§ 3. Duty of Passenger Carrier not Necessarily in Contract but Collateral. The duty of common carriers, with respect to the transportation of persons or property, is a duty independent of contract, arising from public policy by implication of law from the fact that persons or property are received in the course of the business of such employments.' Nor do the obligations and liabilities of a common carrier depend upon statute.' It is not necessary that there should be any contract to support an action against a carrier for negligently carrying a passenger; but it is sufficient if the passenger be lawfully there for the purpose of being carried.' In Ansell v. Waterhouse, 6 Maule & S. 385, which was an action against a coach proprietor for injuries sustained by a passenger by reason of the coach being overturned through the negligence of defendant's servants, Holyroyd, J. says: "This action is founded on that which is collateral to a contract; for the terms of the contract with the carrier (provided that they do not vary his general responsibility) are quite immaterial. So in Bretherton v. Wood, 3 Brod. & B. 62, Dallas, Ch. J., in delivering the judgment of the court of errors, says: "This action is on the case of a common carrier upon whom the duty is imposed by the custom of the realm, or in other words, by the common law, to carry their goods or passengers safely and securely, so that, by their negligence or default, no injury or damage happen. A breach of this duty is a breach of the law, and for this breach action lies, founded on the common law, which action wants not the aid of a duty to support it." Many English cases support the proposition that an action will lie against a car1Delaware, L. & W. R. Co. v. Trautwein, 7 L. R. A. 435, 52 N. J. L. 169; Marshall v. York, N. & B. R. Co. 11 C. B. 655; Martin v. Great Indian Peninsula R. Co. L. R. 3 Exch. 9; Gladwell v. Steggall, 5 Bing. N. C. 733; Pippin v. Sheppard, 11 Price, 400; Carroll v. Staten Island R. Co. 58 N. Y. 126; Austin v. Great Western R. Co. L. R. 2 Q. B. 422; Foulkes v. Metropolitan Dist. R. Co. L. R. 5 C. P. Div. 157; Eaton v. Boston & L. R. Co. 11 Allen, 500; Union Pac. R. Co. v. Nichols, 8 Kan. 505; New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660; McElroy v. Nashua & L. R. Corp. 4 Cush. 400. Hannibal & St. J. R. Co. v. Swift, 79 U. S. 12 Wall. 262, 20 L. ed. 423; rier for the breach of his duty as a common carrier and that such duty is collateral to and independent of the contract.' In Marshall v. York, N. & B. R. Co., where the master took a ticket for his servant, Jervis, Ch. J., inquired: "Upon what principle does the action lie at the suit of the servant? For his personal suffering? Not by reason of any contract between him and the company, but by reason of the duty implied by law to carry him safely." And it was said by Williams, J., that it was not an action of contract but an action of tort against the company as to carriers; the servant being lawfully within the carriage, the question of whether he himself negotiated the contract or paid the fare, seems to have been unimportant.' 'Marshall v. York, N. & B. R. Co. 11 Q. B. C. P. N. S. 34; Pozzi v. Shipton, 8 Ad. & L. 963, 8 L. J. Q. B. N. S. 1: Pippin v. Sheppard, 11 Price, 400; Collett v. London & N. W. R. Co. 16 Q. B. 984, 20 L. J. Q. B. N. S. 411; Gladwell v. Steggall, 5 Bing. N. C. 733. 8 L. J. C. P. N. S. 361; Dixson v. Bell, 5 Maule & S. 198; Mytton v. Midland R. Co. 4 Hurlst. & N. 615, 28 L. J. Exch. N. S. 385; Coxon v. Great Western R. Co. 5 Hurlst. & N. 274, 29 L. J. Exch. N. S. 165; Great Western R. Co. v. Blake, 7 Hurst. & N. 987, 31 L. J. Exch. N. S. 346; Alton v. Midland R. Co. 34 L. J. N. 8. C. P. 292. Marshall v. York, N. & B. R. Co. 11 C. B. 655; Austin v. Great Western R. Co. L. R. 2 Q. B. 442, 36 L. J. Q. B. N. S. 201. See O'Donnell v. Allegheny Valley R. Co. 59 Pa. 239; New York, L. E. & W. R. Co. v. Burns, 51 N. J. L. 340. CHAPTER II. LAW OF THE STAGE COACH. § 4. Duty of Stage Coach Proprietor. a. Origin of the Railway Car. b. Responsibility for Safe Coach, Horses and Driver. c. Liability of Carrier of Goods and of Passengers Compared. § 5. Presumption of Negligence from Injury to Passenger. a. Rebutting Presumption of Neglect of Duty. § 6. Duty to Provide Safe Coach is not Absolute. 84. Duty of Stage Coach Proprietor. The stage coach is one of the ancient methods of passenger transportation, which has survived modern improvement and invention, carrying into the present the common law rule it developed, governing the carriage of passengers. 