13 N.Y. 9 | NY | 1855
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *24 It has been said that every wayfarer must take the risks incident to the mode of travel he adopts, but these risks are only those which cannot be avoided by the carrier of passengers by the utmost degree of care and skill in the preparation and management of the means of conveyance. (Angel on Com. Carr., § 523.) The carrier, in the language of other judges, is bound to use all precautions, as far as human care and foresight will go, for the safety of his passengers. (2 Kent., 602, 7th cd., andcases cited.) In the application of these principles, it is obvious that the same precautions will not exonerate the carrier of passengers from responsibility in every mode of travel. The foresight and preparation that would suffice to satisfy the rule in one species of navigation or conveyance, would not answer in another; and the external examination, which, in connection with the reputation of the builder of a stage coach, would and ought to satisfy the scruples of the most cautious person, as to the safety and security of a vehicle designed to run from six to eight miles the hour, would not satisfy any reasonable man as to the sufficiency of another intended to sustain a far greater weight, and to be propelled by steam thirty, forty or fifty miles in the same time. The charge of the learned judge, at the trial, assumes and proceeds upon this distinction throughout; and in that part of it where he gives the measure of the responsibility of the defendant, in the strongest terms against him, and in favor of the plaintiff, he says, "that although the defendant purchased his axles and cars of extensive and skillful manufacturers, who, in the exercise of their skill, knew of no test, and used no test to *25 discover latent defects in axles, yet, if there were any tests known to others, and which should have been known and employed by the manufacturers, as men professing skill in their particular business, although the same may not have been used by some others engaged in the same business defendant was guilty of negligence in not using this test, provided the injury occurred to the plaintiff by reason of a defect, which, by such test, might have been discovered. The substance of the charge was, that although the defect was latent, and could not be discovered by the most vigilant external examination, yet, if it could be ascertained by a known test, applied either by the manufacturer or the defendant, the latter was responsible.
In these instructions, there was no error. Ingalls v. Bills (9 Metcalf, 1), cited by the defendant's counsel, was the case of a stage coach, in which the injury was occasioned by the breaking of the axle; the fracture was internal, and surrounded by sound iron, one-quarter of an inch thick; the court held, that where the accident arises from a hidden and internal defect, and which could not be guarded against by the exercise of a sound judgment, and the most vigilant oversight, then the proprietor was not liable for the injury I concur in that decision, in the particular case presented; but the learned judge did not intimate "that a sound judgment and the most vigilant oversight" would be evidenced, by the adoption of the same methods of examination in the case of a stage coach and a car for the express train of a railroad. The mode of construction, the purposes to be subserved, and above all, the probable consequences of a hidden defect in the two cases, are altogether different. It might as plausibly be urged, that a chain for agricultural purposes and the cable of a ship of the line should be subjected to the same tests, because both were chains and each manufactured of the same material. Keeping the distinction indicated in view, the charge was sufficiently favorable to the defendant. *26
Two questions were presented for the consideration of the jury. First, was there a test known to and used by others, and which should have been known to a skillful manufacturer, by which the concealed defect in the axle of the car could have been detected; and if so, then, secondly, was the injury to the plaintiff the consequence of that imperfection? There was evidence tending to establish these facts, which the jury have found; and the question returns, can the defendant, who neither applied the test, or caused it to be applied by the manufacturer, insist that this accident could "not have been avoided by the utmost degree of care and skill, in the preparation of the means of conveyance," or "that they used all precautions, as far as human care and foresight would go, for the safety of the plaintiff, as one of their passengers?" It seems to me that there can be but one answer to the question.
It was said that carriers of passengers are not insurers. This is true. That they were not required to become smelters of iron, or manufacturers of cars, in the prosecution of their business. This also must be conceded. What the law does require is, that they shall furnish a sufficient car to secure the safety of their passengers, by the exercise of the "utmost care and skill in its preparation." They may construct it themselves, or avail themselves of the services of others; but in either case, they engage that all that well directed skill can do has been done for the accomplishment of this object. A good reputation upon the part of the builder is very well in itself, but ought not to be accepted by the public, or the law, as a substitute for a good vehicle. What is demanded, and what is undertaken by the corporation, is not merely that the manufacturer had the requisite capacity, but that it was skillfully exercised in the particular instance. If to this extent they are not responsible, there is no security for individuals or the public.
It is perfectly understood that latent defects may exist undiscoverable by the most vigilant examination, when the *27 fabric is completed, from which the most serious accidents have and may occur. It is also well known, as the evidence in this suit tended to prove, and the jury have found, that a simple test (that of bending the iron after the axle was formed and before it was connected with the wheel), existed, by which it could be detected. This should have been known and applied by men "professing skill in that particular business." It was not known, or if known, was not applied by these manufacturers. It was not used by the defendant, nor did they inquire whether it had been used by the builders. They relied upon an external examination, which they were bound to know would not, however faithfully prosecuted, guard their passengers against the danger arising from concealed defects in the iron of the axles, or in the manufacture of them. For this omission of duty, or want of skill, the learned judge held, and I think correctly, that they were liable.
This is the only important question in the cause. The requests of the defendant's counsel to the judge for instructions to the jury, were intended to present this principle point in its strongest aspect for the defendant; and all the exceptions are determined, if the above suggestions are well founded.
The evidence of the utility and use of the safety beam was properly admitted. It had been used in New Jersey eleven years before this accident, and upon some of the Albany and Buffalo roads, from the latter part of the year 1846; and in 1851 was introduced upon the road of the defendant. Whether the adoption of this improvement, under all the circumstances, was a necessary or proper precaution on the part of the defendant, was correctly submitted to the jury.
