from clandestine combinations with thieves and robbers, to the undoing of all persons who had dealings with them, was never applicable to carriers of passengers. They are not, as to the persons of those whom they carry, common carriers, and the law which holds the latter accountable for losses and injuries to the goods, unless occasioned by inevitable accident, which makes them, in other words, insurers of the safety of the goods against all events except the acts of God and the public enemy, is wholly to be disregarded when the question is between the carrier and the passenger as to the liability of the carrier for an injury sustained by the passenger whilst being transported by him. When the goods are lost or damaged, as has been seen, it will not avail the common carrier to prove that there was no want of diligence or care on his part. The question of care, skill or diligence, independently of contract, can cut no figure in such a case, and the liability is absolute unless occasioned by one or the other of the excepted causes. On the other hand, when the attempt is made to hold him responsible for an injury. to the person of the passenger, negligence is the essential element in the case, and without either proof or the presumption of its existence the injured party cannot recover.3 The common carrier of goods, for instance, will be liable at all events for depredations upon or destruction of the goods by mobs or robbers, and the violent attacks of all persons who are not pirates or the public enemy, unless he has protected himself against liability for loss occasioned in such manner by his contract; but if the passenger should sustain a personal injury at the hands of such lawless persons whilst being transported by the carrier, 3. Crofts v. Waterhouse, 3 Bing. 319; 11 Moore, 133; Readhead v. R'y Co., L. R. 2 Q. B. 412, L. R. 4 Q. B. 379; Aston v. Heaven, 2 Esp. 533; Camden, etc., R. R. v. Burke, 13 Wend. 611; Hollister v. Nowlen, 19 id. 234; Stokes v. Saltonstall, 13 Pet. 181; Taillon v. Mears, 29 Mont. 161, 74 Pac. Rep. 421; Railway Co. v. Lippman, 110 Ga. 665, 36 S. E. Rep. 202, 50 L. R. A. 673, citing Hutchinson on Carr.; Doyle . The Railroad, 82 Fed. Rep. 869, 27 C. C. A. 264, 50 U. S. App. 249; The Oregon, 133 Fed. 609; Campbell v. Canadian Pac. R'y Co., 1 Canadian R'y Cases, 258; Railway Co. v. Cunningham, 123 Ga. 90, 50 S. E. Rep. 979; Tyler v. The Railway (Tex. Civ. App.), 79 S. W. Rep. 1075; Ware v. Railroad Co., 119 Ill. App. 456. the latter could not be made liable for it in damages, at least, unless, knowing the danger, he had recklessly or negligently exposed the passenger to it when such exposure could have been avoided, or unless he had failed to protect him when his duty required it.5 1. Degree of care and diligence required. Sec. 893. ($498.) Degree of care and diligence required of passenger carriers.-It therefore becomes important to inquire as to the degree of skill and care required of the carrier of passengers in his employment, the want of which will constitute such culpable negligence as will make him responsible for the consequential personal injury sustained by his employer. Various terms have been used to express the extent of the obligation of such carriers by different judges. In the first of the cases in which the question was involved, tried before Lord Kenyon in 1791, it was held by that celebrated judge that mailcoaches, as carriers of passengers, were bound to carry "safely and properly." In Crofts v. Waterhouse, Park, J., stated the law in these words: "There is a wide distinction between contracts for the conveyance of passengers and those for the conveyance of goods. In the latter case, the parties are liable at all events, except the goods are destroyed or damaged by the act of God or the king's enemies; whilst in the former case, they are only responsible to their passengers in case of express negligence." "Carriers of passengers for hire are not responsible in all particulars," says Parker, C. J., in Bennett v. Dutton,8 "like common carriers of goods. They are not insurers of personal safety against all contingencies except those arising from the acts of God and the public enemy. For an injury hap 4. Pittsburg, etc., R. R. Co. v. Hinds, 53 Penn. St. 512. 