breaking of rails at the same place, within a few hours, both to indicate the condition of the track and roadway at that point, and that the defendant had, or proper inspection would have given it, notice of any probable defect.' If the break in a railroad rail is a sudden fracture brought about by cold weather, and was not contributed to by defects in the track, the company is not liable, provided the rail was such as a person of competent skill might reasonably presume, upon inspection, to be free from liability to fracture. And under such evidence the plaintiff should be nonsuited. But what is or is not negligence in a particular case is generally a question of fact for the jury. If there is no doubt of the existence of the facts complained of, yet if there be substantial doubts as to the reasonable and natural inferences to be drawn from those facts, they should be submitted to the jury. But a railroad company is liable for an injury to a passenger resulting from a derailment of cars occasioned by the giving way of rotten and unsafe ties in the roadbed, where the defect could have been discovered by a proper discharge of the duty of inspection, in time to avert the accident." In each case the question is one of fact for the jury, and not to be measured by any rule of law applied by the court. The degree of care, under the circumstances, imposed upon the carrier being stated to the jury by the court, the question of fact, although somewhat speculative in the sense that it is not measured by any definite rule, must nevertheless become a matter of judgment, to be expressed by the jury, resting upon the evidence.' Where the injury to a passenger was caused solely by the breaking of the spindle" of the "drawhead" of the forward train, while running at speed, drawing the bell rope through as a result, and it would have been impossible for the railroad company to have dis 'Cleveland, C. C. & I. R. Co. v. Newell, 1 West. Rep. 890, 104 Ind. 264. Missouri Pac. R. Co. v. Johnson, 72 Tex. 95. Mc Padden v. New York Cent. R. Co. 44 N. Y. 478; Tyrrell v. Eastern R. Co. 111 Mass. 546. 4Fritsch v. Allegheny, 91 Pa. 226; Neslie v. Second & Third Sts. Pass. R. Co. 4 Cent. Rep. 700, 113 Pa. 300. 'McKee v. Bidwell, 74 Pa. 218; Crissey v. Hestonville, M. & F. Pass. R. Co. 75 Pa. 83. Furnish v. Missouri Pac. R. Co. 102 Mo. 438; Rutherford v. Shreveport & H. covered the defect in the spindle except by moving the car into the shop, and taking apart the machinery forming the draw-bar, and thus permitting the exposure of the spindle, and testing by hammer, and such inspection had not been made for two years, the court charged the jury, that the railroad company, being a carrier of passengers, was bound to use the highest degree of care that was practicable and reasonable under the circumstances, and left it to the jury to say, under this rule, what inspection of the draw-bar should have been made under the circumstances developed.' In a more recent case' plaintiff was injured by an explosion of the boiler upon defendants steam ferry-boat. A month previous to the accident the boiler had been tested under the law of Congress enacted in that behalf, with a hydrostatic pressure of thirtyfour pounds to the inch, and a certificate was thereupon given by the government inspectors allowing the use of twenty-five pounds of steam pressure to the inch. The boiler being about nine years old, required, on that account, greater care and caution in the management of the steam; and the defendant, it was found by the referee, did not exercise the care it was bound to exercise, in allowing a pressure of steam in the excess of the amount justified by the previous test and certificate. He further found that the immediate causes of the explosion were a pressure of steam of not less than twenty-seven pounds to the square inch and a weakness of the boiler caused by a longitudinal crack or cracks, which extended nearly through from the inside to the outside of the iron plate or shell. He also found that the existence of the crack in the boiler could not have been discovered by the exercise of the highest skill, foresight or care, or by any test known or practices by experts in the business of making, maintaining, or managing steam boilers; and as a conclusion he found that the defendant was responsible for the defect and weakness of the steam boiler and for the want of due care, as set forth in his findings of fact. In regard to the carriers liability under this finding, the court said that if the sole cause of the explosion was the defect in the boiler, disconnected with any negligence or violation 1Palmer v. Delaware & H. Canal Co. 46 Hun, 486. 