numerous in which their liability has been made to depend upon their inattention to the unfitness of such portions of their roads. And if an accident, from which an injury results to the passenger, be attributable to a defect in any of these things, whether a part of the road itself or used in connection therewith and constituting a part of the apparatus for his conveyance, the carrier will be liable if, by the strictest diligence, it might have been discovered or known and remedied by its agents.52

care and skill, it is the duty of the carrier to discover them and to thereby avoid danger to its passengers. Railway Co. v. Lewis, 145 Ill. 67, 33 N. E. Rep. 960, affirming 48 Ill. App. 274.

52. McElroy v. The Railroad, be discovered by the exercise of 4 Cush. 400; Reed v. The Railroad, 56 Barb. 493; Toledo, etc. R. R. v. Apperson, 49 Ill. 480; Chicago, etc. R. R. v. Taylor, 69 id. 461; Curtis v. The Railroad, 20 Barb. 282, 18 N. Y. 534; Balti more, etc. R. R. v. Worthington, 21 Md. 275; Taylor v. Day, 16 Vt. 566; Nashville, etc. R. R. v. Messino, 1 Sneed, 220; Fletcher v. The Railroad, 1 Allen, 9; Eaton v. The Railroad, 11 id. 500; Railway Co. v. Mitchell, 57 Ark. 418, 21 S. W. Rep. 883; Whittlesey v. Railway Co., 121 Iowa, 597, 90 N. W. Rep. 516, 97 N. W. Rep. 66; Railroad Co. v. Sandusky, 14 Ky. L. Rep. 767; McCafferty v. Railroad Co., 193 Pa. St. 339, 44 Atl. Rep. 435, 74 Am. St. Rep. 690; Nickles v. Railway Co., S. Car.

54 S. E. Rep. 255.

As to a railroad's liability for rotten ties, see, Railway Co. v. Watson's Adm'r, 93 Ky. 654, 21 S. W. Rep. 244, 19 L. R. A. 310, 40 Am. St. Rep. 211; Davis v. Railroad Co., 93 Wis. 470, 67 N. W. Rep. 16, 57 Am. St. Rep. 935, 33 L. R. A. 654.

It is not enough that the track is "apparently" in good and safe condition. If there are defects rendering it unsafe, which might

In McCafferty v. Railroad Co., 193 Pa. St. 339, 44 Atl. Rep. 435, 74 Am. St. Rep. 690, it appeared that the accident was caused by a broken rail. The rail had been in use for 16 years as the outside rail on a sharp curve, and had been worn by the flanges of the car wheels so that its weight had been reduced from 60 to 55 pounds per yard. It had been broken some months before the accident, and had been repaired by the use of splices or side bars, and admittedly it was greatly weakened by both the wear and the fracture. In view of this testimony the court said it was idle to say that the case could have been withdrawn from the jury.

In Railway Co. v. Watson's Admr., 93 Ky. 654, 21 S. W. Rep. 244, 19 L. R. A. 310, 40 Am. St. Rep. 211, where the plaintiff sought to show that the ties at the place where the accident occurred were rotten, the court held that the condition of the

Sec. 950. (§ 527.) Same subject-No liability when injury caused by a stranger.-In such cases, however, the negli gence of the carrier is the gist of the action; and where the misfortune has been caused by the negligence or trespass of a stranger, for whose acts the company was not responsible, and no negligence in anticipating the act or in preventing its consequences can be charged to the carrier, it will not be held accountable. Thus where the track of the road had been in good order up to the time of the mishap, which was caused by the displacement of some of its rails by some evil-disposed person at night, and. immediately before the train's arrival at the spot, with a reckless design to cause damage to the road, and under such circumstances that the agents of the road, with road bed at the place of the acci- ing which the defendant contindent (when there was some evidence tending to show that the accident was caused by a defective track) or in the immediate vicinity could be shown to prove the condition of the track at such place.

ued to so operate its road, there can be found very little substantial reasons for saying that one injured by the derailment of a train caused by one of the rails becoming thereby broken could not charge negligence, and, in On rehearing in Whittlesey v. making proof thereof, ought to be Railway Co., 121 Iowa, 597, 90 N. restricted to the condition of the W. Rep. 516, 97 N. W. Rep. 66, particular rail which happened to the court said: "Generally speak- be the immediate cause of the ing, proof that a particular rail accident. The duty of the dewas defective could not be made fendant was to construct and out by showing that other rails maintain a track sufficient for had become broken. But another the operation of its trains therequestion altogether is presented over, and in this respect the highwhen, as here, it is sought to est degree of care was imposed show by proof of repeated break- upon it. This is elementary. ings that all the rails were de- See 6 Cyc. 619, and cases cited. fective in the sense that they Now, the charge made being that were insufficient in size and the track was not so constructed weight to bear up the engines or maintained, we think that ev and trains in use. Certainly, if idence of the breaking of rails it should be made to appear that at other nearby points on the line the rails in use were so light, of the road, where the conditions and the trains operated so heavy, generally were the same as at that in extreme weather frequent the point of the accident, was breakings occurred, notwithstand- competent."

the utmost care, could not have known of the danger, it was adjudged that the company could not be held liable.1

But since the duties resting upon the carrier's servants are required to be performed by the servants themselves, if such a duty is performed by a third person, either at the request of a servant or with his acquiescence, the act will be considered as that of the servant himself, and the carrier will be liable for any injury resulting from its negligent performance. So, it is the duty of the servant to prevent officious intermeddling with his duties, when such intermeddling is known to him, and the fact that an intruder is not requested by the servant to perform a certain service cannot excuse the master for its negligent performance, where the servant could have prevented the intruder from undertaking the service. To hold otherwise

