inconvenience and loss to persons traveling over the railroad, or those having freights transported over it, in cases of exclusion of drays and wagons from its grounds other than those owned by the person having the exclusive right to enter the railroad's depot grounds. To concede the right claimed by the railroad in the present case would be, in effect, to confer upon the railroad company the control of the transportation of pas sengers beyond its own lines, and, in the end, to create a monopoly of such business, not granted by its charter, and against the interests of the public." This view of the law seems to prevail in Indiana,37 Kentucky,38 Michigan,39 Missouri,40 Mississippi,41 Montana,12 and possibly Illinois.43 But even under this view, a railway company has the right to designate the place abutting on the platform where competing hackmen shall stand their vehicles while awaiting the arrival and departure of trains, and where they shall receive and discharge passengers and baggage.44 Sec. 946. Power of railway company to grant exclusive access to its terminal wharf to favored steamboat line.-An analogous question to that just considered is whether a railroad company, having a terminal wharf on a navigable stream or other body of water, has a right to allow one steamboat line exclusive access to that wharf to the prejudice of competing 37. Railroad Co. v. Doan, 153 Ind. 10, 53 N. E. Rep. 937, 45 L. R. A. 427. 38. McConnell v. Pedigo, Ky. 465, 18 S. W. Rep. 15. Mont. 419, 24 Pac. Rep. 209, 18 43. The general expressions in 39. Kalamazoo Hack Co. บ. Sootsma, 84 Mich. 194, 47 N. W. Rep. 667; Cole v. Rowen, 88 Mich. 219, 50 N. W. Rep. 138, 13 L. R. A. 848. 40. Cravens v. Rodgers, 101 64, 47 N. E. Rep. 146, 37 L. R. A. Mo. 247. 41. State v. Reed, 76 Miss. 211, 24 So. Rep. 308, 43 L. R. A. 134. 42. Railway Co. v. Langlois, 9 Lucas v. Herbert, 148 Ind. 376; Cole r. Rowen, 88 Mich. 219, 50 N. W. Rep. 138, 13 L. R. A. 848; Smith v. Railroad Co., 149 Pa. St. 249, 24 Atl. Rep. 304. steamboat lines. The majority of courts seem to hold that such an exclusive privilege cannot be granted, 45 but other courts seem to entertain the opposite view.46 The courts which maintain that such an exclusive privilege cannot be granted do so on the ground that the existence of such a right would lead to the legalizing of a monopoly. 4. Duty to keep roads, vehicles, etc., in repair. Sec. 947. (§ 524.) Duty as to roads when provided by themselves. Carriers who provide their own roads are bound to exercise the same degree of care in putting and keeping them in a safe condition as in the selection of and attention to the vehicles which they use upon them; and especially is this so in regard to railroads, the least defect in which may be attended by the most fatal consequences to passengers. As it is sometimes expressed, it is the imperative duty of such carriers to provide themselves not only with road-worthy vehicles, but with vehicle-worthy roads; and when an accident occurs by which the passenger has suffered an injury upon a road for the condition of which the carrier is responsible, it will be as necessary for him, in order to exculpate himself, to show that his road was in complete order, as to show that his 45. Indian River Steamboat Co. v. East Coast Transportation Co., 28 Fla. 387; Macon, etc., R. Co. v. Graham & Ward, 117 Ga. 555; West Coast Naval Stores Co. v. Railroad Co., 121 Fed. 645, 57 C. C. A. 671. While a riparian owner on a navigable stream may construct a wharf and maintain it for his own exclusive use, if he permits others to generally and habitually use it, and such wharf commands the exclusive means of communication with the waterway, it becomes impressed with a public interest and cannot, by being purchased or leased by a particular carrier, be trans formed into private property so as to exclude the public or other carriers from using it on the payment of reasonable wharfage charges. Weems Steamboat Co. v. People's Steamboat Co., 141 Fed. 454. 46. Alexandrie Bay Steamboat Co. v. Railroad Co., 45 N. Y. Supp. 1091, 18 App. Div. 527; Ilwaco Ry. & Nav. Co. v. Oregon, etc. Ry. Co., 57 Fed. 673, 6 C. C. A. 495, 15 U. S. App. 173, reversing 51 Fed. 611. (But in this case the Oregon Short Line & Nav. Co. controlled both the railway and the steamship line connecting with the wharf in question, so that it is vehicle was without defect, or that if defective it was so without his knowledge, and in such a manner that the fact could not have been discovered by inspection. The highest degree of care will therefore be required of railway companies in the construction of their road-beds, without stability in which the necessary superstructure must necessarily be infirm.47 But the same qualification as to the diligence to be required of such companies, in regard to the character of their vehicles, applies with the same force to the diligence and care which are required to be exercised in regard to their roads, and that is that such a degree of care, diligence and expense will not be required of them as to make the business of the carriage of passengers wholly impracticable, or so responsible and expensive as to drive from it all prudent men.48 questionable whether it is op posed to the cases cited in the preceding note.) v. 47. Virginia, etc. R. R. Sanger, 15 Gratt. 