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ed an elaborate judgment, reviewing all the authorities, English and American, and affirming the doctrine that a carrier of passengers is liable only for negligence.

For these reasons I am of opinion that the rule must be discharged.

MELLOR, J.-In this case the plaintiff being a passenger on the line of defendants railway, sustained an injury by the breaking of one of the wheel tyres of the carriage in which he was travelling, owing to a latent defect in its construction, not discoverable by the most careful examination. My brother Lush, who presided at the trial, in leaving the case to the jury, told them that a carrier of passengers for hire was bound to use the utmost care, skill, and vigilance in everything that concerned the safety of the passengers, but that if the injury was due to a hidden defect in the carriage wheel, the utmost care and skill could not discover, the defendants were not responsible. I have come to the conclusion that such direction was right, and that the rule for a new trial must be discharged.

The propriety of that direction depends upon the nature and extent of the liability which a carrier of passengers for hire undertakes with regard to each passenger.

The reponsibility both of common carriers of gcods for hire, and of common carriers of passengers for hire, notwithstanding some important differences between them, rests for its foundation upon the general custom of the realm: in other words, upon the common law, and the liability of each class of carriers, where it is not affected by some special contract, arises from a duty implied by law, although the law will raise a contract as springing from that duty: Bretherton v. Wood, 3 Brod. & Bing. 54; Andsell v. Waterhouse, 6 M. & S. 385. Until the time of Dale v. Hall, 1 Wilson, 281, it seems to have been the usual mode to declare against common carriers, either of goods or passengers, setting forth the custom of the realm, when it was supplanted by the modern mode of declaring, either in case for breach of duty, or on the contract arising out of the duty so implied by law. Coggs v. Bernard, 2 Ld Raym. 918, I Smi. Lead. Cas. 6th ed. 189, Lord Holt, in defining his fifth sort of bailment, says: " First, if it (the delivery of the goods) be to a person of the first sort (that is one that exercises a public employment)," and he is to have a reward, he is bound to answer for the goods at all events. And that is the case of the common carrier, common hoyman, master of a ship, &c." The law charges this person thus entrusted to carry goods against all events, but acts of God and the enemies of the king.

In

"For though the force be ever so great, as if an unreasonable number of people should rob him, nevertheless he is chargeable, and this is a politic establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing, else these carriers might have an opportunity of undoing all persons that had any dealings with them by combining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded

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upon in that point." And in the case of Rowley v. Horne 5 Bing. 220, Chief Justice Best, in treating upon the same subject, "When goods are delivered to a carrier, they are usually no longer under the eye of the owner, he seldom follows or sends any servant with them to the place of their destination. "If they should be lost, or injured, by the grossest negligence of the carrier, or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss; his witnesses must be the carrier's servants, and they, knowing that they could not be contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsibility of a carrier, which immediately arises out of his contract to carry for reward (namely, that of taking all reasonable care of it), the responsibility of an insurer."

This judgment is cited with approbation by Mr. Justice Story, Law of Bailments, 591, 5th ed. and, as far as I am aware, has been generally considered truly to express the reasons upon which the policy of the law, with regard to common carriers of goods, has been founded.

The liability of a common carrier of goods is therefore that of an insurer, arising out of the policy of the law which superadds such a responsibility to that springing merely out of a contract to carry for reward, viz., "the taking all reasonable care of the goods delivered to be carried."

The policy of the law with regard to common carriers of goods for hire, and the reasons assigned for it by Lord Holt and Chief Justice Best, appear to have no application to the case of carriers of passengers for hire, and hence, by one writer on the subject, it has been stated that "a stage-coach owner, who carries passenger s only, is not properly speaking a common carrier; he does not warrant the safety of passengers at all events, but only that so far as human care and foresight will go, their safe conveyance will be provided for:" Sm. Merc. Law, 7th ed.. 282. We have, however, seen that his liability, like that of the carrier of goods, arises out of the duty implied by law, and that the declaration may be either in case for the breach of such duty, or on the contract springing from it, as was said by Holroyd, J., in the case of Ansell v. Waterhouse, 5 M. & S. 385. "It seems to me, therefore, that although the law will raise a contract with a common carrier to be answerable for the careful conveyance of passengers, nevertheless he may be charged in an action upon the case for a breach of his duty." Does, then, the law in the case of a carrier of passengers for hire superadd any liability beyond that of providing for the carefel conveyance of his passengers?