5. See post, § 980, et seq. 6. White V. Boulton, Peake's Cases, 113. This case was decided by Lord Kenyon in 1791, and is said to have been the first case ever tried for the recovery of damages for a personal injury done to a passenger by a carrier. Per Hubbard, J., in Ingalls v. Bills, 9 Met. 1. 7. 11 Moore, 133. pening to the person of a passenger by mere accident, without fault on their part, they are not responsible, but are liable only for want of due care, diligence or skill." ($499.) Sec. 894. Same subject.-From these and other similar general statements as to the nature of the responsibility of passenger carriers, which have been frequently adopted and repeated, it has sometimes been concluded that the degree of care and circumspection.required of them is the same as that required of private carriers of goods for hire, and no more ;9 and to this class of carriers, passenger carriers have been compared in this respect. Other cases, however, have stated the law upon the subject with more strictness as to the degree of caution to be required of the carrier; and while the tendency has been to relax somewhat the rigid rule of the common law in regard to common carriers, and to treat it as the product of a less enlightened age, which should to some extent be modified in order to adapt it to a different state of society, no such disposition has been shown in regard to passenger carriers, and the tendency has been rather the other way, and to hold at least some classes of them to a higher degree of responsibility than was formerly required, in consideration of the vast increase of travel and the more rapid and more dangerous means of conveyance to which the invention of steam has given rise.10 Sec. 895. Same subject.-In consideration, therefore, of the hazards incident to the more modern modes of travel and the increased dangers to life and limb to which such modes have applied to them. But this opinion, unless a distinction is to be made between slave and other passengers in this regard, was not approved or followed in the subsequent case of Stokes v. Saltonstall, 13 Pet. 181, before the same court. 10. See Goldsmith v. Building Mo. App. -, 81 S. W. citing Hutchinson on 9. Upon the ground that the strict rule of the common law as to the extraordinary responsibility of common carriers, introduced for general commercial objects, did not apply to the conveyance of slaves, it was said by Marshall, C. J., in Boyce v. Anderson, supra, that the ancient Co., rule, "that the carrier is liable Rep. 1112, only for ordinary neglect," still Carr. given rise, the law very justly holds that, while the carrier of passengers does not warrant the safety of his passengers as the common carrier does that of goods, he is bound to provide for their safe conveyance as far as human care and foresight will go, or, as some courts have expressed it, to exercise for the safety of his passengers while upon his conveyance the highest or utmost degree of care and diligence which human prudence and foresight will suggest in view of the character and mode of conveyance employed. And the degree of care which the law thus exacts of him is stated in the same or equivalent language in nearly all the cases in which his obligation has been defined.11 11. England: Christie v. Griggs, 21 Conn. 245; Hall v. Steamboat 2 Camp. 79. United States: The Oriflamme, 3 Sawyer, 397; Stokes v. Saltonstall, 13 Pet. 181; Philadelphia, etc., R. R. v. Derby, 14 How. 468; S. B. New World v. King, 16 How. 469; Indianapolis, etc., R. R. v. Horst, 93 U. S. 291; McKinney v. Neil, 1 McLean, 540; Maury v. Talmadge, 2 McLean, 157; Pendleton v. Kinsley, 3 Clifford, 416; Pennsylvania