'Carroll v. Staten Island R. Co. 58 N. Y. 126. of law, in the management of the steam, the defendants would not be liable. Carriers of passengers are not insurers of the safety of persons whom they carry; nor do they undertake that the vessels or vehicles which they use, or that the machinery they employ, are absolutely free from defects. They are held to the exercise of the utmost skill and care in the construction and management of both; and when they undertake to carry by the dangerous agency of steam, and injury is occasioned to passengers thereby, they cannot escape liability, unless it appears that the accident happened from causes beyond their control, and to which neither the negligence of the carrier or the manufacturer of the machinery, or those employed to manage it, contributed. That a carrier of passengers is not an insurer of their safety has been explicitly held,' and has since been settled doctrine of the law. Notice is taken in the opinion of the remarks adverse to this view, made by the judge who pronounced the opinion in Alden v. New York C. R. Co. 26 N. Y. 102, but, it is said, that the subsequent cases show that it was not the intention of the court to depart from the established doctrine upon the subject." It was accordingly stated as the law of the case in judgment that if the crack in the boiler was, as the referee found, undiscoverable upon examination, or by the application of any tests known or practiced, and if no presumption that the boiler was defective was created by the fact that it had been used for several years, then the fact that the defect existed, without which the explosion would not have happened, would not alone have justified a recovery. 1Christie v. Griggs, 2 Campb. 79. McFadden v, New York Cent. R. Co. 44 N. Y. 478; Caldwell v. New Jersey 8. B. Co. 47 N. Y. 290; Readhead v. Midland R. Co. L. R. 2 Q. B. 312, L. R. 4 Q. B. 379. CHAPTER V. DANGERS, ACCIDENTS AND PRECAUTIONS. § 20. Carrier must Anticipate Storms and their Consequences. § 21. Is not an Insurer, nor Responsible for Accidents. § 22. What are Properly Called Accidents. 23. Duty to Investigate to Determine the Cause of Accidents. § 24. Care in Selection of Operative Employés-Human Fallibility. $25. Instances of Accidents from Human Fallibility. $26. Theory as to Loss of Power of Observation. § 27. Precautions against Human Fallibility-Automatic SignalsBlock System. § 28. Tests Applied to Metal. $29. Truss Bridges Replaced by Girders-Vestibuling Trains. § 30. Danger in Hauling Cars from Other Roads-Speed. $20. Carrier must Anticipate Storms and their Consequences. In Grote v. Chester & H. R. Co. 2 Exch. 251, the action was by a passenger against a railroad company for damages resulting from the breaking down of a bridge whilst the train was passing over it, and it was held that, while it was a question for the jury whether the defendant had engaged competent engineers who had adopted the best methods and used the best materials in the construction of the bridge, the mere fact of its having engaged such persons would not relieve it from the consequences of an accident. arising from deficiencies in the work. A carrier cannot be relieved from the consequences to a passenger of the washing away of an embankment, on the ground that it was constructed by a competent engineer, where the provision for drainage at the point in question was defective; although the immediate result was produced by a sudden and unexpected storm.' Where the accident was caused by a land slide in a cut some fifteen or twenty feet deep and the defendant gave evidence Philadelphia & R. R. Co. v. Anderson, 94 Pa. 351. tending to prove that rain had fallen on the afternoon of Friday and on the Saturday morning previous; and the claim is that the slide was produced by the loosening of the earth by the rain, this was held such an ordinary occurrence as is not embraced by the technical phrase "an act of God." There was no evidence that the rain was of extraordinary character, or that any extraordinary results followed it. It was a common, natural event; such as not only might have been foreseen as probable, but also must have been foreknown as certain to come. Against such an event it was the duty of the company to have guarded. Extraordinary floods, storms of unusual violence, sudden tempests, severe frosts, great droughts, lightnings, earthquakes, sudden deaths and illnesses, have been held to be "acts of God;" but we know of no instance in which a rain of not unusual violence, and the probable results thereof in softening the superficial earth, have been so considered. In Dorman v. Ames, 12 Minn. 451, it was held that a man is negligent if he fail to take precautions against such rises of high waters as are usual and ordinary, and reasonably to be anticipated at certain seasons of the year; and the same principle applies to this case.' In an action to abate a nuisance, the defense that the injury was caused by an act of God is not tenable, where defendant's negligent act concurred in creating the nuisance." Where the track was weakened by an extraordinary fall of rain for 16 hours, and the result rendered the track insecure, and accident occurred, Pollock, C. B., said: "The line had lasted five years in a country subject to floods, and it does not appear that there had been any accident or objection to its construction till this extraordinary flood occurred, and the company was not bound to have the line constructed so as to meet such extraordinary floods." 1Gleeson v. Virginia M. R. Co. 140 U. S. 435, 35 L. ed. 458. See Ewart v. Street, 2 Bail. L. 157, 162; Moffat v. Strong, 10 Johns. 12; New Brunswick S. B. & C. Transp. Co. v. Tiers, 24 N. J. L. 697; Great Western R. Co. v. Braid, Moore, P. C. N. S. 101; Riley v. Horne, 5 Bing. 220; M'Call v. Brock, 5 Strobh. L. 124; Coosa River S. B. Co. v. Barclay, 30 Ala. 128; Dixon v. Metropolitan Board of Works, L. R. 7 Q. B. Div. 418; Philadelphia & R. R. Co. v. Anderson, 94 Pa. 351; Louisville, N. A. & C. R. Co. v. Thompson, 5 West. Rep. 833, 107 Ind. 442; Strouss v. Wabash, St. L. & P. R. Co. 17 Fed. Rep. 209; Miller v. Steam Nar. Co. 10 N. Y. 431; Merritt v. Earle, 31 Barb. 43; International & G. N. R. Co. v. Halloren, 53 Tex. 46. Dunsbach v. Hollister, 49 Hun, 352. |