fered great pain of body and anguish of he had returned to his house in an infirm mind. Damages which necessarily result condition,-so infirm that his medical at from the act complained of are denominated tendant and adviser deemed him incapable "general damages," and may be proved un- of pursuing any ordinary business or occu der the ad damnum clause, or general allega-pation, and had advised him to abstain tion of damage, while those which are the from personal exertion. This evidence natural consequences of the act complained would certainly assist a jury to determine of, and not the necessary result of it, are that the plaintiff had sustained an injury termed "special damages." The defendant of no slight character,—an injury to his per must be presumed to be aware of the dam- son, and which was followed by expense, ages which necessarily result from the act suffering, and loss of time, which had for done, and therefore he cannot be held to be him a pecuniary value. These were the ditaken by surprise when proof is offered of rect and necessary consequences of the insuch necessarily resulting damage. But as jury, and sustained strictly and almost exto the damage naturally, though not neces-clusively as an effect from it." In Bradsarily, resulting from the act done, the de- bury v. Benton, above cited, the action was fendant cannot be presumed to be aware of for a personal injury, and no special damthem, and therefore, in order to prevent a ages were alleged. The point was as to the surprise on defendant, it must be specially recovery of prospective damages. As to set forth in the complaint, or the plaintiff this, the court, per LIBBEY, J., said: "In will not be permitted to give evidence of it at legal contemplation, all damages which will the trial. On this subject, see Chit. Pl. (16th be sustained as the effect of the injury are Amer. Ed.)348; 2 Greenl. Ev. § 254; Stevenson sustained immediately. The future effect of v. Smith, 28 Cal. 103; Potter v. Froment, 47 the injuries is not special damages, which Cal. 165; Hunter v. Stewart, 47 Me. 419. must be alleged, but general damages, which Now, considering the physical injuries com- necessarily flow from the injuries received. plained of, and set forth in the complaint, by Hunter v. Stewart, 47 Me. 419. The declaplaintiff, viz., the fracture of his right leg, by ration specifically describes the injuries rereason of which it will always be shorter ceived. It is sufficient to authorize a recovthan his other leg, and that he has sustained ery of all damages which had been or would other and internal injuries from which he be sustained by the plaintiff as the natural can never recover, and which will perma- and ordinary effect of the injuries." We nently impair his health, strength, and ac- will remark here that in our judgment the tivity, the court will not be straying from words "his business," used in the instructhe rule above stated,if it directs the jury, in tion, referred to any business which plainassessing the amount of damages sustained tiff might undertake to carry out, and that by plaintiff, to take into consideration the there is no difference in meaning between permanent loss and damage, if any is the words "his business" and "his ordinary proved, arising from any disability result-business." Plaintiff was entitled to the ining to the plaintiff from the injury com-struction as given, and the court committed plained of, which renders him less capable of no error in giving it.

attending to his business than he would 2. The defendants requested the court to have been if the injury had not been received. give the following instruction: "Plaintiff, The court, in this instruction, only directed in order to recover in this action, must the jury to take into consideration in as- prove to your satisfaction that defendsessing the damages such as necessarily re-ants have been guilty of some fault or negsulted from the injuries set forth in the com-ligence, and must also prove what that fault plaint, if such injuries were proved by the ev- or negligence was, and this plaintiff must dence. That the injuries set forth will neces- do by a preponderance of evidence and to a sarily render a person less capable of at- moral certainty." This instruction was tending to his business is clearly apparent, refused by the court as asked, and to this and no argument is needed to make it clear. refusal defendants excepted. The court The conclusion here reached is sustained by struck out the words at the end of the rethe rulings in the following cases: Morris v. quest, “and to a moral certainty," and gave Railroad Co., 45 Iowa, 30; Conner v. Con- it as thus modified. To this defendants struction Co., 29 Fed. Rep. 631; Wade v. also excepted. It is argued by defendants Leroy, 20 How. 44; Nebraska v. Camp- that they were entitled to have the instrucbell, 2 Black, 592; Elkhart v. Ritter, 66 Ind. tion given as asked by reason of the provis140; Indianapolis v.Gaston, 58 Ind. 224; Pot-ions of section 1826 of the Code of Civil Proter v. Railroad Co., 28 Law T. (N. S.) 735; cedure. That section is as follows: "The McKeever v. Railroad Co., 59 Cal. 294; law does not require demonstration; that Bradbury v. Benton, 69 Me. 199; Railroad is, such a degree of proof as, excluding posCo. v. Wightman, 29 Grat. 431, 440, 441; Ty-sibility of error, produces absolute cerson v. Booth, 100 Mass. 266; Roberts v. Gra-tainty, because such proof is rarely possible. ham, 6 Wall. 578; Ward v. Smith, 11 Price, Moral certainty only is required, or that de19. We refer particularly to the case of gree of proof which produces conviction in Wade v. Leroy, above cited. In that case an unprejudiced mind." We are inclined to the court said: "The evidence conduced the opinion that giving the instruction as to prove that the plaintiff was serious-asked would have been error, and that ly injured." Subsequently, in the opinion, the giving it as modified was also error. these observations were made: "That The law does not put on the plaintiff before that time he had been concerned in the burden of proving, not only fault or conducting a business that required a de-negligence on the part of the defendants, gree of mental and bodily vigor, and that but also "what that fault or negligence his time was of some pecuniary value; or was." The law requires proof that plainthat he had suffered a loss of some profit; tiff has sustained an injury by the breakand that, after some detention in New York, ing of the machinery by which he is