The judgment of the supreme court should be affirmed.
JOHNSON, HAND, CRIPPEN and DEAN, Js., concurred in the foregoing opinion. *28
Dissenting Opinion
In his charge, the learned justice first told the jury, that if the defendant exercised all the care and diligence which he could reasonably exercise in providing a safe track and a safe engine and cars, and properly supplied their train with a suitable number of competent and faithful men to take charge of it, and those men managed the train in a careful and skillful manner, the defendant was not liable. This instruction was given in the form desired by the defendant. In a subsequent part of the charge, the judge instructed the jury, that the defendant was responsible for any defects which were known to the manufacturer, or which might have been discovered by him upon a vigilant and careful examination of the axle, or which, after delivery, might have been discovered upon a like examination by a competent person; that the reputation of the manufacturer should be taken into consideration with the other circumstances, but would not alone absolve the defendant from responsibility. The defendant excepted to this part of the charge.
The car, the axle of which was broken, was manufactured by the Springfield Car and Engine Company, for the defendant; this company manufactured cars for many railroad companies. It procured the axle that broke in the present case, from Ames' factory, an extensive manufactory of iron. I do not understand that the Springfield Car and Engine Company, or Ames or his factory, were in any sense the servants or agents of the defendant; the latter worked in iron and made axles and sold them to the manufacturers of cars or to railroad companies; and the former manufactured to order, cars, c., for railroads. As I understand the charge, the defendant was to be held responsible for any defects in the axle which were known to the manufacturer, or which might have been discovered by him upon a vigilant and careful examination; it is added, "or which after delivery, might have been discovered upon a like examination by a competent person." The judge further charged *29 that as to the materials of which the axle was made, if they were not of a proper quality, or wrought in a proper manner, and the defects were of that character that they could have been discovered upon a vigilant examination by a person of competent skill, either at the time of the construction or afterwards, then the defendant was responsible for the consequences. He also charged, that the defendant was responsible for all defects in the axle which might have been discovered and remedied, to the same extent as if the defendant had manufactured said axle in its own work shop and by its immediate agents. The charge takes the position that the defendant was responsible for any defect in the axle, whether of materials, workmanship or otherwise, which were known, or might have been discovered by the manufacturer upon a vigilant and careful examination at the time of construction or afterwards. In other words, the defendant was made surety for the skill and extraordinary care and vigilance of the manufacturers; and if, in fact, a defect existed or happened at the time of construction, which could have been detected by the manufacturer, though such defect was secret at the time the defendant purchased and used the axle and not discoverable, still the defendant would be liable for the want of care on the part of the manufacturer. In my opinion this position cannot be sustained unless we are prepared to hold that railroad companies shall be held liable for all defects, whether discoverable or not, thus making them warrantors of the road-worthiness of their cars, c. The manufacturers of the axle and the car were not the servants or agents of the defendant; they pursued an independent business, and for any want of care or skill, or for negligence they were liable. It would, in my opinion, be very dangerous to establish the rule, that he who purchases and uses an article manufactured by a mechanic, shall be responsible for any injury to third persons in consequence of a defect in the article, not discoverable by the purchaser and user. Such a principle would be far *30 reaching, and it is not possible now to consider and fix a limit to the cases to which it would apply. It goes entirely beyond the rule making every one responsible for his own negligence and the negligence of his servants and agents.
In Stevens v. Armstrong (2 Seld., 435), it was held by this court, that to render one person liable for the negligence of another, the relation of master and servant, or principal and agent must exist between them. In the present case, it is argued, that the charge of the judge is not in conflict with the case just cited; that it does not make the defendant liable for the neglect of the manufacturer, but for its own neglect in not doing or causing to be done what human care and foresight could have done to discover and remedy the defect in the construction of the car in question. Does not this proposition involve the responsibility of the defendant for any want of care or for any neglect in the manufacturer, though such want of care or neglect could not be detected after the car was completed and when it was put in use? As I understand the judge, he made the defendant liable for any defect happening during the construction of the car and axle, which could have been detected by the manufacturer, though it could not be detected by the defendant after the car and axle were completed. I agree that the defendant should be held to the exercise of the utmost care and diligence. I think, in Ingalls v. Bills and others (9 Met., 1), the proper distinction was made, and the true principles were established. In that case, decided in 1845, all the English cases were reviewed and the American cases referred to, and I shall content myself with this reference to that case, adopting the reasoning of the court there, and applying it to the present case. I think the learned judge erred in the rule of responsibility, and that there should be a new trial.
Dissenting Opinion
I understand the effect of the charge to be, that the defendant is responsible in the *31 same manner which he would be if, besides managing the railroad, he was also the manufacturer of his cars and of all the parts of which they are composed, including the axles. The workmen of the iron manufacturers are to be regarded, according to the charge, as the servants of the railroad company, and it is responsible for the negligence of such workmen as for that of its immediate agents and servants. This, I think, cannot be sustained. If the defendant had chosen to commit to others the doing of things which its charter contemplated should be performed by the company, it might be estopped from alleging that such other persons were not its servants; but the manufacture of the passenger cars is a separate and distinct business, and the workmen employed in constructing them and the iron work composing their several parts, are not, in my opinion, in any proper sense the servants of the railroad corporation. The cases upon the point, have been mentioned by Judge Marvin, and it is only necessary to add to them those which are referred to in Smith'sTreatise on the Law of Master and Servant at page 164 and seq.
I am in favor of reversing the judgment of the supreme court.
Judgment affirmed.