In Crofts v. Waterhouse, 3 Bing. 32, which was an action against a stage coach proprietor by a passenger injured by the overset of the coach, Best, C. J., said-"This action cannot be maintained unless negligence be proved. The coachmen must have competent skill with diligence; he must be well acquainted with the road he undertakes to drive; he must be provided with steady horses; a coach and harness of sufficient strength, and properly made, and also with lights by night. If there be the least failure in

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any one of these things, the duty of the coach proprietor is not fulfilled, and they are answerable for any injury or damage that may happen; but with all these things, and when everything has been done that human prudence can suggest for the security of passengers, an accident may happen. If, having exerted proper skill and care, he from accident gets off the road, the proprietors are not answerable for what happens from his doing so." And Parke, J., in the same case, said "A carrier of goods is liable in all events except the act of God, or the King's enemies. A carrier of passengers is only liable for negligence." So, in Aston v. Heaven, 2 Esp. 533, it was contended that coach-owners were liable in all cases except where the injury happens from the act of God or the King's enemies; but Eyre, C. J., held cases of loss of goods by carriers were totally unlike the case before him. In those cases the parties are protected, but as against carriers of persons the action stands alone on the ground of negligence. In Christie v. Griggs, 2 Camp. 79, in which the accident arose from the breaking of an axle-tree, Sir James Mansfield said "If the axle-tree was sound, as far as human eye could discover, the defendant was not liable. There was a difference between a contract to carry goods and a contract to carry passengers. For the goods the carrier was answerable at all events; but he did not warrant the safety of passengers. His undertaking to them went no farther than this, that as far as human care and foresight could go, he would provide for their safe conveyance. Therefore, if the breaking down of the coach was purely accidental, the plaintiff had no remedy for the misfortune he had encountered. Thus we see that the test in case of a carrier of passengers is, has he, as far as human foresight can go, provided for their safe conveyance?" Of course this includes care and foresight in the making or procuring as well as in using the carriage. In the case of Grote v. The Chester and Holyhead Railway Company, 2, Ex. R. 255, where Sharpe v. Grey, 9 Bing. 457, to which I shall presently refer, was cited for the opinion of Alderson, B., that "a coach proprietor is liable for all the defects in his vehicle which can be seen at the time of construction, as well as for such as may exist afterwards, and be discovered on investigation," Parke, B., remarked "in that case the coach proprietor is liable for an accident which arises from an imperfection in the vehicle, although he has employed a clever and competent coach-maker." Lord Wensleydale, by that observation, merely intended to express that a coach-proprietor could not shelter himself from the consequences of using an unsafe coach by the fact that he had employed a competent coach-maker to make it, which differs materially from implying a warranty against a defect which no amount of care or skill could discover. The case of Burns v. The Cork and Bandon Railway Company, 13 Ir. Com. Law Rep. 546, comes the nearest in its facts to the present. In that case, in answer to an action for not carrying a passenger safely, it was specially pleaded in substance that whilst he was being carried in a carriage on the defendant's railway a fracture occurred in a crank pin in one of the leading wheels of the locomotive engine, which was occasioned by an original

