1867 carriage, and is consequently liable, if the carriage turns out to be defective, notwithstanding that the infirmity was of such a nature READHEAD that it could neither be guarded against nor discovered. V. MIDLAND The question thus nakedly raised is one of vast importance at RAILWAY CO. the present day, both to railway companies and passengers; and there being no case in our reports in which it has been argued and adjudicated, we took time to consider our judgment. Having done so, and given to the subject the best consideration in my power, I adhere to the opinion that the law imposes no such liability on railway companies, though, as my Brother Blackburn has come to a different conclusion, I express that opinion with some degree of diffidence. It is not contended that the obligation of a carrier of passengers is co-extensive with that of a carrier of goods, who by the custom of the realm is placed in the position of an insurer, subject only to the exceptions of loss or damage by "the act of God, or the public enemies of the crown." The reasons upon which that liability is based, and which are expressed by Holt, C.J., in Coggs v. Bernard (1), and by Best, C.J., in Riley v. Horne (2), are inapplicable to a carrier of passengers. The latter has not the same control over persons which he has over goods, nor the same opportunities of abuse and misconduct, the apprehension of which gave rise to this rigorous rule of law; and therefore the law has never imposed upon him the responsibility of an insurer. The undertaking of a carrier of passengers, says Dr. Story, in his work on Bailments, s. 601, "is not an undertaking absolutely to carry safely," but only to exercise "due care and diligence in the performance of his duty." But it is contended that in this particular part of his duty, viz. the providing a suitable vehicle, his undertaking goes beyond the measure of “due care and diligence,” and includes a warranty that the carriage which he provides is sound and free from all defects which render it unfit for the service, though he has used every means in his power to make it sound, and though he could not by any amount of care, skill, or vigilance have ascertained that it was not so. The language of Story just quoted does not suggest any such qualification, and surely so important an element in the contract about which he is (1) 2 Lord Raym. 909, 918. (2) 5 Bing. 217, 220. 1867 treating, would have been noticed by that learned writer, if he READHEAD had supposed it to exist. No such liability is, however, hinted at throughout the work, nor, as I am aware of, in any other text RAILWAY Co. book. The proposition is one which I cannot adopt without v. MIDLAND authority; because I can see no reason why a carrier should be held to warrant more than due care and diligence can enable him to perform as respects the quality of his carriage, when it is admitted that he is under no such liability as respects the conduct or management of it. We were pressed with what were alleged to be analogous cases of a shipowner, who is held to warrant the seaworthiness of his vessel; and of a manufacturer of goods ordered for a given purpose, who, it was contended, is held to warrant their fitness and sufficiency for that purpose. As to shipowners, I agree there is abundant authority for the doctrine laid down; and moreover, that there is no distinction in this respect between a carrier by water and a carrier by land. But it is to be observed, that wherever this particular liability of a shipowner is mentioned, it has reference to his obligation as the carrier of cargo. In that capacity he is an insurer of its safe delivery, subject only to the excepted perils. His warranty of seaworthiness in such a case springs out of, and necessarily results from, the absolute duty he has undertaken; and is not a warranty superadded to, and exceeding the terms and measure of his contract to carry, as it would be if it were extended to a carrier of passengers. A carrier of goods by land, may with equal propriety be said to warrant the roadworthiness of his carriage, because he warrants against every casualty by which the goods might be lost or damaged on the journey. As regards the second case put, viz. that of the manufacturer who supplies goods to order for a given use or purpose, I do not stop to consider whether the analogy is so complete as the argument assumes it to be, because it does not appear to me that the case mainly relied on, viz. Brown v. Edgington (1), sanctions the doctrine which is sought to be deduced from it. Upon carefully examining the facts there, it will be found that no such question as that we have now to determine arose in the case. The insufficiency of the rope was attributable to causes which imply blame (1) 2 M. & G. 279. 