the plaintiff brought an action to recover damages, for a personal injury received by him while a passenger upon the defendants' railroad. The injury was occasioned by the breaking of the axle of the car in which he was seated. The defendants gave evidence, tending to show, that the axle which broke was made of the best quality of iron, and well made; that it had been examined from time to time, and that no external defect could be discovered. But, upon examining the iron where it was broken, a fire-crack appeared, and the iron did not appear to be good. It also appeared upon the trial, that an article called a safety-beam was in extensive use upon railroads in this country, the object of which was, in case an axle should break, to hold the wheel and axle in their place. The car was not constructed with this safety-beam, and it was insisted, on the part of the plaintiff, that the omission was evidence of negligence. The Judge charged the jury, that the defendants were responsible for all defects in the axle, which might have been discovered and remedied, to the same extent as if they had manufactured the axle in their own workshop and by their immediate agents. He also left it to the jury to say, whether or not the defendants were guilty of negligence, in not informing themselves of the utility of a safety-beam, and furnishing their cars with them. The jury returned a verdict for the plaintiff for $9,900, which, upon a motion for a new trial, was affirmed. "From the very necessity of the case," said Harris, J., in delivering the opinion of the Court, "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 exists in the construction, which might have been detected and remedied, they are answerable for the consequences."" And, as to the duty of the defendants, to provide their cars with safety-beams, he also remarked: “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 safetybeam. 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. If, 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

1 To this point, he cited Sharp v. Gray, 9 Bing. R. 457, and Ingalls v. Bills, 9 Met. (Mass.) R. 1, in the latter of which, the cases bearing upon this question, both English and American, have been examined with great clearness and ability; and the doctrine stated by Mr. Justice Hubbard, who pronounced the judgment of the Court, 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 examination 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."

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 vigilance 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."1

§ 388. Their Liability for the Conduct of their Servants or Agents. So it is the duty of the proprietors of railroads to see that all the agents and servants employed in the management of the road, are careful, competent, and not addicted to intemperate habits. Their responsibility to passengers for injuries resulting from the default of their agents or servants, extends to all acts done by them in the course of their employment, even though done in disobedience of orders. Thus, where a suit was brought against a railroad company, by a person who was injured by a collision, it was held, that if the plaintiff was lawfully on the road, at the time of the collision, and the collision and consequent injury to him were caused by the gross negligence of one of the servants of the company, then and there employed on the road, he was entitled to re

1 It has been held, that it is the duty of the proprietor of a stage-coach to examine it previous to the commencement of every journey; and, it has been said, where the vehicle is crowded with passengers, if no inspection of it takes place previous to each journey, the proprietor or master is guilty of gross negligence. Bremmer v. Williams, 1 C. & Payne, R. 414; Ware v. Gay, 11 Pick. (Mass.) R. 106; Ingalls v. Bills, 9 Met. (Mass.) R. 1. And see Israel v. Clark, 4 Esp. R. 259; Camden and Amboy Railroad Co. v. Burke, 13 Wend. (N. Y.) R. 611; Cole v. Goodwin, 19 Wend. 251; Story on Bailments, § 592; Angell on Carriers, § 533 et seq. In New Jersey Railroad Co. v. Kennard, 21 Penn. (9 Harris) R. 203, it was held, that an instruction to the jury, that “no car is good if the windows are not so constructed as to prevent the passengers from putting their limbs through them," is not erroneous, when applied to a car run on a railroad, which, in some places, is so narrow as to endanger projecting limbs. And see Miller v. Canal Commissioners, 21 Penn. (9 Harris) R. 23. 2 Angell on Carriers, § 541.

cover, notwithstanding the circumstances, that the plaintiff was a stockholder of the company, riding by invitation of the president, paying no fare, and not in the usual passenger cars. And, also, that the fact that the engineer having control of the colliding locomotive, was forbidden to run on that track at the time, and had acted in disobedience of such orders, was no defence to the action.' And even if a part of their road be entrusted to the management of servants or agents, employed and paid by another company, yet, it being within the scope of their duty to see that such part of their road is rightly constructed, attended and managed, before they are justified in carrying passengers over it, they will be responsible for the negligence of such servants or agents." In Pennsylvania, it has been held, that the owners of passenger cars used upon a railroad belonging to the State, are liable as common carriers for an injury sustained by a passenger occasioned by a collision of their trains, though the motive-power of the road was furnished by the State, and under the control of its agents, through whose negligence the accident happened.3

2

1 Philadelphia Railroad Co. v. Derby, 14 How. (U. S.) R. 468; 20 Curtis, (U. S.) S. C. Decis. 291. And see Sleath v. Wilson, 9 Car. & Payne, R. 607 Williams v. The Madison and Indianapolis Railroad Co. 5 Ind. (Port.) R. 340. But where a railroad company, by its printed rules and regulations, prohibited its engineers from allowing any one, not in its employ, to ride upon the engines; and the plaintiff applied to an engineer for permission to ride upon the engine, and was informed that it was against the rules of the company to carry him in that place, but the engineer finally consented that the plaintiff might ride with him, and he did so, without the knowledge of the conductor, and paying no fare; it was held, that the consent of the engineer conferred no legal right, and that the plaintiff, not being lawfully upon the engine, was a wrongdoer, and could not recover damages of the company for an injury sustained while riding in that place. And it was also held, that the onus was on the plaintiff to show, that the engineer had authority from the company to permit him to ride upon the engine; the presumption being, that he had no right to be there, whether he paid fare or not. Robertson v. The New York and Erie Railroad Co. 22 Barb. (N. Y.) Sup. Ct. R. 91.

2 McElroy v. The Nashua and Lowell Railroad Corp. 4 Cush. (Mass.) R.

3 Peters v. Ryland, 20 Penn. (8 Harris) R. 497.

§ 389. In a case of injury to a railroad passenger by collision, it appeared that the train had been hired of the company by a society for an excursion, the tickets for which were sold and distributed by the treasurer of the latter body, from whom the plaintiff purchased his, and that the accident was occasioned by the running, in the dark, against another train, which was standing still at an intermediate station on the line; yet it was held that the company were liable for the accident, although the plaintiff's ticket was purchased of the treasurer of the society, they having constituted him their agent to contract with those who took the tickets, by giving him such tickets to distribute.1

§ 390. The agents or servants of a railroad company cannot, however, commit the company to a liability which they have no power under their charter to contract.

The agent

of the defendants, who were a railroad corporation, running their cars from New Haven to Plainville, sold the plaintiff a ticket for the fare from New Haven to Collinsville, which was five miles beyond Plainville. The plaintiff, for injuries which he received in a stage running between Plainville and Collinsville, brought his action, upon a special contract to carry safely by railroad and stage from New Haven to Collinsville. The defendants had never, by any corporate vote, expressly authorized or sanctioned contracts similar to that upon which the plaintiff declared, nor had their directors, by any vote, directed any such contract to be made, nor did their charter confer upon them any power to enter into the same. But the plaintiff claimed to have proved that the defendants, for more than six months before, and at the time of the sale of his ticket, had been and were in the daily usage of entering into and fulfilling contracts identically like that alleged in the declaration; that, during that entire period, they had publicly represented and

1 Skinner v. The London, Brighton and South Coast Railway Co. 2 Eng. Law and Eq. R. 360.