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defect in the material and construction of such crank pin, which defect, before the fracture occurred, was not capable of being detected by the defendants upon due and proper examination or observation, and that the crank was purchased with the locomotive engine in due course of business from competent manufacturers, and was not made by them, and that before the commencement of the journey the defendaants duly examined the said engine and crank pin, and had not any notice of any defect in the same. Το this plea the petitioner demurred, and Chief Baron Pigott, in delivering the opinion of the Court, stated the question to be whether taking all the averments in the plea together, they had stated facts which had exempted them from liability for the breach of contract admitted by the plea. He then proceeds-"I am of opinion they have not, according to the existing state of authorities. Although a carrier of passengers does not warrant the safety or the due arrival of his passengers, yet I consider that he must be considered as warranting that the vehicle in which he conveys them is, at the time of commencement of the journey, free from all defects, at least as far as human care and foresight can provide, and perfectly road-worthy. He then refers to Christie v. Griggs, Sharpe v. Grey, and Grote v. Chester and Holyhead Railway Company. He proceeds as follows:-" But applying Sir Mansfield's tests, have they shown in their plea that as far as human care and foresight could go they provided for the safety of their passengers? I think they have not. Their plea does not contain any averment as to the care and skill applied to the manufacture of the engine, or as to the care and skill exercised by them in the selection of inspection of it. All the averments in their pleas are quite consistent with gross and culpable carelessness on the part of the manufacturers. If they had been 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 bought it from a competent manufacturer ? I think that would be a distinction dangerous to the public; and that as Alderson, J., says, railway companies might buy ill-constructed or unsafe vehicles, and the public be without remedy." Now, although one or two ambiguous phrases are used by the Chief Baron, in his judgment, arising out of some error in the collocation of the words, he never intended, as it appears to me to assert that there existed an implied warranty against latent defects, which no amount of skill or care could have discovered, otherwise I should have expected it to have been so expressed and have rendered further reasons unnecessary. I think that the course of the argument, and of the judgment, show that the discussion really turned upon the question of negligence and not of warranty.

The authorities to which I have referred sufficiently illustrate the distinction between carriers of goods and that of carriers of passengers. The liability of the former is that of an insurer, whilst that of the latter is only for negligence. It further appears from these cases that the negligence which renders a carrier of passengers

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liable is something which might have been avoided by the exercise of care, skill, or foresight, and that an accident which results from some cause which no amount of care, skill, or foresight could have discovered, cannot be said to be the result of negligence of the carrier. In the case of carriers by water the same distinctions hold so far as I am aware. In Lyon v. Mells, 5 East, 428, Lord Ellenborough said-In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter, or vessel ready to carry goods for hire, and the person putting goods on board, or employing his vessel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman, implied by law, that his vessel is tight, and fit for the purpose or employment, for which he offers and holds it forth to the public; it is the very foundation and immediate substratum of the contract that it is so. The law presumes a promise to that effect without actual proof, and every reason of sound policy and public convenience requires it should be so (5 East 437.) To the same effect there are many authorities, which it is not necessary to cite. If it be said that it is a strange thing that a warranty of sea-worthiness should be implied by law in the case of goods and not passengers, I can only answer that in case of goods the warranty of sea-worthiness is incidental to the liability of the carrier as an

insurer.

In Coggs v. Barnard, Lord Holt makes no distinction in this respect between carriers by land and carriers by water, and many of the reasons stated by him and Chief Justice Best to be the foundation of the liability of the carrier of goods by land, apply with equal force to the carrier of goods by water, and certainly in no case, so far as I am aware, has there been a suggestion that the foundation of the liability of a carrier of passengers by water depends upon other considerations than those which regulate the liability of carriers of passengers by land.

In the present case, the direction of my brother Lush to the jury appears to me to have been unexceptionable, and in strict conformity with the cases above referred to. The fracture of the wheel-tire by itself, and unexplained, might have been sufficient to raise a presumption of negligence against the defendants: Skinner v. The London and Brighton Railway Company, 5 Exch. 787; Carpue v. The London and Brighton Railway Company, 5 Q. B. 747; Bird v. The Great Northern Railway Company, 28 L. J. Ex. 3. But upon the direction of my brother Lush, when the explanatory evidence had been given, it must be taken to have been in fact found by the jury that the breaking of the wheel-tire was due to a hidden defect which no amount of care or skill could have discovered either in the manufacture, purchase, or use.

