14 N.Y.S. 13 | N.Y. Sup. Ct. | 1891
The plaintiff, a young girl of 14 years of age, was a passenger by one of the cars of the defendant on its street railway in the city of Rochester. The route pursued by the ear was along West Main street, crossing the Erie canal by a “lift bridge” constructed and owned by the state, and which formed a part of the highway. The bridge was raised and lowered by hydraulic machinery, but it seems that as originally constructed it was imperfectly balanced, and that counter-weights had been added in the form of iron troughs, loaded with pig iron, and suspended at the top of the bridge, some 18 feet from the floor, and directly above the carriage-way and railroad track. The mode of suspension is not very clearly described in the record, but it is sufficient to say that it depended for its security upon the strength of the welding of certain iron “stirrups” through which the troughs passed.. On the occasion of the passage of the car in which the plaintiff was seated the stirrup supporting the end of one of these troughs gave way, and the end of' the trough fell from its horizontal position, its entire load of loose pigs of iron slid out and were precipitated upon and through the roof of the car, and. one or more of them struck the plaintiff on the head and shoulder, inflicting: the serious injuries of which she complains.
The only question in the ease is whether the defendant is chargeable with, these results of the imperfect and unsafe construction of the bridge. The defendant’s contention to the contrary is based upon the fact that the bridge was not one of its own structures, being neither built not controlled by it; that it had no authority to reconstruct or repair it; and that,'even if it had such authority, the defect from which the accident resulted was one which would not have been disclosed upon reasonable inspection. We think this contention cannot be maintained, but that it is opposed to elementary principles, which determine the liability of common carriers of passengers. The fact, that the structure was not built or controlled by the defendant is immaterial.. It was adopted and employed by the defendant as one of the appliances by means of which its business of transporting passengers was carried on. Such-being the case, the defendant was chargeable with all the defects of the structure, whether original or resulting from wear and tear, whether latent or patent, to the same extent as if it had been constructed by the defendant itself, or owned and controlled by it. This conclusion results from the nature of the contract between the carrier and the passenger. That contract is to carry safely, barring accidents against which the utmost human skill and foresight are powerless to provide. This contract includes not merely an assurance that the utmost skill and foresight shall be employed to secure the safety of the passenger during the act of transportation, but a guaranty that the same degree of skill and foresight has been employed in the selection and.