66 In definition, a car" or "coach" or "stage" or a "stage coach" is the same. They are vehicles that run by the turning of the wheels. Place boards over the wheels or the axles of the wheels, and we have a platform car adapted to freight; place benches or chairs on the platform and we still have a car, but adapted to convey passengers, and then easily termed a carriage. Instead of benches or chairs, put on the platform the body of a "stage coach," and we have such a "railroad car" as served at the inauguration of the earliest railroads in this country, and still serves in Europe. It is plain that by adaptation and improvement the modern railway car has been evolved from the old fashioned "stage coach." In common language a railroad carriage designed for passengers is called indifferently a "car" or "coach." In every collection of words arranged according to the ideas which they express, these, and others with them, will be found classed together as having the same signification. Neither the word 'The American Railway, 231. "coach 99 nor "stage" or "car" can be said to be words of art, or to have any legal or fixed meaning distinguishing one from the other, or any one of them from several other terms implying a vehicle or conveyance. We must therefore look at the context, and the circumstances under which the terms are used, and especially at the matter which the parties using the expressions had in contemplation.' b. Responsibility for Safe Coach, Horses and Driver. The duties of the proprietor of a stage coach were long ago well defined and fixed. He was, among other things, to provide a conveyance, reasonably convenient, substantial and thoroughly equipped, and drawn by safe, well trained horses, with secure harness, and a skillful, intelligent, faithful and competent driver. In 1825, in Crofts v. Waterhouse, 3 Bing. 321, Best, Ch. J., said: "The coachman must have competent skill, and use that 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 any of these things, the duty of the coach proprietors is not fulfilled and they will be answerable for any injury or damage that happens." A livery stable keeper is bound to supply carriages as safe as care and skill can render them. While not an insurer against all defects, his liability extends to such as might be guarded against by care and skill. This liability includes the securing of qualified drivers, safe horses and harness.* The duty is imposed upon the manager of a stage coach to make frequent and careful examination to detect any original imperfection or subsequent defect or breakage in the coach or its New York v. Third Ave. R. Co. 117 N. Y. 404. 'Aston v. Heaven, 2 Esp. 533; Crofts v. Waterhouse, 3 Bing. 321; Cristie v. Griggs, 2 Campb. 80; Ware v. Gay, 11 Pick. 106, 112; Sharp v. Grey, 9 Bing. 457; Israel v. Clark, 4 Esp. 259; Brenner v. Williams, 1 Car. & P. 414; Jackson v. Tollett, 2 Stark. 37; Camden & A. R. & Transp. Co. v. Burke, 13 Wend. 611, 626, 629; Lyon v. Mells, 5 East, 428. Hyman v. Nye, L. R. 6 Q B. Div. 685; Kennon v. Gilmer, 5 Mont. 257; Frink v. Coe, 4 G. Greene, 555; Derwort v. Loomer, 21 Conn. 245. Sayles v. Western Stage Coach Co. 4 Iowa, 547, and authorities cited in section 4; Hyman v. Nye, L. R. 6 Q. B. Div. 685; Kennon v. Gilmer, 5 Mont. 257; Frink v. Coe, 4 G. Greene, 555; Derwort v. Loomer, 21 Conn. 245; Tuller v. Talbot, 23 Ill. 357. equipment. If there be an imperfection in the original construction-as for an example, in an axletree-although the defect be out of sight and not discoverable upon a mere casual inspection, yet if the defect might be ascertained by a more minute examination, and any injury occur to a passenger by reason of the defect the proprietor will be answerable therefor.' The same rule applies to any other latent defects, which such close inspection might disclose, and which render the coach or any part of its equipment not roadworthy and from which a passenger suffers an injury'. c. Liability of Carrier of Goods and of Passengers Compared. The liabilities of such carriers naturally flow from the duties imposed. They are not like common carriers of goods, insurers against all injuries, except the act of God,' or by public enemies." It is not their imposed duty absolutely to 'convey safely, yet their liability goes to the extent that they and their agents and employés possess competent skill and that they will use all due care and diligence in the performance of their duty, being already supplied with every requisite to insure the safety of their passen. gers. As the safety of the lives and limbs of human beings are committed to their care, and it is necessary that the passengers should in a great degree submit themselves to the control and supervision of their en.ployés, and trust to their faithfulness and skill, omitting that personal watchfulness and self-care, which 1Ingalls v. Bills, 9 Met. 1; Sharp v. Grey, 9 Bing. 457. Whit Story, Bailm. §§ 592, 601 a; Farish v. Reigle, 11 Gratt. 711; Treadwell v. tier, 5 L. R A. 498, 80 Cal. 574; Ingalls v. Bills, 9 Met. 1; McElroy v. Nashua & L. R. Corp. 4 Cush. 400; Edwards v. Lord, 49 Me. 279; Derwart V. Loomer, 21 Conn. 253; Fuller v. Naugatuck R. Co. 21 Conn. 557, 576; Hadley v. Cross, 34 Vt. 586; Hegeman v. Western R. Corp. 16 Barb. 353, 13 N. Y. 9. 'Gillespie v. St. Louis, K. C. & N. R. Co. 6 Mo. App. 554; Chicago, B. & Q. R Co. v. Manning, 23 Neb. 552; Gleeson v. Virginia, M. R. Co. 5 Mackey (D. C.) 356; International & G. N. R. Co. v. Halloren, 53 Tex. 46; Strouss v. Wabash, St. L. & P. R. Co. 17 Fed. Rep. 209; Walpole v. Bridges, 5 Blackf. 222; Trent & M. Nav. Proprs. v. Wood, 4 Dougl. 287, 290; Slater v. South Carolina R. Co. 29 S. C. 96; Friend v. Woods, 6 Gratt. 189, 196. Holladay v. Kennard, 79 U. S. 12 Wall. 254, 20 L. ed. 390; Gage v. Tirrell, 91 Mass. 299; Hubbard v. Harnden Erp. Co. 10 R. I. 244; The Protector, 79 U. S. 12 Wall. 700, 20 L. ed. 463. 'Chicago & A. R. Co. v. Pillsbury, 11 West. Rep. 762, 123 Ill. 9. |