the plaintiff, in order to recover in this action, must prove to their satisfaction that the defendants had been guilty of what was stated in the instruction complained of, by a preponderance of evidence, they were, in effect, told that they must be convinced from the evidence to a moral certainty that defendants were so guilty, or the plaintiff was not entitled to recover. They could not be satisfied that the plaintiff had made such proof without being convinced of its truth to a moral certainty. The instruction, as given, was the equivalent of the require ments of section 1826 of the Code of Civil Procedure, and hence there was no error in the rulings of the court in regard to the request refused or the instruction given. If there was any error committed by the court, it was in giving an instruction too favorable to defendants, of which they cannot be heard to complain.

carried or transported, and that such ma- | section 1835, supra. It follows from the chinery was under the control and man- foregoing that when the jury were told that agement of the defendant. When plaintiff has made such proof he has made out a case which entitles him, if not rebutted or disproved, to recover of defendant. The plaintiff, by such proof, has made a case showing negligence on the part of defendant. The burden is then thrown on defendant to show that he was not guilty of negligence for which he could be charged. This he can do by going into proof of the manner in which the hurt occurred, and showing that it was caused by an inevitable casualty, for which the law imposed on him no responsibility, or by establishing any fact which relieved him of responsibility. Take, for instance, the case of a passenger alleged to be injured by the negligence of a carrier in so carelessly driving a coach, on which plaintiff was a passenger, that it was overturned, and plaintiff was injured. The plaintiff only is called on to prove the overturning of the coach, and that he was hurt 3. Defendants contend that the court erred by it. This overturning the defendant is in modifying the instruction numbered 9, called on to show was not caused by his requested by them. The instruction as negligence at all. This he may show by di- asked by defendants was as follows: "If rect proof that he was not negligent at all, the accident in question was caused by or that the overturn occurred from some a defect or flaw in one of the piston-rods of latent defect in the machinery, which broke the elevator apparatus, which defect or and caused the overturn. The particular flaw was not discoverable on an ordinary, fault or negligence may come out on the reasonable, and careful examination, then evidence in the cause, but plaintiff is not re- your verdict should be for the defendants." quired to prove what caused the overturn. The court modified the instruction so as to The above is virtually established to be law read as follows: "If the accident in quesby two cases decided by this court. Refer- tion was caused by a defect or flaw in one ence is here made to Boyce v. Stage Co., 25 of the piston-rods of the elevator apparCal. 468, and Lawrence v. Green, 70 Cal. 420, atus, which defect or flaw was not discov11 Pac. Rep. 750. In this case the plaintiff erable on a reasonable and careful examwas only called on to show that he was ination, according to the best-known tests hurt by the breaking of the machinery of reasonably practicable, then your verdict the elevator, by which he was injured. should be for the defendants." It is said When this is done he has made out a case, by defendants that it was error for the on which, there being no other evidence in-court to insert the words, "according to the troduced, he has a right to recover. The best-known tests reasonably practicable." plaintiff is not called on to make any more The defendants used their elevator in lifting particular proof. Doubtless there are ex-persons vertically to the height of 40 feet. ceptions to this rule, but this case is not one. That they were carriers of passengers, and For the above reasons we are inclined to should be treated as such, we have no think that the instruction asked and re- doubt. The same responsibilities as to care fused, and the instruction as given, were and diligence rested on them as on the carerroneous. But, conceding that the views riers of passengers by stage-coach or railabove stated are not tenable, we are still way. In Fairchild v. Stage Co., 13 Cal. 599, of opinion that the court below, by its rul- which was an action by a passenger ing, committed no error of which defend- against a stage-coach proprietor, it was ants can complain. The defendants urge held that proprietors of stage-coaches are that they are entitled to the instruction not insurers or warrantors of the safety that their fault or negligence should have of passengers to the same extent as combeen proved “to a moral certainty," under mon carriers of goods; still they are liable the provisions of section 1826 of the Code of for the slightest neglect, and are held to exCivil Procedure. That section is fully quoted traordinary diligence and care. The court above. By this section that degree of proof cites sections 592 and 601a, Story, Bailm., is required to establish a matter in dispute and Farish v. Reigle, 11 Grat. 711, where which produces conviction in an unpreju- the same rule is laid down. As to the vediced mind. When the evidence is such as hicle, Judge STORY says, in section 592, of to produce conviction of the truth of a fact such proprietors: "They are bound to in an unprejudiced mind, such a fact is said provide coaches reasonably strong and sufto be established to a moral certainty. Such ficient for the journey, with suitable harevidence is deemed to be satisfactory, and ness, trappings, and equipments, and to will justify a verdict. It is so declared in make a proper examination thereof previthe Code of Civil Procedure by section 1835. ous to each journey." And, further: When a matter is proved to the satisfac-"Hence it has been held that if there is any tion of a jury, by a preponderance of evidence, then it can be affirmed that they are convinced of its truth, and, being thus convinced of its truth, they can base a verdict on it. Code Civil Proc. § 2061, subd. 5, and

