boundaries of reason and justice, so as not to impose impracticable obligations. 1869 READHEAD v. MIDLAND It is now proposed to consider the authorities relied on as having a direct bearing on the question before us. The case which the RAILWAY Co. plaintiff's counsel relied on as the strongest in his favour is Sharp v. Grey. (1) But that case when examined furnishes no sufficient authority for the extensive liability which the plaintiff seeks to impose on the defendants. There the plaintiff was injured by an accident caused by the breaking of the axletree of a stage-coach. The defect might have been discovered if a certain examination had taken place, and it was made a question of fact at the trial whether it would have been prudent or not to make that examination. Tindal, C.J., at p. 458, who tried the cause, is reported to have directed the jury to consider " whether there had been on the part of the defendant that degree of vigilance which was required by his engagement to carry the plaintiff safely." Now, if the learned Chief Justice had supposed there was an absolute warranty of roadworthiness, this direction could not have been given, as it would have been an utterly immaterial consideration. The jury found, on this direction, for the plaintiff; and a motion was made in the absence of Tindal, C.J., for a new trial. Two of the learned judges (Gaselee and Bosanquet, JJ.) in refusing the rule, are certainly reported to have used expressions which seem to indicate that they thought the defendant bound to supply a roadworthy vehicle. Park, J., uses language which, as reported, is ambiguous. But the judgment of Alderson, J., is distinctly opposed to the notion of a warranty against latent and undiscoverable defects. He says, "A coach proprietor is liable for all defects in his vehicle which can be seen at the time of construction, as well as for such as may exist afterwards and be discovered by investigation." We have referred somewhat fully to this case, because it was put forward as the strongest authority in support of the plaintiff's claim which can be found in the English courts, and because it was relied on by the judges of the court of appeal in New York in a decision which will be afterwards referred to. But the case when examined furnishes no sufficient authority for the unlimited warranty now contended for. The facts do not raise the point for decision, and (1) 9 Bing. 457. 1809 READHEAD v. MIDLAND the authority of Tindal, C.J., and Alderson, J., is against the plaintiff. The dictum of Best, C.J., in Bremner v. Williams (1) was not RAILWAY CO. necessary to the decision of the case. The ruling of Lord Ellenborough in Israel v. Clark (2) was also relied on. Of these two last authorities Blackburn, J., in his judgment below (3) said, "These are, it is true, only nisi prius decisions, and neither reporter has such a character for intelligence and accuracy as to make it at all certain that the facts are correctly stated, or that the opinion of the judge was rightly understood." We find, also, that Best, C.J., makes observations in the opposite sense in the case of Crofts v. Waterhouse. (4) These are really the only English authorities which afford any support at all to the plaintiff's view, for the interpretation reported to have been given by Cresswell, J., in Benett v. Peninsular and Oriental Steam Packet Company (5) of the case of Sharp v. Grey (6) was only an observation made during an argument, when it was cited as incidentally bearing on the question then before the Court, and cannot be relied on as an authority. On the other hand, there is not only the plain distinction between the liabilities of carriers of goods and of passengers, constantly referred to by text writers and judges as well known and settled law, but numerous cases have been decided on grounds entirely at variance with the supposition that there existed contemporaneously with them the liability by way of warranty. In Aston v. Heaven (7), which was the case of an injury to a passenger, Eyre, C.J., after carefully pointing out the law as to the liability of carriers of goods to make good all losses except those happening from the act of God or the king's enemies, and the reasons for it, says, "I am of opinion the cases of losses of goods by carriers and the present are totally unlike." Again, "There is no such rule in the case of the carriage of persons; this action stands on the ground of negligence alone." In Christie v. Griggs (8) Sir James Mansfield says, "There is a difference between a con tract to carry goods and a contract to carry passengers. For the goods the carrier was liable at all events, but he did not warrant the safety of the passengers. His undertaking as to them went 1869 READHEAD V. MIDLAND no further than this, that as far as human care and foresight could RAILWAY CO. go he would provide for their safe conveyance." In Crofts v. Waterhouse (1) the observations attributable to Best, C.J., clearly shew that he did not think there was any warranty on the part of the carrier of passengers, and Park, J., in the same case, says, “A carrier of goods is liable at all events . . . a carrier of passengers is only liable for negligence." But besides the observations of individual judges to shew what has hitherto been understood to be the law, there is the series of important cases involving costly and protracted trials, in which, by common consent, the liability of carriers of passengers has been based upon the duty to take due care, and not upon a warranty. In Grote v. Chester and Holyhead Railway Company (2), where the accident arose from the breaking down of one of the bridges of the railway, the case turned on what would or would not be negligence for which the company were answerable. Parke, B., said (3): "It seems to me the company would still be liable for the accident unless he (the engineer) also