I was at one time in doubt whether the principles applied and explained in the case of Brown v. Edgington, 2 M. & G. 279, said by Parke, B., in Sutton v. Temple, 12 M. & W. 64, "to be well settled law," did not govern this case; but I am now satisfied that they do not. In that case, although the "scienter or guilty knowledge," as it was termed, was negatived by the jury, there was nothing to prove that the insufficiency of the rope might not have been discovered upon a care

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ful examination, and I can find nothing to show that the doctrine now contended for was in the minds of the judges who decided it. If the liability of a carrier of passengers for hire springs, from the custom of the realm, or from an actual contract made, why are we to imply a warranty as to the absolute sufficiency of the carriage, when we do not imply any such warranty with regard to the other incident of the journey. It would appear to be quite as reasonable to imply a warranty against accidents as against a hidden defect which no amount of skill or care could discover. I think that it would be extremely dangerous, and somewhat inconsistent, to extend the doctrine of implied warranty beyond the possible means of the alleged warrantor to guard against the defects to which his warranty is supposed to extend.

The cases cited in support of the plaintiffs' right to recover, do not, I think, when examined, go the length attributed to them, and they are neither so consistent nor precise as to conclude us from exercising our own judgment upon the facts before us; and notwithstanding some expressions attributed to Lord Ellenborough and Chief Justice Best, I cannot but think that those learned- judges had not present in their minds the idea that there existed in the case of carriers of passengers, any absolute warranty of roadworthiness.

In Israel v. Clark, 4 Esp. 259, where the injury arose from the breaking of an axle-tree, the expressions used by Lord Ellenborough are very wide-viz, that "he should expect a clear land-worthiness in the carriage itself to be established;" still it is by no means certain that he had in view a case of latent defect, which no skill or care could discover. No opinion was expressed showing whether he considered that the cause of action rested upon negligence or the doctrine of implied warranty.

In Bremmer v. Williams, 1 C. & P. 416, Chief Justice Best is reported to have said that "every coach proprietor warrants that his stage-coach is equal to the journey it undertakes ;" and "it is his duty to examine it previous to the commencement of every journey." The latter words show to what matters be supposed the warranty to extend, and I think that it is only fair, considering the opinions already cited from other cases in which, with more consideration, he had treated this subject, to assume that he did not refer to latent defects which could not be discovered on examination.

The decision which was next discussed before us is the case of Sharpe v. Grey, 9 Bing. 457, but I am bound to say that although the opinions expressed by Justices Gazelee and Bosanquet in that case, are apparently in antagonism to the direction given by my brother Lush, it is not very easy to see that the judges who decided it had in their minds a case of latent defect not discoverable by any amount of care or skill, or that they were unanimous in laying down any clear or precise rule of law which ought to govern us in this case; and it is to be observed that the Chief Justice Tindal left the case to the jury as a question of fact, although in somewhat loose and general terms-viz., "whether there had been on the part of the defendant that degree

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of vigilance which was required by his engagement to carry the plaintiff safely," and Parke, B., is reported to have said it was a question of fact for the jury, and Alderson, Bt, limits the extent of any implied warranty against defects to those "which could be seen at the time of construction;" he adds, "and if the defendant were not responsible the coach proprietor might buy ill-constructed or unsafe vehicles, and his passengers be without remedy.

There are several modern cases not referred to in the argument, but which show that the judges who tried them considered the action against carriers of passengers for hire to be founded in negligence. In Stokes v. The Eastern Counties Railway Company, 2 F. & F. 732, Chief Justice Cockburn thus expressed himself, "You are entitled to expect at the hands of a railway company, all that skill, care, and prudence can do to protect the public against danger and accidents, but you must carry that principle into application as reasonable men. If you are of opinion that the flaw or crack had become unsafe prior to the accident, that upon careful examination, not with the aid of highly scientific authorities and scientific instruments, but on an ordinary, reasonable, proper, and careful examination, such as all feel ought to be made before the engines are used on which the safety of a whole train may depend, this flaw might have been discovered, and that either the examination did not take place, or if it did, and the flaw was discovered, but the man with careless disregard of his own safety and the safety of others whose lives and limbs might be involved, treated all this with supine and reckless indifference, then, undoubtedly, there is negligence established for which the company are, and ought to be, responsible." That case is important because the verdict was for the defendant, if the doctrine now contended for by the petitioner be the correct exposition of the law, the verdict in that case, if questioned, must have been set aside.