Co. v. Roy, 102 U. S. 451; Trumbull v. Erickson, 97 Fed. Rep. 891, 33 C. C. A. 536; Cavin v. Southern Pacific Co., 136 Fed. Rep. 592; s. c. 144 Fed. 348. Alabama: Railroad Co. v. Hill, 93 Ala. 514, 9 So. Rep. 722, 30 Am. St. Rep. 65, citing Hutchinson on Carr.; Railroad Co. 2. Greenwood, 99 Ala. 501, 14 So. Rep. 495. Arkansas: Railway Co. v. Murray, 55 Ark. 248, 18 S. W. Rep. 50, 29 Am. St. Rep. 32, 16 L. R. A. 787. California: Green V. Pacific Lumber Co., 130 Cal. 435, 62 Pac. Rep. 747. Co., 13 Conn. 319; Murray v. The Co., 898. Georgia: Railway Co. v. Cunningham, 123 Ga. 90, 50 S. E. Rep. 979; Holly v. The Railroad, 61 Ga. 215; Railway Co. v. Findley, 76 Ga. 311. Illinois: Tuller v. Talbot, 23 Ill. 357; Pittsburgh, etc., R. R. Co. v. Thompson, 56 Ill. 138; Railway Co. v. Lewis, 145 Ill. 67, 33 N. E. Rep. 960, affirming 48 Ill. App. 274; Railroad Co. v. Byrum, 153 Ill. 131, 38 N. E. Rep. 578, affirming 48 Ill. App. 41; Railroad Co. v. Beebe, 174 Ill. 13, 50 N. E. Rep. 1019, 66 Am. St. Rep. 253, 43 L. R. A. 210, affirming 69 Ill. App. 363; Railroad Co. v. Klein, 43 Ill. App. 63; Railway Co. v. Hubbard, 106 Ill. App. 462; Railroad Co. t. Scott, 111 Ill. App. 234. Indiana: Sherlock v. Alling, 44 Ind. 184; Thayer v. The Railroad, 22 Ind. 26; Jeffersonville, etc., R. Connecticut: Derwort v. Loomer, R. v. Hendricks, 26 Ind. 228; Ken Sec. 896. (§ 501.) Same subject-Bound to protect as far as human care and foresight will go.-Although the form of expression is sometimes varied, and the rule is stated as requiring "the utmost diligence of very cautious persons, ""the great tucky, etc., Bridge Co. v. Quinkert, 2 Ind. App. 244, 28 N. E. Rep. 338, citing Hutchinson on Carr. Iowa: Raymond v. Railway Co., 65 Iowa, 152; Moore v. Railway Co., 69 Iowa, 491. Kansas: Railroad Co. v. Berry, 53 Kan. 112, 36 Pac. Rep. 53, 42 Am. St. Rep. 278; Meador v. The Railway, 62 Kan. 865, 61 Pac. Rep. 442. Kentucky: Railway Co. v. Vivion, 19 Ky. Law Rep. 687, 41 S. W. Rep. 580. Maine: Dunn v. The Railroad, 58 Me. 187; Edwards v. Lord, 49 Me. 279; Libby v. The Railroad, 85 Me. 34, 26 Atl. Rep. 943, 20 L. R. A. 812. Montana: Taillon v. Mears, 29 Mont. 161, 74 Pac. Rep. 421. Nebraska: It is held under the Nebraska statute that when a passenger is injured while being transported, a conclusive presumption of negligence will arise, unless the carrier can show that the passenger was guilty of criminal negligence or of a violation of its rules or regulations. See Railroad Co. v. Wolfe, 61 Neb. 502, 86 N. W. Rep. 441; Railroad Co. v. Hague, 48 Neb. 97, 66 N. W. Rep. Massachusetts: Ingalls v. Bills, 1000. See also, post, § 1413, note. 9 Met. 1. Maryland: Stockton v. Frey, 4 Gill, 406; Railroad Co. v. Swann, 81 Md. 400, 32 Atl. Rep. 175, 31 L. R. A. 313; Railroad Co. v. Shivers, Md. 61 Atl. Rep. 618; Philadelphia, etc., R. Co. v. Allen, Md. 62 Atl. Rep. 245. Minnesota: Johnson v. The Railroad, 11 Minn. 296; Wilson t. The Railroad, 31 Minn. 481; Benedict v. The Railroad, 86 Minn. 224, 90 N. W. Rep. 360, 91 Am. St. Rep. 345, 57 L. R. A. 639. Missouri: Dougherty v. Railroad Cc., 97 Mo. 647; Leslie v. Railroad Co., 88 Mo. 55; Furnish . Railway Co., 102 Mo. 438; 13 S. W. Rep. 1044; Clark v. The Railroad, 127 Mo. 197, 29 S. W. Rep. 1013; Wilburn v. The Rairoad, 48 Mo. New York: McPadden ". The Railroad, 44 N. Y. 478; Caldwell v. St. Bt. Co., 47 N. Y. 282; Carroll v. The Railroad, 58 N. Y. 126; Caldwell . Murphy, 1 Duer, 233; Brand . The Railroad, 8 Barb. 368; Hegeman v. The Railroad, 13 N. Y. 9; Maverick r. The Railroad, 36 N. Y. 378; Miller v. Steamship Co., 118 N. Y. 200; Palmer v. Canal Co., 120 N. Y. 170; Schloterer v. Ferry Co., 78 N. Y. Supp. 202, 75 App. Div. 330. Oregon: Budd r. United Carriage Co., 25 Or. 314, 35 Pac. Rep. 660, 27 L. R. A. 279. Pennsylvania: Meier v. The Railroad, 64 Penn. St. 225; New Jersey R. R. v. Kennard, 21 Penn. St. 203; Laing v. Colder, 8 Penn. St. 479; Sullivan r. The Railroad, 30 Penn. St. 234; Smedley v. The |