used due and reasonable care and employed proper materials in the work." There is no trace in the report that it ever occurred to the Court to suppose there was any warranty of the safety of the bridge. In a case tried before Erle, C.J., Ford v. London and South Western Railway Company (4), the plaintiff was injured by the tender of the train being thrown off the line, and one of the causes was alleged to be the defective tyre of one of the wheels of the tender. Erle, C.J., in his direction told the jury, "The action is grounded on negligence. Negligence is not to be defined, because it involves some inquiry as to the degree of care required, and that is the degree which the jury think is reasonably to be required from the parties, considering all the circumstances. The railway company is bound to take reasonable care to use the best precautions in known practical use for securing the safety of their passengers." There the defect was in the tyre of a wheel of the tender of the VOL. IV. (1) 3 Bing. 319. (3) 2 Ex. at p. 254. 2 L 1 V. MIDLAND 1869 train by which the plaintiff travelled. And no suggestion that a READHEAD Warranty of its soundness existed was made throughout the case. But a case still more directly bearing upon the present point RAILWAY CO. was tried before Cockburn, C.J. (1) There the accident happened in consequence of the breaking of the tyre of the near wheel of the engine. The tyre broke from a latent flaw in the welding. The trial lasted six days, and the questions mainly were whether the flaw was not visible, and whether by the exercise of care it might not have been detected. The Lord Chief Justice commences a full direction to the jury by saying: (2) "The question is, whether the breaking of the tyre resulted from any negligence in the defendants, or their servants, for which they are responsible." The latent defect in the tyre was admitted to be the cause of the accident; but the jury having found, in answer to specific questions, that there was no evidence that the tyre was negligently welded, and that the defect had not become visible, and having in other respects nega tived negligence, the verdict was entered for the defendants. The facts of that case appear to be exactly like the present, except that in this case the defective tyre was in the wheel of the carriage, and there in the wheel of the engine. But for the reasons already given, it can never be that a warranty can exist as to the carriage, but not as to the engine drawing it. Thus, then, it is plain a trial of six days took place on issues which were utterly immaterial if a warranty ought to have been implied, and there the learned Chief Justice, and the parties themselves, seem to have been utterly unconscious of the contract which was really existing, if the plaintiff in this case is right; for the warranty, as an obligation implied by law, must have existed at the time of these trials, if it exists now; and surely it is strong to shew that no such rule does form part of a common law that it was not then recognized and declared. The learned counsel for the plaintiff insisted that a carrier by sea is bound to have his ship seaworthy. Undoubtedly, the carrier of goods by sea, like the carrier of goods by land, is bound to carry safely, and is responsible for all losses, however caused, whether by the unseaworthiness of the ship or otherwise, and it does not appear (1) Stokes v. Eastern Counties Railway Company, 2 F. & F. 691. (2) 2 F. & F. at p. 693. 1869 READHEAD V. MIDLAND to be material to inquire when he is subject to this large obligation, whether he is also subject to a less one. In the case of Lyon v. Mells (1), it was no doubt stated by the Court that the carrier of goods is bound to have a seaworthy ship, but this only as part of 'RAILWAY CO. his general liability. It is well to observe that Holroyd, who argued for the plaintiff, and Gaselee for the defendant, both state the liability of the carrier in all its breadth, viz., a liability for all losses however happening, except by the act of God or the King's enemies. This case therefore falls within the class of decisions relating to the liability of the carriers of goods. No case has been found where an absolute warranty of the seaworthiness of the ship in the case of passengers has arisen, and it affords a strong ground for presuming that no such liability exists, that in this maritime nation no passenger has ever founded an action on it. The case of Burns v. Cork and Bandon Railway Company (2), in the Irish Court of Common Pleas, certainly does not support the plaintiff's view of the law. The Court say there, the averments in the defendant's plea are all consistent with gross and culpable negligence, and on that ground give judgment for the plaintiff. The judgment plainly shews that the Court do not mean to declare that there is an absolute undertaking that the vehicle shall be free from defects. The language is, "free from defects as far as human care and foresight can provide, and perfectly roadworthy." Court refer with approbation to the language of Sir James Mansfield, and Alderson, J., which helps to explain that they were disposed to adopt the views of those learned judges, and to place the liability, not on a warranty, but on the obligation to exercise care and foresight. The It now remains to consider the American decisions on the subject. They have not been uniform. The judgment of Mr. Justice Hubbard in Ingalls v. Bills (3), cited at length by my Brother Mellor in his judgment below (4), is opposed to the notion of a warranty. Decisions however were cited before us by Mr. Manisty from the courts of the State of New York, having a contrary tendency, to shew us that in that State the law had been declared in favour of (1) 5 East, 428. (2) 13 Ir. Com. Law Rep. 543. 2 L 2 (3) 9 Metcalf, 1—15. (4) Law Rep. 2 Q. B. at p. 430. |