1. Deyo v. Railroad Co., 34 N. Y. 9. See also, Railroad Co. v. Herold, 74 Md. 510, 22 Atl. 323, 14 L. R. A. 75.

In an

track by throwing the main switch, and there being nothing to their movement, the retard freight cars rolled of their own In Fredericks v. Railroad Co., momentum upon the main track, 157 Pa. St. 103, 27 Atl. Rep. 689, crashed into the train in which 22 L. R. A. 306, the plaintiff's the plaintiff's intestate was sitintestate was sitting in a pas- ting, causing his death. senger car on the main track of action to compel the company to the defendant's railroad. A short respond in damages for the ala leged wrongful death, the court, way from the car there was side track inclining toward and in its opinion, said: "The ques connecting with the main track tion in this case is whether the by The defendant's defendant company was bound, in switch. a servants had run several freight the exercise of its duty of excars onto the side track and, in- traordinary care, to take extraortending that they should remain dinary precautions against the there for a time, fixed securely grossly criminal acts of strangthe brakes and opened the switch so that in case the freight cars should by any chance loosen and run toward the main track, they the would through open switch and upon the ground. While so secured, a mischievous stranger procured a coupling pin and bent open the brakes, connected the side track with the

run

ers.

There is no duty resting upon any person to anticipate wrongful acts in others, and to take precautions against such acts; much less the duty of presuming that another may be a The rule that the wrongdoer. carrier is bound to exercise the highest degree of care that is possible to human foresight and

would be to abrogate the rule governing the carrier's liability.2

Sec. 951. (§ 528.) Same subject-Liability for not discovering defect. It therefore sometimes becomes important to ascertain whether a defect previously existed to which the accident is to be attributed, and which the company had the opportunity to discover and to remedy, or whether the accident occurred without any previously existing defect, such as it would have been negligence in the company not to discover. If, for instance, a rail apparently sound should, in the very act of being passed over by the train, break and occasion an injury without negligence on the part of the company in not having previously discovered its weakness, the company would not be liable; but if it had been broken before the accident by another train, and time had been afforded the company to discover the fact, it would be obnoxious to the charge of negli gence and would be liable to the injured passenger.3 Both the questions arose in the case of McPadden v. The Railroad, the

prudence, does not require a construction that will make the carrier an insurer against accidents; nor the prevention of accidents by the employment of means, which, if the accident could have been foreseen, might have been used to prevent it; nor for the wrongful acts of strangers unless the carrier was remiss in not discovering them in time to avert the injury; nor for an impracticable character or extent of precaution which could not be observed without so ruinous a cost as to destroy the business; and in all cases the liability is only such as results from negligence. If the purpose and the act were criminal, and were those of a stranger, and could not have been foreseen by any human skill or knowledge, the duty of precaution against such acts does not arise,

and negligence does not result from the want of such precautions."

2. Dimmitt v. Railroad Co., 40 Mo. App. 654, citing Hutch. on Carr.

3. Where an accident happens because of the breaking of a carwheel, not attributable to the fault of the company, the latter is not liable because a passenger had told the conductor that he had heard an unusual sound and felt a jar, and the conductor made such examination as he could without stopping the train, though if it had been stopped the broken wheel would have been discovered. Frelson v. Southern Pac. Co., 42 La. Ann. 673, cited in 7 So. Rep. 800 as Irelson v. Southern Pac. Co.

4. 44 N. Y. 478.

contention of the plaintiff being that the rail, the breaking of which caused the accident, had really been broken by another train which had run over it a few minutes before the one in which he was a passenger. But it was held that even if that were so, sufficient time and opportunity had not been given the road to discover and repair the defect before the happening of the accident from which the plaintiff was the sufferer.

Sec. 952. (§ 529.) Responsibility for not adopting useful improvements which may promote the safety of the passenger. -Carriers of passengers may also become chargeable with negligence by a failure to adopt such known and generally used inventions and improvements, in the manner of the construction of their vehicles, as conduce to the safety of passengers by their modes of conveyance; and the same requirement is made as to the construction and general equipment of their roads of those carriers who build and are responsible for their condition. But while the law demands for the safety of the passenger the utmost care, it will not hold the carrier accountable for the use of every possible means to prevent injury which the highest scientific skill might have brought to bear, nor for the employment of every device which ingenuity might

5. Smith v. The Railroad, 19 N. Y. 127, 6 Duer, 225; Hegeman v. The Railroad, 16 Barb. 353, 13 N. Y. 9; Caldwell v. The Steamboat Co., 47 N. Y. 282; Baltimore, etc. R. R. v. The State, 29 Md. 252; Meier v. The Railroad, 64 Penn. St. 225; Nashville, etc. R. R. v. Messino, 1 Sneed, 220; Nashville, etc. R. R. v. Elliott, 1 Cold. 611; Costello v. The Railroad, 65 Barb. 92; Unger v. The Railroad, 51 N. Y. 497; Taylor v. The Railway, 48 N. H. 304; Toledo, etc. R. R. v. Conroy, 68 Ill. 560; Jack son v. The Railway, L. R. 2 Com. P. D. 125.

Whether it is negligence not to have a chain across the space be

tween the railings on the rear platform of a passenger car in a mixed train is a question for the jury. Newton r. Railroad Co., 80 Hun, 491, 30 N. Y. Supp. 488.

There is evidence that a step on a stage coach is defective, sufficient to make the question of negligence one of fact for the jury, when it is shown that the plaintiff was injured while entering defendant's stage by his foot slipping through the open step thereon; that both open and closed steps were in use on stages, and that closed steps were safer. Frobisher v. Transportation Co., 81 Hun, 544, 30 N. Y. Supp. 1099.