"The doctrine of the American courts is still more strict and explicit; and the general current of the authorities is, that the carrier of passengers is bound to the utmost care and diligence of very cautious persons, and is responsible for any, even the smallest neglect; holding their undertaking to be to carry their passengers with safety as far as human care and foresight can go. This is distinctly laid down in Story on Bailm. § 601, 601 a, and, also, in 2 Greenl. Evid. § 221, and in 2 Kent's Comm. *601, *602, and Redfield on Rail., chap. 17.
"This, it will be perceived, accords substantially with the definition of the highest degree of care required of bailees of goods, namely, that care and diligence which very prudent persons take of their own concerns. Story on Bailm. § 16; Jones on Bailm. 166, where it is said that slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels.
"It is true that doubts have often been expressed as to the utility of for expenses incurred in procuring another conveyance.1 And if a passenger book for four seats together in the inside, the coach-driver is bound to furnish them, or he will in like manner be liable.1 And it seems to be no excuse for a railway
§ 767 a. So, also, carriers of passengers are bound to provide careful and skilful drivers, and steady and suitable horses; the theory which undertakes to define the degrees of negligence as slight, ordinary, and gross, as in Steamboat New World v. King, 16 How. U. S. Rep. 474, and cases cited, where Curtis, J., expresses the opinion that the attempt thus to define the degrees of negligence had better be abandoned. So it is in Briggs v. Taylor, 28 Vt. Rep. 184.
"But however this maybe, some light maybe gained in respect to the duty of carriers of passengers by steam, by considering some of the rules which have governed the courts in relation to bailments.
"When the contract of bailment is mutually beneficial to both parties, as in the case of bailments for hire, pledges, and the like, the bailee has been held for ordinary care, which is defined to be that care which every person of common prudence, and capable of governing a family, takes of his own concerns; Jones on Bailm. § 11, Story on Bailm. § 11; while a bailee who alone receives a benefit, as in the case of the borrower, is bound to use extraordinary care.
"In the case of the bailee of goods the obligation of care and diligence rises in proportion to the demand for it, although it still is only ordinary diligence that is required; but it is obvious that what will constitute ordinary care will be affected by the nature, bulk, and value of the goods bailed, for no one would expect the same care to be taken of a bale of cotton as of a box of jewelry or other thing peculiarly liable to be stolen or injured.
"The case of common carriers of goods is an exception to the general rules applicable to bailments, and they are now regarded as insurers and liable for all losses except such as are caused by the act of God, or by the public enemies; and this is put upon the ground of public policy to guard against both negligence and collusion. Moses v. Boston & Maine Railroad, 24 N. H. 84.
"Upon grounds of public policy also the carrier of passengers is bound to exercise the highest degree of care and diligence. To his diligence and fidelity are intrusted the lives and safety of large numbers of human beings. He assumes the trust voluntarily, and for it receives a sufficient compensation; and we think it very apparent that in no case of the bailment of goods is there so great and imperative a demand for the utmost skill and diligence as from the carrier of passengers. Especially is this true when the passengers are carried upon railroads by steam, for then in consequence of the greater speed the hazards to life and limb are largely increased.
"In the Philadelphia & Reading Railway Co. v. Derby, 14 How. U. S. Rep. 486, the court says: ' When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence; and whether the consideration be pecuniary or otherwise, the personal not to overload the coach; to receive the usual baggage and luggage, and to redeliver it at the end of the journey. If a safety of passengers should not be left to the sport of chance, or the negligence of careless agents; any negligence in such cases may well deserve the epithet of gross;' and this statement is emphatically endorsed in the case of the Steamboat New World v. King, 16 How. U. S. Rep. 474, as resting not only on public policy, but on sound principles of law.
"In Redfield on Rail. § 149, note 5, the author says: ' If the degree of care and watchfulness is to be in proportion to the importance of the business, and the degree of peril incurred, it is scarcely possible to express the extreme severity of care and diligence which should be required in the conduct of passenger trains upon railways.'
"So in Hegeman v. Western R. R. Co., 3 Kernan Rep. 9, it is held that the same precautions required in running a stage-coach at the rate of six miles the hour would not be the test for a railroad car running thirty or forty miles the hour; and a similar view is adopted in 1 Smith's Leading Cases (5th Am. ed.), 328; note to Coggs v. Bernard.
" The measure of the care and diligence required of carriers of passengers as laid down in Story on Bailments, Greenleaf's Evidence, Kent's Commentaries, and Redfield on Railways, as before cited, is fully sustained by the American cases.
"In Stokes v. Saltonstall, 13 Peters' U. S. Rep. 181, the instructions to the jury were that it was incumbent on the defendant to prove that in managing the coach the driver acted with reasonable skill, and with the utmost prudence and caution, and that if the injury was occasioned by the least negligence or want of skill or prudence on his part, the defendant was liable; and on error these instructions were held to be correct, the court saying that the undertaking is that as far as human care and foresight oan go the carrier will transport the passengers safely.