defect in the original construction of a stage-coach,-as, for example in an axletree,-although the defect be out of sight and not discoverable upon a mere ordinary examination, yet if the defect might be dis

railroad company, and the cars or other machinery which it is to provide and furnish for such transportation. The railroad company is bound for the utmost care and diligence of very cautions persons, and is responsible for any, even the slightest, neglect. The same rule applies in both cases, and for the same reason, that each undertakes to carry human beings, whose lives and limbs and health are of great importance, as well to the public as themselves.

In Maverick v. Railroad Co., 36 N. Y. 378, the rule is stated as well settled that “passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go; that is, to the utmost care and diligence of very cautions persons.” The court cites Bowen v. Railroad Co., 18 N. Y. 408, and Deyo v. Railroad Co., 34 N. Y. 9, where the same rule is laid down.

covered by a more minute examination, | thereof." This ruling in Fairchild v. Stage and any damage is occasioned to a pas- Co. was approved in Boyce v. Stage Co., senger thereby, the coach proprietors are 25 Cal. 468, and Lawrence v. Green, 70 Cal. answerable therefor. The same rule will 417, 420, 421, 11 Pac. Rep. 750. apply to any other latent defect, which It thus appears to be settled law in this might be discovered by more minute exam-state that a proprietor of stage-coaches is ination and more exact diligence, whereby liable for the slightest negligence in regard the work is not roadworthy, and a dam- to the vehicle provided by him; that he is age thereby occurs to any passenger." In responsible to his passenger for the utmost section 601a, Justice Story says that "the care and diligence of very cautious persons. law will, in tenderness to human life and In Rodgers v. Railroad Co., 67 Cal. 608, 8 human limbs, hold the proprietors liable Pac. Rep. 377, it was said by the court: for the slightest negligence, and will com- "Manifestly it was the duty of the defendpel them to repel, by satisfactory proofs, ant, a railroad company, to furnish alike to every imputation thereof." In Farish v. its passengers and employes a suitable and Reigle, supra, the question was directly safe road, engines, cars, and appliances for raised whether a stage-coach proprietor conducting its business," etc. Certainly the was responsible for more than ordinary degree of care and diligence to be exercised diligence. The court unanimously held by a stage-coach proprietor, as to the vethat he was. The court approved of thehicle to be provided by him for the carriage doctrines of Justice Story on this subject. of passengers, is just as high as regards a In the cases cited, the court, speaking by Justice DANIEL, said: “The liabilities of such carriers naturally flow from their duties. As they are not, like common carriers of goods, insurers against all injuries except by the act of God, or by public enemies, the inquiry is naturally presented, what is the nature and extent of their responsibility? It is certain that their undertaking is not an undertaking absolutely to convey safely. But although they do not warrant the safety of the passengers at all events, yet their undertaking and liability go to the extent that they and their agents possess competent skill, and that they will use all due care and diligence in the performance of their duty. But in what manner (the author asks) are we to measure this due care and diligence? Is it ordinary care and diligence which will make them liable only for ordinary neglect? Or is it extraordinary care and diligence which will render In Taylor v. Railroad Co., 48 N. H. 313, a them liable for slight neglect? As they un-large number of authorities are collected in dertake for the carriage of human beings, an able opinion by BELLOWS, J. In this whose lives, and limbs, and health are of opinion it is declared: "The doctrine of great importance, as well to the public as the American courts is still more strict and to themselves, the ordinary principle in explicit; and the general current of the aucriminal cases, where persons are made lia-thorities is that the carrier of passengers is ble for personal wrongs and injuries arising from slight neglect, would seem (he says) to furnish the true analogy and rule. It has been accordingly held that passenger carriers bind themselves to carry safely those whom they [admit] into their coaches, as far as human care and foresight | will go, that is, for the utmost care and diligence of very cautious persons; and of course they are responsible for any, even the In Railroad Co. v. Derby, 14 How. 486, it slightest, neglect. Section 601. In section is said by the court: "When carriers un601a the further proposition is stated that, dertake to convey persons by the powerful when injury or damage happens to the pas- but dangerous agency of steam, public pol sengers by the breaking down or overturn-icy and safety require that they be held to ing of the coach, or by any other accident the greatest possible care and diligence. occurring on the ground, the presumption And, whether the consideration for such prima facie is that it occurred by the negli- transportation be pecuniary or otherwise, gence of the coachman; and the onus pro- the personal safety of the passengers should bandi is on the proprietors of the coach to not be left to the sport of chance, or the establish that there has been no negligence negligence of careless agents. Any negli whatsoever, and that the damage or injury gence in such cases may well deserve the has been occasioned by inevitable casuality, epithet of gross.'" This statement is apor by come cause which human care and proved in The New World v. King, 16 How. foresight could not prevent; for the law 474, as resting not only on public policy, will, in tenderness to human life and limbs, but sound principles of law. See Redf. R. hold the proprietors liable for the slightest R. § 149, note 5. The above rule is sustained negligence, and will compel them to repel, by Stokes v. Saltonstall, 13 Pet. 181; in by satisfactory proofs, every imputation Massachusetts, by Ingalls v. Bills, 9 Metc. 1;

