Hegeman vs. The Western Railroad Corporation, 16 Barb. 353

By the Court, Harris, J. The defendants were carriers of passengers, and as such, were bound to conduct their business with, all the care which human prudence and skill could suggest. Any thing short of this would make them liable for the consequences. Having the exclusive management and control of their cars and road, it was presumable that no accident would occur without some neglect or want of skill or foresight.

An accident having occurred, and the plaintiff having been injured by means of such accident, a prima facie case of negligence was made out, which, unless it should be overcome' by proof on the part of the defendants showing that they had been wholly faultless, would entitle the plaintiff to recover compensation for the injury he had sustained. (See Holbrook v. The Utica and Schenectady Railroad Company, ante, p. 113, and cases there cited.). This burden of proof was assumed by the defendants.

They gave evidence to show that they had purchased the car from a manufacturer of high reputation for the excellence and safety of the cars manufactured by him, and that, after employing all reasonable care and skill for the purpose of detecting any defect in the machinery, the defect in the axle, which was the cause of the accident, had remained undiscovered, and, in fact, could not be discovered by means of any examination which the defendants were able to make. The rule of law applicable to the evidence, upon this branch of the case, was very accurately stated by the learned judge, at the circuit.

After having distinctly laid down the general proposition that the defendants were not liable, if they had exercised all reasonable care and diligence in providing a safe track and a safe engine and cars, and had properly supplied their train with a suitable number of competent and faithful men to take charge of the train, and those men had managed it in a careful and skillful manner, he proceeded to say, in respect to the defect in the axle, that the defendants were responsible for this defect to the same extent as if the axle had been manufactured by themselves.

Of the soundness of this rule, I think there can be no doubt. From the very necessity of the case, the defendants are obliged to carry on their business through the instrumentality of agents. Some are employed to construct or keep in repair their road way; others to construct or repair their engines and cars; and others, again, to operate such engines and cars upon the road. For neglect or want of skill in any of these, the defendants, as principals, are answerable to third persons.

Whether the engine or car which they place upon the road for the purpose of carrying passengers has been manufactured in their own workshops, by agents employed directly for that purpose, or by a manufacturer engaged in the business of supplying such articles for sale, they are alike bound to see that, in the construction, no care or skill has been omitted for the purpose of making such engine or car as safe as care and skill can make it. When such care and skill has been exercised, the defendants’ duty, in this respect, has been discharged.

If, on the other hand, a defect exist in the construction, which might have been detected and remedied, they are answerable for the consequences. (See Angell on Carriers, § 435. Sharp v. Grey, 9 Bing. 457.) In the latter case, an injury had happened to a passenger in a stagecoach, by reason of an original defect in the construction of an axletree.

Alderson, J. said: “ A coach proprietor is liable for all 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; if not, he might buy ill-constructed or unsafe vehicles, and his passengers be without remedy.” Park, J. said: “ This ivas entirely a question of fact.

It is clear that there was a defect in- the axletree, and it was for the jury to say whether the accident was occasioned by what, in law, is called negligence in the defendant, or not.” The cases bearing upon this question, both English and American, have been examined with great clearness and ability in Ingalls v. Bills, (9 Metcalf, 1.) The doctrine stated by Mr.

Justice Hubbard, who pronounced the judgment of the court in that case, as the result of his examination, is, that “ 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 the coach, such accident must be ascribed to negligence.

On the other hand, if the accident arises from a hidden and internal defect, which a careful and thorough éxamination would not disclose, and which could not be guarded against by the exercise of a sound judgment and the most vigilant oversight, then the proprietor is not liable.” The question of liability is here put upon its true foundation. It is a question of negligence, not of warranty. A question for the jury, not for the court.

It being ascertained that the accident, which resulted in the injury for which the action is brought, was caused by a defect in the construction of the vehicle, it must then be referred to the jury to say, upon the evidence, whether “the defect might have been discovered upon a careful and thorough examination,” or whether it was so hidden that “the most careful and thorough examination would not have disclosed it.” The charge of the learned judge who tried this case was in conformity with this rule.

The jury were instructed that, in respect to the defect in the axle, the defendants’ liability would depend upon the question whether the defect was of such a character that it “ could have been discovered upon a vigilant examination by a person of competent skill, either at the time of construction or afterwards.” The true test of the defendants’ liability upon this branch of the case, was thus presented. But the plaintiff, without regard to the question arising upon the defect in the axle, had insisted that the defendants were liable by reason of their omission to provide the car with a safety beam.

Evidence had been given to show that this improvement had been extensively known and used prior to the time when the accident happened; and also to show its utility, as a safeguard against accidents. The evidence, though objected to, was properly received. The defendants were bound to use every precaution which human skill and foresight could suggest to insure the safety of their passengers. Ifj then, it could be shown that the safety beam was an

article of such established utility and so extensively known, that it ought to have been used by the defendants upon their cars, they might justly be charged with negligence in not adopting it.

The judge was right, therefore, not only in receiving the evidence, but in submitting it to the jury, to say whether, “ taking into consideration the vigilanee required of carriers of passengers, and the publicity of the invention, and of its use prior to the time of the injury, the defendants were or were not negligent in not informing themselves of the utility and necessity of the invention and availing themselves of it.” [Albany General Term, September 5, 1853. Watson, Wright and Harris, Justices. Uor do I think the court is called upon to interfere on the ground of excessive damages.

It is true the damages awarded by the jury seem quite ample, being nearly twice the amount which could have been recovered if the plaintiff had been actually killed. It must also be conceded that, though the jury have found the defendants chargeable with negligence, it was not a case of very gross negligence. Indeed, the evidence shows no want of ordinary care on the part of the defendants. It is only because the defendants were bound to conduct their business with the greatest possible, care and caution, that they were made liable at all.

But, on the other hand, the case shows that the injury sustained by the plaintiff is entirely beyond any pecuniary estimate. An artisan engaged in business, he was confined to his bed for several months, and, from the nature of his injuries, must have been the subject of extreme pain and suffering. Up to the time of the trial he had scarcely been able to leave his house, and, so permanent are his injuries that it is not probable he will ever again possess the ability to provide for the support of himself or his family.

Under such circumstances, it cannot be said that the damages awarded by the jury are so excessive as to call for the interference of the court. The motion for a new trial should therefore be denied.