§ 961. The rights, duties, and obligations of carriers of passengers differ from those of common carriers in some respects. Their contract is not in the nature of an insurance, like that of common carriers; but although they do not warrant the safety of passengers, at all events, they are responsible for injuries and losses arising from even the slightest negligence, and they are bound to exercise the utmost care and diligence.1 Carriers of passengers are not, however, responsible for accidents, when the utmost care and diligence have been exercised.2 But the liability of carriers of passengers is said not to be founded on the contract to carry, nor to be dependent on any compensation paid for the service, but to be a duty imposed by law from motives of public policy, - the promise to carry safely being implied from the duty, and not the duty from the promise.3 Although, therefore, a passenger should
1 Christie v. Griggs, 2 Camp. 79; Farish v. Reigle, 11 Gratt. 697; Ingalls v. Bills, 9 Met. 1; Stokes v. Saltonstall, 13 Pet. 181; 2 Green-leaf on Evid. § 221; Story on Bailm. § 601; Farwell v. Boston & Worcester Railroad Co., 4 Met. 49. See the subject well examined in Derwort v. Loomer, 21 Conn. 245; Caldwell v. Murphy, 1 Duer, 235; Hegeman v. Western Railroad Co., 16 Barb. 353; Laing v. Colder, 8 Barr, 479; Eldridge v. Long Island Railroad Co., 1 Sandf. 89; Taylor v. Grand Trunk Railway Co., 48 N. H. 304 (1869).
2 Christie v. Griggs, 2 Camp. 79; Stokes v. Saltonstall, 13 Pet. 181; Taney, 11; Sharp v. Grey, 9 Bing. 457; Ware v. Gay, 11 Pick. 106, 112; Crofts v. Waterhouse, 3 Bing. 319; Aston v. Heaven, 2 Esp. 533. The rule of law on this subject is very well stated by Holmes, J., in Sawyer v. Hannibal & St. Joseph Railroad Co., 37 Mo. 240, and by Gray, J., in Simmons v. New Bedford Steamboat Co., 97 Mass. 361, 368.
3 See Steamboat New World v. King, 16 How. 469, and the editor's note to 1 American Railway Cases, p. 219, by Smith and Bates; Collett v. The London & North Western Railway Co., 16 Q. B. 984; 6 Eng. Law & be carried over a railway gratuitously, and by invitation of the president, the company would be equally liable as if they received a compensation, for any injury resulting to him certainly from the gross negligence of any of their servants, and, probably, even for any negligence.1 The same rule would also apply in case of an injury to one of the hands engaged to work a steamboat or railway carriage, or in fact to any one properly in the boat or carriage, whether a pecuniary consideration were paid or not.2 And it has even been held that a carrier is liable to one who is not a passenger, but who, from motives of humanity and without negligence, is injured in attempting to save the life of a person placed in peril by the negligence of the carrier.3 But a contract between a gratuitous passenger and the company, exempting them from liability, is valid; and in such case the passenger cannot recover for an injury received on the route,4 unless, as some courts hold, there be negligence in the officers of the corporation, and not merely in their servants and agents.5
§ 962. Where the carrier conveys passengers by the dangerous agency of steam, as on railways and by steamboats, it is said that he is bound to exert the greatest possible care and diligence, not only in the management of the carriages and trains, but also in the structure and care of the track and in all the subsidiary arrangements necessary to the safety of passengers;1 and that any negligence in such cases may well deserve the epithet of gross.2 Racing would, in itself, constitute such negligence as to render the carrier responsible in case of any injury from explosion, overturning, or collision resulting therefrom. So, also, it has been held that a railway company were responsible for an injury sustained by a passenger in their carriages, in consequence of the careless management of a switch, by which another railway connected with and entered upon their road, although the switch was provided by the proprietors of the other road, and attended by one of their servants at their expense.3
Eq. 305; Marshall v. York, Newcastle, & Berwick Railway Co., 11 C. B. 655; 7 Eng. Law & Eq. 519; Gladwell v. Steggall, 5 Bing. N. C. 733; Pippin v. Sheppard, 11 Price, 400. The carrier may indeed he sued in contract, but the plaintiff is not obliged to prove a contract to cany, though words of promise be alleged in the declaration. See Tattan v. Great Western Railway Co., 2 El. & E. 814; Pozzi v. Shipton, 8 Ad. & E. 963; Bretherton v. Wood, 3 Br. & Bing. 51; Ansell v. Waterhouse, 6 M. & S. 385; Marshall v. York, Newcastle, & Berwick Railroad Co., 11 C. B. 655; Orange Bank v. Brown, 3 Wend. 158; Govett v. Radnidge, 3 East, 62.
1 Nolton v. Western Railroad, 15 N. Y. 444; Todd v. Old Colony, etc. R. Co., 3 Allen, 18; Ohio & Miss. R. Co. v. Muhlins, 30 I11. 9. See Austin v. Great Western Railway Co., Law R. 2 Q. B. 442; Pennsylvania R. Co. v. Henderson, 51 Penn. St. 315.
2 Steamboat New World v. King, 16 How. 469, 474.
3 Eckert v. Long Island Railroad Co., 57 Barb. 555 (1870). See Lucas v. New Bedford & T. R. Co., 6 Gray, 64 (1856).
4 Wells v. New York Central Railroad Co., 24 N. Y. 181; Bissell v. New York Central Railroad Co., 25 N. Y. 442; Kinney v. Central Railroad Co., 3 Vroom, 407.
5 Perkins v. New York Central Railroad Co., 24 N. Y. 196.
§ 963. Inasmuch as negligence is the foundation of responsibility in a carrier of passengers, the burden of proof is upon the passenger claiming to recover against him, to establish negligence on his part. And the mere facts of an accident and injury do not impose the burden of disproving negligence on the carrier. But the mere circumstances of the case itself may be sufficient so clearly to indicate negligence as to make out a primÔ facie case against the carrier,4 and then it would be necessary for the carrier to prove that the accident was not caused by any negligence or fault on his part or on the part of his servants. The burden of proof is in the first place on the passenger to prove negligence, and the carrier is only bound to rebut such presumptions of negligence as arise from the mere facts of the case.6 Some cases hold that a