was held, that a passenger carrier was not liable for casualties which human sagacity could not foresee, and against which the utmost prudence cannot guard; that the driver is bound to exercise the utmost care and must be skillful, and that the employer is responsible for the least degree of imprudence and want of care in the driver; and much the same is Marcy Taylor v. Grand Trunk Railway Company. ▾. Tallmage, 2 McL. 157, holding that the carrier is bound to carry his passengers safely, as far as human skill can accomplish that object, and is chargeable for the least negligence or want of skill or prudence. In our own state it is said, per EASTMAN, J., that railroads as car. iers of passengers are liable for all damages that may arise to them. from even the smallest negligence on their part, or that of their servants. Cornwall v. The Sullivan R. R., 28 N. H. 159. A similar statement is made in Clark v. Barrington, 41 id. 51. The authorities cited fully sustain the general view taken by the judge in his instructions to the jury, and the question is whether in the illustrations given there was any thing calculated to mislead them. The objection most urged is the statement that defendants must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business. This is substantially the language of Judge Redfield in 2 Railways (3d ed.), 137, and is apparently based upon the idea that the rule calling for the utmost degree of care, vigilance and precaution must be understood, not to require such a degree of vigilance as will be wholly inconsistent with the mode of conveyance adopted, and render n impracticable. This is the doctrine of Tuller v. Talbot, 23 Ill. 357, where it is also said that this rule does not require the utmost degree of care which the human mind is capable of inventing, as such a rule would involve the expenditure of money, and the employment of hands so as to render it perfectly safe, and would prevent all persons of ordinary prudence from engaging in that kind of business. But the rule does require that the highest degree of practicable care and diligence should be used that is consistent with the mode of transportation adopted. To the general views thus expressed we perceive no objection. Indeed, it is quite manifest, we think, that in fixing upon a measure of the obligation of common carriers by railway to the traveling public, it is proper to consider how far it is reasonably practicable for them to go in view of the expenditures that might be required; and, looking at the subject as a whole, we think it could never have been intended to fix upon a measure of care that would render it practically impossible to continue this mode of transportation. At the same time the standard of care and diligence for a p. rticular railroad cannot be made to depend upon its pecuniary condi |