bound to the utmost care and diligence of very cautious persons, and is responsible for any, even the smallest, neglect; holding their undertaking to be to carry their passengers with safety as far as human care and foresight can go. This is distinctly laid down in Story, Bailm. §§ 601, 601a; and also in 2 Greenl. Ev. § 221; and in 2 Kent, Comm. *601, *602; and Redf. R. R. c. 17."

and McElroy v. Railroad Co., 4 Cush. 400; in subjected to great risks to life and limb. Maine, by Edwards v. Lord, 49 Me. 279; in They are hoisted vertically, and are unConnecticut, by Hall v. Steam-Boat Co., able, in case of the breaking of the machin13 Conn. 320; Derwort v. Loomer, 21 Conn. ery, to help themselves. The person run253; Fuller v. Railroad Co., Id. 557, 576; in ning such elevator must be held to underVermont, by Hadley v. Cross, 34 Vt. 586. take to raise such persons safely, as far as See, also, Hegeman v. Railroad Corp., 16 human care and foresight will go. The law Barb. 353, approved in 13 N. Y. 9; Caldwell holds him to the utmost care and diligence v. Murphy, 1 Duer, 241; Railroad Co. v. of very cautious persons, and responsible Burke, 13 Wend. 626; Railroad Co. v. Aspell, for the slightest neglect. Such responsibil23 Pa. St. 147; Railroad Co. v. Kennard, 21|ity attaches to all persons engaged in emPa. St. 203; Railroad Co. v. Yarwood, 15 Ill.ployments where human beings submit 468; Railroad Co. v. Fay, 16 Ill. 558; Frink v. their bodies to their control, by which their Potter, 17 Ill. 406; Frink v. Coe, 4 G. Greene, lives or limbs are put at hazard, or where 555; McKinney v. Neil,1 McLean, 540; Maury such employment is attended with danger v. Talmadge, 2 McLean, 157; Cornwall v. to life or limb. The utmost care and diliRailroad Co., 28 N. H. 169; Clark v. Barring-gence must be used by persons engaged in ton, 41 N. H. 51.

In Railroad Co. v. Kennard, supra, Judge GIBSON Said "that the carrier is bound to guard the passenger from every danger which extreme vigilance can prevent.' And it is said by AGNEW, J., speaking for the court, in Meier v. Railroad Co., 64 Pa. St. 225, that the above expresses the true measure of responsibility.