Again, in Ford v. South-Western Railway Co., 2 F. & F. 732, Chief Justice Erle, on summing up the case to the jury, said "The action is founded on negligence. The railway company is bound to take reasonable care, care, to use the best precautions in known practical use for securing the safety and convenience of their passengers; also in Pym v. Great Northern Railway Company, ibid 621, per Cockburn, C. J., to same effect. In this state of the authorities in our own Courts and in Ireland we are much assisted in arriving at a conclusion by several cases decided in the Courts of the United States, cited in a note to the 7th ed. of Story on Bailments, 565. In Ingalls v. Bills, 9 Metc. R. 15, the late Mr. Justice Hubbard, in a very able judgment, in which the English and American authorities are reviewed, states it to be the conclusion of the Court" that carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient, and suitable coaches, harnesses, horses, and coachmen, in order to prevent those injuries which human care and foresight can guard against, and if an accident happens from a defect in the coach, which might have been discovered and remedied upon the most careful and thorough examination of it, such accident must be ascribed to negli

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gence, for which the owner is liable, in case of injury to a passenger, happening by reason of such accident. On the other hand, where the accident arises from a hidden and internal defect, which a thorough and careful examination would not disclose, and which could not be guarded against by the exercise of a sound judgment and the most vigilent foresight, then the proprietor is not liable for the injury; but the misfortune must be borne by the sufferer as one of that class of injuries for which the law gives no redress in the form of pecuniary recompense."

This extract from the judgment of Mr. Justice Hubbard, in my opinion, truly expresses the rule of law applicable to the present case, and is in strict conformity with my brother Lush's direction to the jury, and were it not for the opinion of my brother Blackburn to the contrary, I should have considered that it was supported by the weight of English authority. As the majority of the Court are in favour of the defendant, and think my brother Lush's direction right, the rule obtained by the plaintiff will be discharged.

BLACKBURN, J.-This was an action brought by a passenger on the defendants railway to recover damages for an injury he had received owing to the breaking down of the carriage in which he was travelling.

On the trial before my brother Lush it appeared that the carriage was one belonging to the London and North-Western Railway Company, which had been for some time in use by them, and had come into the possession of the defendants in the ordinary course of traffic, and was according to the ordinary arrangements between the different railway companies used by the defendants till they could return it.

Evidence was given that when the carriage was put into the train by the defendants it was to all outward appearance reasonably sufficient for the journey; the tire of the wheel being of proper thickness and apparently of sufficient strength, but that in fact there had been an air-bubble in the welding which rendered the tire much weaker than it appeared, so that in fact it was not reasonably fit for the journey, and that the breaking of this tire occasioned the accident. Evidence was given that this defect was one which could not be detected by inspection, nor by any of the usual tests, as it would ring to the hammer as if perfectly welded, and that there was no neglect on the part of the defendants or their servants, who took every reasonable precaution in examining the carringe.

My brother Lush left the case to the jury, telling them that if the accident was occasioned by any neglect on the part of the defendants they should find for the plaintiff; but that if it was occasioned by a latent defect in the wheel, such that no care or skill on the part of the defendants could detect it, the verdict should be for the defendants, and it is not disputed that if the direction was right their verdict was justified by the evidence. A rule nisi was obtained for a new trial on the ground of misdirection, as it was contended that the defendants, as carriers of passengers, were bound at their peril to supply a carriage that really was reasonably fit for the journey, and that it was not enough that they made every reasonable effort to secure that it was so; in other words, that the obligation of

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the carrier to the passenger was equivalent to a warranty of the reasonable sufficiency of the vehicle he supplied.

Cause was shown in the sittings after Trinity Term, before my brothers Mellor, Lush, and myself, when the Court took time to consider.

This is a question of very great nicety and importance, but after some consideration and doubt I have come to the conclusion that on the balance of English authority, and I think upon the whole, on principle and the analogy to other cases, there is a duty on the carrier to this extent, that he is bound at his peril to supply a vehicle in fact reasonably sufficient for the purpose, and is responsible for the consequences of bis failure to do so, though ocesioned by a latent defect, and therefore that the evidence was wrong and that there should be a new trial.

I have come to this conclusion with much doubt and hesitation; and as my two brothers are of a different opinion, I need not say that I am very far from being confident that I am not wrong; but still I think it best to state the reasons why

I differ from them.

