1 See Delamatyrw. Milwaukee, etc. Railroad Co., 24 Wis. 578 (1869).
2 Bissell v. N. Y. Central Railroad Co., 25 N. Y. 442. And this rule would be enforced in other States, if the cause of action arose in New York. Knowlton v. Erie Railway Co., 19 Ohio St. 260 (1869).
3 Penn. Railroad Co. v. Henderson, 51 Penn. St. 315; Cleveland, etc. Railroad Co. v. Curran, 19 Ohio St. 1, 14 (1869).
4 Laiug v. Colder, 8 Barr, 479; Sullivan v. Philadelphia, etc. Railroad Co., 30 Penn. St. 234; Galena, etc. Railroad Co. v. Yarwood, 15 I11. 468; 17 Id. 509; Zemp v. The W. & M. Railroad Co., 9 Rich. 84.
5 See Mitchell t;. Western & Atlantic Railroad Co., 30 Ga. 22.
§ 965. Carriers of passengers are either (1) Carriers by land, or (2) Carriers by water. Carriers by land are bound to provide suitable vehicles and harnesses, and necessary equipments,6 and the latest improvements for safety, to insure the safety of the passengers; or they will be liable for any injuries arising from a deficiency therein, or for injuries arising from a malconstruction.7 Where, therefore, in consequence
1 Christie v. Griggs, 2 Camp. 79; Ware v. Gay, 11 Pick. 106; Stokes v. Saltonstall, 13 Pet. 181; McKinney v. Neil, 1 McLean, 540; Stockton v. Frey, 4 Gill, 406; Farish v. Reigle, 11 Gratt. 697; Fairchild v. California Stage Co., 13 Cal. 599; Boyce v. California Stage Co., 25 Id. 460; McLean v. Burbank, 11 Minn. 277.
2 Carpue v. London & Brighton Railway Co., 5 Q. B. 747; Dawson v. Manchester, etc. Railway Co., 5 L. T. (n. s.) 682; Yonge v. Kinney, 28 Ga. 111; Louisville, etc. Railroad Co. v. Smith, 2 Duvall (Ky.), 556; Great Western Railroad Co. v. Braid & Fawcett, 1 Moore, P. C. (n. 8.) 101; Bird v. Great Northern Railway Co., 28 L. J. (n. s.) Exch. 3; Brehm v. Great Western Railway Co., 34 Barb. 256; Edgerton v. New York & Harlem Railroad Co., 35 Barb. 193.
3 Skinner v. London, etc. Railway Co., 5 Exch. 787; 2 Eng. Law & Eq. 360; Ayles v. South Eastern Railway Co., Law R. 3 Exch. 146 (1868); New Orleans, etc. Railroad Co v. Allbritton, 38 Miss. 242; Burke v. Manchester, etc. Railway Co., 22 L. T. (n. s.) 442 (1870).
4 Illinois Central Railroad Co. v. Phillips, 49 I11. 234; Caldwell v. New Jersey Steamboat Co., 56 Barb. 426 (1870); Wilkie v. Bolster, 3 E. D. Smith, 327.
5 See Le Barron v. East Boston Ferry Co., 11 Allen, 312; Curtis v. Rochester & Syracuse Railroad Co., 18 N. Y. 534; Latch v. Rumner Railway Co., 27 L. J. (n. s.) Exch. 155; Tobin v. Murison, 9 Jur. 907; Daniel v. Metropolitan Railway Co., Law R. 3 C. P. 216, 222 (1868); Meier v. Penn. Railroad Co., 64 Penn. St. 225 (1870).
6 Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282 (1872); Stein-weg v. Erie Railway Co., 43 N. Y. 123; Costello v. Syracuse, etc. R. Co., 65 Barb. 92.
7 N. J. Railroad v. Kennard, 21 Penn. St. 203; Farish v. Reigle, 11 of the want of a railing shutting the luggage off, it struck against a passenger and threw her off the coach, the carrier was held to be liable.1 They are also bound to know thoroughly the condition of their vehicles and equipments; and if an accident occur because of any defect, they are responsible.2 Nor does it matter that the defect is out of sight and latent, provided that it could have been discovered by a minute examination,3 for every coach proprietor is understood to "warrant to the public that his coach is equal to the journey it undertakes, and it is his duty to examine it previous to the commencement of every journey." 4 It has been said that a coach should be roadworthy, in like manner as a ship should be seaworthy;5 but this would only be true in respect to goods and luggage, not to passengers; for the liability of a carrier of passengers is not that of a common carrier of goods, and he is responsible only for want of strict diligence.6 In a late case in Massachusetts, the measure of liability assumed by a carrier of passengers in respect to the condition of his vehicle was fully considered; and the result to which the court arrived, after an examination of all the principal English and American cases, was this: "That carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient, and suitable coaches, harnesses, horses, and coachmen, in order to prevent those injuries which human care and foresight can guard against; and 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, for which the owner is liable in case of injury to a passenger happening by reason of such accident. On the other hand, where 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 for the injury, but the misfortune must be borne by the sufferer, as one of that class of injuries for which the law can afford no redress in the form of a pecuniary recompense." 1
Gratt. 697; Derwort v;. Loomer, 21 Conn. 245; N. & C. Railroad v. Messino, 1 Sneed, 220. See Edwards v. Lord, 49 Me. 279; Sullivan v. Philadelphia, etc. Railroad Co., 30 Perm. St. 234. A distinction exists between the duties of a common carrier to passengers and to strangers. One not sustaining the relation of passenger cannot recover for an injury if by the exercise of care and prudence he could have avoided it. I11. Cent. R. Co. v. Phillips, 55 I11. 194 (1870). 1 Curtis v. Drinkwater, 2 Barn. & Ad. 169.
2 Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611; Hollister v. Nowlen, 19 Wend. 234; Christie v. Griggs, 2 Camp. 79; Carroll v. N. Y. & N. H. Railroad, 1 Duer, 571.
3 Israel v. Clark, 4 Esp. 259; Sharp v. Grey, 9 Bing. 457; Christie v. Griggs, 2 Camp. 80; Bremner v. Williams, 1 Car. & Payne, 414; Crofts v. Waterhouse, 3 Bing. 319; Jones v. Boyce, 1 Stark. 493; 1 Bell, Comm. 462; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282 (1872).