" In Massachusetts it is held that carriers of passengers are bound to use the utmost care and diligence to prevent the injury which human foresight can guard against. Ingalls v. Bills, 9 Met. 1, where it is said that the carrier is responsible for defects that might have been discovered upon the most careful and thorough examination. In McElroy and wife v. Nashua & Lowell R. R., 4 Cush. 400, it was held that the defendants were bound to the utmost exact care and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of the passengers. In Maine the carrier is held for such care as is used by very cautious persons. Edwards v. Lord, 49 Maine Rep. 279.
"In Connecticut the carrier is held for the highest degree of care of a reasonable man. Hall v. Conn. River Steamboat Co., 13 Conn. 320; Derwort and wife v. Loomer, 21 Conn. 253; Fuller v. Naugatuck R. R., 21 Conn. 557, 576. In Hadley and wife v. Cross, 34 Vt. Rep. 586. the doctrine of Ingalls v. Bills was applied to a livery-stable keeper letting a coach-driver overload his coach,1 or take more than the legal number, a passenger may refuse to take his seat, and may sue defective carriage; namely, that he was liable if the defect could have been discovered upon the most careful and thorough examination. So in New York, in Hegeman v. Western R. R., 16 Barb. 353, it is held that the carrier is bound to conduct his business with all the care which human prudence and skill could suggest; and the defendants were held liable for injuries caused by a defect in a car made by a competent manufacturer, which defect was not discoverable upon a thorough examination after the car was finished, but might have been before, by bending the axle in which the defect was, and thus holding the carriers liable for the neglect of the manufacturer, and this decision was affirmed in 3 Kernan, 9. In Caldwell v. Murphy, 1 Duer, 241, the charge of the judge that the law exacted of the carriers of passengers extraordinary care and diligence, and that they were liable for an injury unless it happened from pure accident, was held to be entirely correct, and that extreme care was required. In Camden & Amboy R. R. v. Burke, 13 Wend. 626, the court recognize the rule that the carrier is bound to the utmost care of very cautious persons.
"In Railroad Co. v. Aspell, 23 Penn. St. 147, it was held that a railroad was bound to exercise the strictest vigilance, and must carry their passengers safely, if human care and foresight can do it; and they are liable for any defect in the road, the cars, or the engines, or any other species of negligence whatever, of which they or their agents may be guilty. So is N. J. Railroad Co. v. Kennard, 21 Penn. St. 203.
"In Galena & Chicago R. R. v. Yarwood, 15 I11. Rep. 4G8, it is said that the current of authorities both in England and America is uniform in holding these carriers to the utmost prudence and caution; holding them liable for the slightest negligence, and that the diligence of cautious persons is not enough.
"In Galena & Chicago R. R. v. Fay, 16 I11. Rep. 558, it is held that the highest degree of care, vigilance, and skill are required, and that the carrier is responsible for the least neglect known to the law, short of insurance. In Frink v. Potter, 17 I11. 406, it was held that carriers of passengers are liable for slight neglect, and that the law imposes upon them the duty of carrying their passengers safely, so far as is reasonably practicable, and that they would be liable for injury by the breaking of an axle by reason of frost, if by extraordinary care and attention the danger might have been avoided. Similar views are also maintained in Frink v. Coe, 4 Greene, Iowa Rep. 555, and in Fairchild v. California Stage Co., 13 Cal. Rep. 599.
1 Derwort v. Loomer, 21 Conn. 246; and it is no excuse for the overloading of the coach that the carrier is accustomed habitually to do so.
"In McKinney v. Neil, 1 McLean, 540, it was held that a passenger carrier was not liable for casualties which human sagacity could not foresee, and against which the utmost prudence cannot guard; that the driver is bound to exercise the utmost care and must be skilful, and that the employer is responsible for the least degree of imprudence and want of care in the driver; and much the same is Maury v. Talmadge, 2 McLean, 157, holding that the carrier is bound to carry his passengers safely as far as human skill can accomplish that object, and is chargeable for the least negligence or want of skill or prudence.
"In our own State it is said, per Eastman, J., that railroads as carriers of passengers are liable for all damages that may arise to them from even the smallest negligence on their part, or that of their servants. Cornwall v. The Sullivan R. R., 28 N. H. 169. A similar statement is made in Clark v. Barrington, 41 N. H. 51.
"The authorities cited fully sustain the general view taken by the judge in his instructions to the jury, and the question is whether in the illustrations given there was any thing calculated to mislead them. The objection most urged is the statement that defendants must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business.
"This is substantially the language of Judge Redfield in 2 Railways, 3d ed. page 187, and is apparently based upon the idea that the rule calling for the utmost degree of care, vigilance, and precaution must be understood not to require such a degree of vigilance as will be wholly inconsistent with the mode of conveyance adopted, and render it impracticable. This is the doctrine of Tuller v. Talbot, 23 I11. 357, where it is also said that this rule does not require the utmost degree of care which the human mind is capable of inventing, as such a rule would involve the expenditure of money, and the employment of hands so as to render it perfectly safe, and would prevent all persons of ordinary prudence from engaging in that kind of business. But the rule does require that the highest degree of practicable care and diligence should be used that is consistent with the mode of transportation adopted.