"To the general views thus expressed we perceive no objection. Indeed, it is quite manifest, we think, that in fixing upon a measure of the obligation of common carriers by railway to the travelling public, it is proper to consider how far it is reasonably practicable for them to go in view of the expenditures that might be required; and, looking at the subject as a whole, we think it could never have been intended to fix upon a measure of care that would render it practically impossible to continue this mode of transportation.
1 Long v. Horne, 1 Car. & Payne, 610.
"At the same time the standard of care and diligence for a particular railroad cannot be made to depend upon its pecuniary condition, or the amount of its earnings; but having undertaken to carry passengers in that mode, its duty is to provide a track, rolling stock, and all otber agencies suited to the nature and extent of the business it proposes to do; and the measure of its care and diligence is not to fluctuate with the changes in its revenues. A direction to the jury, therefore, that should make the degree of care required turn upon the pecuniary means of this particular road would be erroneous.
"The part of the charge particularly objected to is the direction that 'defendants must use such degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business.'
"This might, and probably would, be understood to require of the defendants all practicable care to the extent of their means, which would make the ability of the corporation the measure of the care and diligence required, and that obviously is not the true test, - and judging from other parts of the instructions it was not so intended, - still the terms used are so explicit that there is reason to fear that the jury may have been misled, and induced to require as a standard a higher degree of care and diligence than the law actually demands. It would be quite likely to be so. if it appeared that the corporation was receiving a large income from this business beyond the expenses. If, on the other hand, it appeared that the receipts did not equal the running expenses, the jury might feel at liberty to exact a lower degree of care and diligence.
"In respect to common highways it has been decided in this State that the standard by which their sufficiency is to be tested is not to be expanded or contracted by the wealth or poverty of the town: Winship v. Enfield, 42 N. H. 197, 208; and we think the same rule is applicable to the proprietors of railroads. They are bound to keep them in suitable repair, and to operate them with suitable care and diligence, considering the character and extent of the use to which they are applied.
"As before remarked, the passage under consideration is in terms much like the passage in 2 Redfield on Rail., 1S7; but upon a close examination of his statement it will not be found that the author intended to announce the doctrine that the degree of diligence was to be measured by the revenues of the particular railroad, but that in fixing a general standard of care and diligence there should not be so much required as to render this mode of conveyance impracticable.
"The objection to the passage in question now before us is the dancompany that there is no room for a passenger in the train. The carrier is bound to provide room, unless his contract is made conditional upon there being room.1 They are also bound to stop at the usual places;2 to remain there during the usual intervals for meals; and to take all precautions necessary to insure the safety of the passengers on the road.3 For this reason they may also be liable, in some cases, for an injury to passengers by the misconduct of other passengers, if the carrier has been negligent of his duty;4 for it is generally agreed that the negligence or misconduct of a third person contributing to the accident is no excuse for the negligence of the carrier.5 So the proprietor of a cab which is let by the day to a driver may be liable to a passenger for luggage lost by the carelessness of the driver.6 So, also, the proprietors of a stage-coach are responsible for the acts of the driver, who is their agent, and is bound to exercise fully competent skill.7 If injury result from his carelessness or unskilfulness, they are bound to indemnify the party injured in damages. Thus, if he drive with his reins so loose that he cannot manage his horses;8 or if he drive wilfully into dangerous places, and do ger that the jury may have understood that the defendants were bound to use all practicable care and skill to the extent of their means; and as we do not know that their means were not understood to be ample, we cannot be sure that the jury were not misled."
1 Long v. Horne, 1 Car. & Payne, 610.
1 Hawcroft v. The Great Northern Railway Co., 16 Jur. 196, 8 Eng. Law & Eq. 362.
2 Pennsylvania Railroad Co. v. Kilgore, 32 Penn. St. 292.
3 Crofts v. Waterhouse, per Best, C. J., 3 Bing. 319; Long v. Home, 1 Car. & Payne, 612; Israel v. Clark, 4 Esp. 259; Aston v. Heaven, 2 Esp. 533; Heard v. Mountain, 5 Petersdorff, Abr. Carriers, p. 54.
4 See Flint v. Norwich & N. Y. Transportation Co., 34 Conn. 554; 6 Blatchf. 158, a very interesting case.
5 Simmons v. New Bedford, etc. Steamboat Co., 97 Mass. 361, 368; Eaton v. Boston & Lowell Railroad Co., 11 Allen, 500; Pittsburg, etc. Railway Co. v. Hinds, 53 Penn. St. 512.
6 Powles v. Hider, 6 El. & B. 207 (1856); Morley v. Dunscombe, 11 Law Times, 199.
7 Peck v. Neil, 3 McLean, 22; Crofts v. Waterhouse, 3 Bing. 319, 321. See McElroy v. Nashua, etc. Railroad, 4 Cush. 400.
8 Aston v. Heaven, 2 Esp. 533. See, also, McKinney v. Neil, 1 McLean, 540; Cotterill v. Starkey, 8 Car. & Payne, 691.
not take the safest course;1 or if he drive furiously, or race with other vehicles,2 or excite vicious or unbroken horses, so that they cannot be stopped or properly directed;3 or if, through intoxication, he cannot guide his horses;4 and even if, in consequence of his imprudence or unskilfulness, the lives of the passengers be endangered, and any one, through reasonable fear, leap from the coach, and injure himself thereby, - the proprietors are liable.6 So, also, the coachman is bound to give notice of danger in any part of the road, and to observe the usage of the road in passing other vehicles.6 So, also, the passengers must be carried to the end of the journey, and put down at the usual stopping-place, or at any particular stopping-place, if it be either agreed upon specially, or if it be the usage to leave the passengers where they wish.7 And if the contract be to put down a passenger at a particular place, the danger of so doing is no excuse for not doing so.1 Nor is the duty of carriers in this respect diminished by any accident occurring to the vehicle or horses; for their undertaking is absolute, and they must, therefore, provide another conveyance or other horses, in case accident happens to their own.2 The carrier is also bound to make a proper delivery of the luggage at the end of his journey, if the passage money be paid.3 Their liability, as common carriers, as to the luggage, expires, if it be not demanded within a reasonable time, and they become mere bailees for hire.4 The carrier must also give sufficient time to alight, having due regard to the aged, the infirm, and the crippled.5