130; McElroy v. The Railroad, 4 Cush. 400; Oak land R. R. v. Fielding, 48 Penn. St. 320; O'Donnell v. The Railroad, 59 id. 239; Railway Co. v. Watson's Adm'r, 93 Ky. 654, 21 S. W. Rep. 244, 40 Am. St. Rep. 211, 19 L. R. A. 310; Libby v. Railroad Co., 85 Me. 34, 26 Atl. Rep. 943, 20 L. R. A. 812; Railroad Co. v. Kuhn, 107 Tenn. 106, 64 S. W. Rep. 202, citing Hutch. on Carr.; Davis v. Railroad Co., 93 Wis. 470, 67 N. W. Rep. 16, 57 Am. St. Rep. 935, 33 L. R. A. 654; Gleeson Railroad Co., 140 U. S. 435, 11 Sup. Ct. R. 859; Cain v. Railroad Co., S. Car. S. E. Rep. 244. V. 54 48. Pittsburg, etc. R. R. v. Thompson, 56 Ill. 138. In Grand Rapids, etc. R. Co. v. Huntley, 38 Mich. 545, Campbell, C. J., said: "The road, if in such a condition as would be regarded as safe by railroad men of usual intelligence and experience, could not be complained of for any possible deficiencies which would not be regarded by competent persons as existing." In Railroad Co. v. Crumpler, 122 Fed. 425, 59 C. C. A. 51, the following instruction of the trial court to the jury was held substantially correct: "That while the duty rested upon the defendant company, as a carrier of passengers, to exercise the highest practical care to provide a safe road-bed, sound ties, and strong rails securely laid, and safe cars wherewith to transport the plaintiff, and that if it was guilty of negligence in any one or all of these particulars the plaintiff might recover, provided the injury of which he complained was the direct result of one of such acts of negligence, yet that the duty resting upon the defendant as a carrier of passengers did not Sec. 948. Same subject-Not liable for defect in road caused by accident which could not have been foreseenStorms, floods, snow-slides, etc.-But the carrier, in maintaining its roadbed and tracks, is not required to provide against extraordinary and inevitable casualties, such as unprecedented storms, floods and the like, which cannot reasonably be foreseen and anticipated by that degree of engineering skill and experience required in the prudent construction of its road. And the test of the carrier's liability is not whether it exercised such particular foresight as afterwards appears might have averted the accident, but whether it exercised that degree of care which very cautious and prudent persons engaged in the same business would have exercised under the circumstances as they appeared at the time.49 Thus where a railroad company was sued for an injury incurred by the plain compel it to exercise all the care and diligence the human mind could conceive of, nor such care as would render the transportation of passengers free from any possible danger to them, nor such as would drive the carrier out of business; that the carrier, for instance, was not required to lay iron or granite cross-ties simply because such ties were less liable to decay, and hence safer than wood; that it was required to exercise the highest degree of practical care, diligence, and skill, but that there were some casualties which human sagacity could not guard against and foresee, and that every passenger must make up his mind to meet the risks, incident to the mode of travel which he adopts, that cannot be avoided by the highest degree of care and skill in the preparation and management of the means of conveyance, and to submit to the privations and re straints and conform to the provisions which might be made and enforced for his safety and protection." 49. Libby v. Railroad Co., 85 Me. 34, 26 Atl. Rep. 943, 20 L. R. A. 812; Railway Co. v. Chalifoux, (Can.) 22 S. C. R. 721; Railroad Co. v. Pilgrim, 9 Colo. App. 86, 47 Pac. Rep. 657; Railroad Co. v. Andrews, 11 Colo App. 204, 53 Pac. Rep. 518; Railroad Co. v. Marshall, 90 Va. 836, 20 S. E. Rep. 823. tiff as a passenger, in consequence of the washing away of a part of its track by an extraordinary flood, it being shown that the track had been constructed about five years before the accident, and during that time had withstood all ordinary floods, and that, in the particular instance, the accident had occurred to the train whilst running at night, and when its officers were wholly in ignorance of the damage to the track, the court saw in the case no evidence of negligence, but argued, from the fact that the road had resisted the action of ordinary storms for so long a time, that it had been constructed with ordinary care.50 And in another case it was held that a railway company was required to construct its road so as to be sufficient to resist all such violence of weather as might be reasonably expected, even though rarely, to occur in the climate or locality through which it ran, and that the fact that it had given way to any such violence would be prima facie evidence of its insufficiency; but that where the company had employed skilful engineers, and used all ordinary precautions in its construction, and the break was caused by an unusual storm, it was held that the jury, to which the case was submitted upon the question of negligence, were justified in their verdict for the company.51 Sec. 949. ($ 526.) Same subject-Liability for unsound rails, defective switches, etc.-So any carelessness or negli gence in the use of unsound rails, ill-constructed switches, or any of the subsidiary appointments of the road, will make such carriers liable for any injury to a passenger which can be traced to such an imperfection or defect, and the cases are liable for the giving way of an embankment due to the floods from an unprecedented rain. But accidents due to excavations in the railroad right of way (Smedley v. Railway Co., 184 Pa. St. 620, 39 Atl. Rep. 544) or to damage from floods in a locality noted for heavy rains and floods (Cobb v. Railway Co., 149 Mo. 609, 50 S. W. Rep. 894) can hard- 50. Withers V. The Railway ť. 51. Great Wes. Railway Braid, 1 Moore, P. C. (N. S.) 101. |