I quite agree that the carrier of passengers is not like the carrier of goods, an insurer who undertakes to carry safely at all events, unless prevented by excepted perils; the carrier has not the control of the human beings whom he carries to the same extent as he has the control of goods, and therefore it would be unjust to impose on him the responsibility for their safe conveyance. In order, therefore, to render the carrier of passengers liable for an accident, it is Lecessary to allege and prove that the accident arose from some neglect of duty on the carrier's part. But if the obligation on the part of the carrier to provide a vehicle reasonably fit for the journey is absolute, a failure on his part to fulfil that obligation is quite enough to make him liable for all the consequences. And I own I see nothing to diminish the obligation to provide a reasonably safe vehicle in the fact that it is to be provided for the safety of life and limb, and not merely of property. The carrier supplies and selects the carriage for the purpose of carrying the passenger, who is obliged to trust entirely to the carrier, the passenger having no means of examining the carriage and no voice in the selection of it. Now it has been decided that one who contracts to supply articles for a particular purpose, does implicitly warrant that the articles he supplies are fit for that purpose: Brown v. Edgington, 2 M. & G. 279. The principle of that case, as I understand it, is that expressed by Maule, J., who says that the defendant having accepted an order for a rope for a particular purpose, which rope he was to select and procure, did undertake to furnish one for that purpose, and was therefore liable as on a breach of his contract, if he furnished one unfit for the purpose, though that unfitness arose from a latent defect, and this principle would seem to apply to the carrier of passengers who supplies a vehicle. On the same principle I think it is that a ship-owner warrants to the person who ships goods that his vessel is seaworthy. Lord Tenterden, in Abbot on Shipping (5th Ed. p. 218, 6th Ed. by Shee, p. 295), states the law thus:-" The first duty is to provide a vessel tight and staunch, and furnished with all

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tackle and apparel necessary for the intended voyage. For if the merchant suffer loss or damage by reason of any insufficiency of these particulars at the outset of the voyage, he will be entitled to a recompense. An insufficiency in the furniture of the ship cannot easily be known to the master or owners; but in the hold of the vessel there may be latent defects unknown to both. The French ordinance directs that if the merchant can prove that the vessel at the time of sailing was incapable of performing the voyage, the master shall lose his freight, and pay the merchant his damage and interest. Valin, in his commentaries on this article, cites an observation of Weytsen, "That the punishment in this case ought not to be thought too severe, because the master by the nature of this contract of affreightment is necessarily held to warrant that the ship is good, and perfectly in a condition to perform the voyage in question under the penalty of all expenses, damages, and interest." And he himself adds " That this is so, although before its departure the ship may have been visited according to the practice in France, and reported sufficient because on this visit the exterior parts only of the vessel are surveyed, so that secret faults cannot be discovered, for which, by consequence, the owner or master remains always responsible, and this the more justly, because he cannot be ignorant of the bad state of the ship; but even if he be ignorant he must still answer, being necessarily bound to furnish a ship good and capable of the voyage." Lord Tenterden then notices the opinion of Pothier, that in such a case the owner shall not be answerable for damages occasioned by a defect which they did not nor could know, though he agreed that they shall lose their freight; and Lord Tenterden observes in a note that this opinion of Pothier is not quite consistent with his own principles laid down in the Traits de Louage. However this may be in the old French law, or the civil law, it is, I think, clear that according to English law, either there is a breach of warranty, in which case the owner is responsible for all the consequences, or there is not, in which case there is no ground for depriving him of his freight. And I think that there is ample authority (in addition to what I have cited from Abbott on Shipping) for saying that by English law such a warranty is implied where the carriage is by water.

In Lyons v. Mells, 5 East. 428, Lord Ellenborough, in delivering the considered judgment of the Court, says: "In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vessel, ready to carry goods for hire, and the person putting goods on board, or employing his vessel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman, and implied by law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public; it is the very foundation and immediate substratum of the contract that it is so. The law presumes a promise to that effect of the carrier without any actual proof; and every reason of sound policy and public convenience requires that it should be so. The declaration here states such a promise to have been made by the defendant, and it