1867 V. MIDLAND in the manufacturer, viz. to either a want of judgment, or a want of care, or skill, both, or all. The rope was not strong enough for READHEAD the purpose for which for which it was known by the defendant to have been required, it having been made of too small a size, or of faulty RAILWAY CO. materials, or been badly put together; and whatever the cause of its failure was, it was one which might have been prevented, and it was assumed by the Court, as it was assumed in the case of Jones v. Bright (1), that the manufacturer might, and therefore ought to, have made it sufficient for the purpose. The main contest in the case was, whether the defendant was liable, seeing that he was not the manufacturer of the rope, but had procured it from a ropemaker. The question of liability for a hidden, undiscoverable, and unavoidable defect, was not present to the mind of any of the judges who decided that case. I cannot, therefore, regard it as an authority to the extent necessary to sustain the plaintiff's argument, nor am I aware of any other case on that point which established such a position. I do not feel it necessary to review in detail the cases which more directly bear upon the liability of a carrier of passengers. They are quoted by Story as the authorities for the rule which he lays down, and, in my judgment, they do not carry the liability further than he has stated it. In all of them, where it has become necessary to define that liability, the judges have carefully distinguished between a carrier of passengers and a carrier of goods, and have pointedly declared that the liability of the former stands on the ground of negligence alone: see Aston v. Heaven (2); Christie v. Griggs (3); Crofts v. Waterhouse. (4) Undoubtedly, there are expressions used in some of those cases which, if taken alone, and without reference to the particular facts, favour the argument of the plaintiff see per Lord Ellenborough, in Israel v. Clark (5); Best, C.J., in Bremner v. Williams (6); and per Gaselee and Bosanquet, JJ., in Sharp v. Grey. (7) But reading such expressions as they should be read, in connection with, and as applicable to, the facts of each case, it is, to my mind, evident (1) 5 Bing. 533. (3) 2 Camp. 79. : (5) 4 Esp. 259. (6) 1 C. & P. at p. 416. (4) 3 Bing. at p. 321. 1867 READHEAD V. MIDLAND that the learned judges who used them did not intend them to be understood in the sense now imputed to them. The decisions in those cases in which such expressions are used, seem to me against RAILWAY Co. the plaintiff rather than decisions in his favour. In Sharp v. Grey (1), the case most pressed in the argument by the plaintiff's counsel, as also in the case of Christie v. Griggs (2), the axletree had, without any external cause to account for it, suddenly snapped. If there was such a warranty as is now insisted on, that warranty had clearly been broken, for the coach had turned out to be not roadworthy. There was, therefore, nothing to go to the jury but the amount of damages; whereas, in each case, the question was left to the jury whether the defendant was liable as guilty of a want of due care or not. In Sharp v. Grey (1), the jury found a verdict for the plaintiff, which the Court refused to disturb; in Christie v. Griggs (2), they found for the defendant, and no motion appears to have been made to set this verdict aside. Coming down to a more recent period, I find the same doctrine laid down by the Lord Chief Justice of this court in Stokes v. Eastern Coun ties Railway Company. (3) That was a case exactly similar to the present. The wheel had broken from a latent flaw in the welding, and great injury had been done to several passengers. After a very lengthened trial, the jury found a verdict for the defendants, and although the plaintiff in that case, and many other persons, were deeply interested in questioning the ruling of the Lord Chief Justice, no attempt was made to set aside the verdict. As far, therefore, as the authorities in this country go, they are against the position taken by the plaintiff, and considering that many such accidents have occurred since the introduction of railways, the fact that this is the first time so extensive a liability has been insisted on, argues a general impression against it. But though the question has not before been presented for solemn adjudication in this country, it has been raised more than once in the courts of the United States, and in every case the judgment has been in favour of the carrier. In Ingalls v. Bills (4), cited in the 7th edition of Story on Bailments, p. 565, the Court delivered 1867 an elaborate judgment, reviewing all the authorities, English and American, and affirming the doctrine that a carrier of passengers READHEAD is liable only for negligence. บ. MIDLAND For these reasons, I am of opinion that the rule must be dis- RAILWAY Co. charged. 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-tires 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 diligence, in everything that concerned the safety of passengers; but that if the injury was due to a hidden defect in the carriage, which 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 responsibility, both of common carriers of goods 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 (1); Ansell v. Waterhouse. (2) Until the time of Dale v. Hall (3), 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. In Coggs v. Bernard (4), Lord Holt, in defining his fifth (1) 3 B. & B. 54. (2) 6 M. & S. 385. (3) 1 Wils. 281. |