THE

AMERICAN LAW REGISTER.

NOVEMBER, 1861.

RAILWAY PASSENGER TRAFFIC.1

I. THE DEGREE of care REQUIRED OF RAILWAY COMPANIES.

1. No insurance of passengers, but only the utmost care, diligence, and skill. 2. The degree of care, &c., is always proportioned to the hazards of the business.

3. The fact that injury occurs on a railway, presumptive evidence of negligence 4. And it will make no difference that the passenger had a free ticket.

5. Unless it was conditioned to be at his own risk, or the passenger went in some unusual mode, for his own convenience.

II. THE POWER OF RAILWAY COMPANIES TO MAKE RULES AND REGULATIONS AFFECTING PASSENGERS.

1. They may exclude from their cars, stations, and grounds, persons having no business there, and control the conduct of those who have.

1A PRACTICAL TREATISE UPON THE LAW OF RAILWAYS. BY ISAAC F. REdfield, LL. D., Chief Justice of Vermont. Second Edition. Boston: Little, Brown & Co. We shall be excused for the frequent references which we make to this work, since the substance of our article is based upon its arrangement and analysis of the subject; and it would be scarcely less than an affectation to attempt to make it appear otherwise. The decided cases, too, as is well known, are so numerous, upon many of the points embraced in our article, that a particular reference to all would, far too much, encumber our pages. We have, therefore, contented ourselves with naming a leading case or two, either English or American, under each head; and referring the reader to the above work, where he may find all the cases which had been published at the date of the edition, carefully analyzed, with the precise point decided in each, abstracted.

VOL. X.-1

2. May discriminate between fares paid at stations and in the cars.

3. So also between way-fare and through-fare.

4. And may require passengers to go through in same train.

5. Or in a prescribed time.

6. May exclude merchandise from passenger trains.

7. And passengers may be required to pay five cents additional fare at each payment in the cars.

8. Servants of company may enforce the regulations in reasonable manner Their acts bind the company.

9. Company cannot enforce penalties, except by legislative provision.

10. May not make unreasonable restrictions as to baggage.

11. Should exclude mere intermeddlers from their grounds.

12. The law implies mutual contracts for safe transportation and good behavior. 13. And to deliver passengers in advertised time.

14. And to make advertised connections.

15. Must give proper notice of time and place of changing cars.

16. The rule of damages in the several cases above enumerated.

III. THE RESPONSIBILITY OF DIFFERENT COMPANIES FORMING CONTINUOUS ROUTE,

WHERE THEY SELL THROUGH TICKETS.

1. Not commonly regarded as a partnership.

2. But will be, if entire line is consolidated, and net fare divided rateably.

3. The responsibility for baggage is the same as for freight, and binds each company for the entire route.

4. But as to passengers it is the same as separate tickets for each road.

THE TRANSPORTATION OF PASSENGERS upon railways is one of the most extensive and important of the material interests of the country. There is no other, perhaps, which affects so large a number of persons, and at the same time is liable to become so essential to life, and health, and comfort, and every thing else, which makes up the sum of social happiness and enjoyment. We have thought. therefore, that we could not do a more essential service to the profession throughout the country, than by giving them a succinct and comprehensive analysis of the law applicable to that subject in its numerous departments. Nothing more than a brief resumé of the doctrines and decisions affecting its complicated and manifold relations, could be brought within our narrow limits. Its full discussion would require a volume, and one which we hope some time to welBut we trust we shall be able, within reasonable compass, give the outline of the most essential topics which will go to

.come.

า

make

up such a volume, devoted exclusively to the transportation

of passengers upon railways.

I. We begin with the degree of care required of railways in the transportation of passengers.

1. There is no actual insurance of the safe arrival of passengers at their destination without injury: Redfield on Railways, § 149, pl. 1, p. 323. The degree of care required of passenger carriers is well defined by EYRE, Ch. J., in Aston vs. Heaven, 2 Esp. R. 533. Carriers of passengers are not "liable for injuries happening to passengers, from unforeseen accident or misfortune, where there has been no negligence or default." "A driver is answerable for. the smallest negligence." If any degree of negligence have intervened in any of the particulars which go to make up the entire force and apparatus connected with passenger transportation, a liability for any evil consequences resulting therefrom will attach: Redfield on Railways, § 149, and cases cited.

2. The degree of care and watchfulness required in any particular business is to be proportioned to the importance and the hazards of such business. If the business be of the highest moment, then the care, diligence, and skill should also be of a similar character: Briggs vs. Taylor, 28 Vt. R. 180, 184; CURTIS, J., in Steamboat New World vs. King, 16 Howard U. S. R. 474; Redfield on Railways, § 149, note 5; Fletcher vs. Boston and Maine Railway, 1 Allen R. 9.

It is scarcely necessary to add, that when we consider the vast importance of railway transportation and its extreme peril and hazard to life and limb in case of accident, it is proper that the courts should require every precaution, to insure the safety of passengers, which study and skill can devise, or art accomplish. And there has generally been no backwardness in that particular hitherto manifested in the courts. And the complaints which have come from interested parties, as if the courts made it a rule to hold every railway company liable, when any loss or injury occurred, is certainly not so well founded in fact as one might affect to be lieve. And if most cases of accident are found to be the result of carelessness, it is not so wonderful if courts and juries hold a

men.

firm hand upon the companies. Jurors, who have the chief responsi bility in deciding these questions, are generally shrewd and sensiblo And if they have seemed to proceed upon any such rule, as that alleged, it has been because the manner of an accident occurring, in railway passenger trains, has generally demonstrated that some precaution, having a tendency to prevent the disaster, was omitted, and which, if it had been taken, would probably have secured the safety of all.

The familiar gossip of the companies and their employees, too, that railway transportation of passengers is the safest in the world, in proportion to the number exposed, has precious little foundation in truth, as applied to existing circumstances. And if it had, would be a mere evasion of the question. The inquiry is not how safe, comparatively, railway travelling now is, but how safe it may be made with proper care and skill. If railway travelling, then, with the existing want of care and skill, is still safer than any other, it only shows how entirely safe it is susceptible of being made. And if that be true, it exhibits the wrong of allowing such fearful accidents as now occur almost daily, in a most inexcusable point of light. The effort to escape such perils should be in proportion to their disastrous consequences. And the degree of safety which the Courts ought to require should be the utmost which is attainable within reasonable limits of expense.

The truth undoubtedly is that railway travelling, in this country, with single tracks and imperfect construction and equipment, is rendered astonishingly exempt from calamitous disasters. But, when we attempt to convince ourselves that, in its present state, it is less perilous than any other mode of conveyance; the wish is generally father to the thought. The number of accidents and disasters is, doubtless, diminished by it; but the fatal consequences of them, when they do occur, are immensely multiplied; and it is either a delusion, or an affectation, which would induce any one to argue the contrary. There are hundreds now killed, or rendered useless for life, by railway accidents, where one such case occurred in the former modes of travelling. It is the very frequency of such disasters that induces the public mind to look upon them in any