Hegeman v. . the Western Railroad Corporation

Gardiner, C. J. It has been said that every wayfarer must take the risks incident to the mode of travel he adopts ;• but these risks are only, those which cannot be avoided by the carrier of passengers by the utmost degree of care and skill in the preparation and management of the means of conveyance. (Angel on Com. Carr., § 523.) . The carrier,, in the language of,other judges, is bound to use all precautions, as far as human care and foresight will go, for the safety of his passengers. (2 Kent, 602, 7th ed., and cases cited.) In the application of these principles, it is obvious that the . same precautions, will not exonerate the carrier of passengérs from responsibility .in every mode of travel. The foresight and preparation that would suffice to satisfy the rule in one species of navigation or conveyance, would not answer in another; and the external examination, which, in connection with the reputation of the builder of a stage coach, would and ought to satisfy the scruples of the most cautious person, as to the safety and security of a vehicle designed to run from six to eight miles the hour, would not satisfy any reasonable man as to the sufficiency of another in tended to sustain a far greater weight, and to be propelled by steam thirty, forty or fifty miles in the same time. The charge of the learned judge, at the trial, assumes and proceeds upon this distinction throughout ;■ and in that part of it where he gives the measure of the responsibility of the defendant, in the strongest terms against him, and in favor of the plaintiff, he says, “ that although the defendant purchased his axles and cars of extensive and skillful manufacturers, who, in the exercise of their skill, knew of no test, and used no test to *25 discover latent defects in axles, yet, if there were any tests known to others, and which should have been known and employed by the manufacturers, as men professing skill in their particular business, although the same may not have been used by some others engaged in the same business, defendant was guilty of negligence in not using this test, provided the injury occurred to the plaintiff by reason of a defect, which, by such test, might have been discovered. The substance of the charge was, that although the defect was latent, and could not be discovered by the most vigilant external examination, yet, if it could be ascertained by a known test, applied either by the manufacturer or the defendant, the latter was responsible. In these instructions, there was no error. Ingalls v. Bills (9 Metcalf, 1), cited by the defendant’s counsel, was the case of a stage coach, in which the injury was occasioned by the breaking of the axle; the fracture was internal, and sur-, rounded by sound iron, one-quarter of an inch thick; the court held, that where the accident arises from a hidden and internal defect, and which could not be guarded against by the exercise of a sound judgment, and the most vigilant oversight, then the proprietor was not liable for the injury. I concur in that decision, in the particular case presented ; but the learned judge did not intimate " that a sound judgment and the most vigilant oversight” would be evidenced, by the adoption of the same methods of examination in the case of a stage coach and a car for the express train of a railroad. The mode of construction, the purposes to be subserved, and above all, the probable consequences of a hidden defect in the two cases,.are altogether different. It might as plausibly be urged, that a chain for agricultural purposes and the cable of a ship of the line should be subjected to the same tests, because both -were chains and each manufactured of the same material. Keeping the distinction indicated in view, the charge was sufficiently favorable to the defendant. *26 Two questions were presented for the consideration of the jury. First, was there a test known to and used by others, and which should have been known to a skillful manufacturer, by which the concealed defect in the axle of the car could have béen detected; and if so, then, secondly, o was the injury to the plaintiff the consequence of that imperfection ? There was evidence tending to establish these facts, which the jury have found.; and the question returns, can the defendant, who'neither applied the test, or caused it to be applied by the manufacturer, insist that this accident could “ not have been avoided by the utmost degree of care and skill, in the preparation of the means of conveyance,” or “ that they used all precautions, as far as human care and foresight would go, for the safety of the plaintiff, as one of their passengers ?” It seems to me that there caii be but one answer to the question. It was said that carriers of passengers are not insurers. This is true. That they were not required to become smelters of iron, or manufacturers of cars, in the prosecution of their business. • This also must be conceded. What the law does require is, that they shall furnish a sufficient car to secure the safety' of their passengers, by the exercise of the “ utmost care and skill in its preparation.” They may construct it themselves, or avail themselves of the services of others; but in either case, they engage that all that well directed skill can do has-been done for the accomplishment of this object. A good reputation upon the part of the builder is very well in itself, but ought not to be accepted by the public, or the law, as a substitute for a good vehicle. What is demanded, and what is undertaken by the corporation, is not merely that the manufacturer had the -requisite capacity, but .that it was skillfully exercised in the particular instance. If to this extent they are not responsible, there is no security for individuals or the public. • It is perfectly understood that latent defects may exisi undiscoverable by the most vigilant examination, when the *27 fabric is completed, from which the most serious accidents have and may occur. It is also well known, as the evidence in this suit tended to prove, and the jury have found, that a simple test (that of bending the iron after the axle was formed and before it was connected with the wheel), existed, by which it could be detected. This should have been known and applied by men “ professing skill in that particular business.” It was not known, or if known, was not applied by these manufacturers. It was not used by the defendant, nor did they inquire whether it had been used by the builders. They relied upon an external examination, which they were bound to kno.w would not, however faithfully prosecuted, guard their passengers against the danger arising from concealed defects in the iron of the axles, or in the manufacture of them. For this omission of duty, or want of skill, the learned j udge held, and I think correctly, that they were liable. This is the only important question in the cause. The requests of the defendant’s counsel to the judge for instructions to the jury, were intended to present this principle point in its strongest aspect for the defendant; and all the exceptions are determined, if the above suggestions are well founded. The evidence of the utility and use of the safety beam was properly admitted. It had been used in New Jersey eleven years before this accident, and upon some of the Albany and Buffalo roads, from the latter part of the year 1846 ; and in 1851 was introduced upon the road of the defendant. Whether the adoption of this improvement, under all the circumstances, was a necessary or proper precaution on the part of the defendant, was correctly submitted to the jury. The judgment of the supreme court should be affirmed. Johnson, Hand, Crippen and Dean, JJ., concurred in the foregoing opinion. Footnotes [1] And see Alden v. New York Central Railroad Co., 26 N. Y. 102. Caldwell v. New Jersey Steamboat Co., 47 Ibid. 282. But a carrier of passengers is not liable for an accident resulting from a defect not discoverable by human prudence and caution. Crogan v. New York and Harlem Railroad Co., 18 Alb. L. J. 70. Redhead v. Midland Railway Co., 8 Best & Smith 371 ; s. o. 9 Ibid. 519. Nor for the fracture of a rail from extreme cold. McPadden v. New York Central Railroad Co., 44 N. Y. 478.