In Laing v. Colder, 8 Pa. St. 482, Judge BELL said that, though in legal contemplation the carrier does not warrant the absolute safety of his passengers, he is bound to the exercise of the utmost degree of diligence and care. The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable in damages.

such employments, to avoid injury to those they carry. The care and diligence required is proportioned to the danger to the persons carried. In proportion to the degree of danger to others must be the care and diligence to be exercised; where the danger is great, the utmost care and diligence must be employed. In such cases the law requires extraordinary care and diligence. We know of no employment where the law should demand a higher degree of care and diligence than in the case of the persons using and running elevators for lifting human beings from one level to another. The danger of those being raised is great. When persons are injured by the giving way of the machinery the hurt is always serious, frequently fatal; and the law should and does bind persons so engaged to the highest degree of care One of the ablest of our text-writers and practicable under the circumstances. It jurists, Judge Cooley, thus states the rule would be injustice and cruelty to the public as to carriers of passengers: Such carrier in courts to abate in any degree from this "only undertakes that he will carry them high degree of care. The aged, the helpless, without negligence or fault. But as there and the infirm are daily using these elevaare committed to his charge for the time tors. The owners make profit by these elethe lives and safety of persons of all ages vators, or use them for the profit they and of all degrees of ability for self-protec- bring to them. The cruelty from a careless tion, and as the slightest failure in watch- use of such contrivances is likely to fall on fulness may be destructive of life or limb, the weakest of the community. All, includit is reasonable to require of him the most ing the strongest,are without the means of perfect care of prudent and cautious men, self-protection upon the breaking down of and his undertaking and liability as to his the machinery. The law, therefore, throws passengers goes to this extent: that, as far around such persons its protection by reas human foresight and care can reason-quiring the highest care and diligence. The ably go, he will transport them safely. He carrier of passengers is under obligations is not liable if injuries happen from sheer to use the utmost care and diligence in proaccident or misfortune, where there is no viding safe, suitable, and sufficient vehicles negligence or fault, and where no want of for the conveyance of his passengers. Readcaution, foresight, or judgment would pre-head v. Railroad Co., L. R. 2 Q. B. 412, L. vent the injury. But he is liable for the smallest negligence in himself or his servants.' Cooley, Torts, (2d Ed.) 768,769. The learned author cites, as sustaining his statements of the law, a long list of cases, which will be found in note 1, p. 769.

R. 4 Q. B. 379; Jamison v. Railroad Co., 55 Cal. 593; Ingalls v. Bills, 9 Metc. 1; Taylor v. Railroad Co., 48 N. H. 304; Caldwell v. Steam-Boat Co., 47 N. Y. 287; Railroad Co. v. Huntley, 38 Mich. 537; Railroad Co. v. State, 29 Md. 252; Railroad Co. v. Sanger, 15 Grat. 230; Kelly v. Railroad Co., 15 N. E. Rep. 879; Railroad Co. v. Herbert, 116 U. S. 651, 652, 6 Sup. Ct. Rep. 590.

As said by BELLOWS, J., in Taylor v. Railroad Co., 48 N. H. 314: "Upon grounds of public policy, also, the carrier of passengers is bound to exercise the highest degree Railroads must keep pace with science of care and diligence. To his diligence and and art and modern improvement, in their fidelity are intrusted the lives and safety of application to the carriage of passengers, large numbers of human beings;" and but are not responsible for the unknown as when passengers are carried by steam the well as the new. Meier v. Railroad Co., 64 demand for the utmost skill and diligence Pa. St. 225. In this case it is stated that is especially required, "for then, in conse- the rule laid down in the second assignment quence of the greater speed, the hazards to of error is a correct summary of the law. life and limb are largely increased." The The language used in the assignment of ersame degree of responsibility must attach ror referred to is this: "That the rule in to one controlling and running an elevator.regard to carriers of passengers is this: the Persons who are lifted by elevators are utmost care and vigilance is required on

the part of the carrier. This rule does not may exist, undiscoverable by the most vigi. require the utmost degree of care which the lant examination, when the fabric is com human mind is capable of imagining; but pleted, from which the most serious acciit does require that the highest degree of dents have and may occur. It is also well practicable care and diligence should be known, as the evidence in this suit tended adopted that is consistent with the mode to prove, and the jury have found, that a of transportation adopted. Railway pas- simple test (that of bending the iron after senger carriers are bound to use all reason- the axle was formed, and before it was conable precautions against injury of passen- nected with the wheel) existed, by which gers; and these precautions are to be meas- it could be detected. This should have ured by those in known use in the same been known and applied by men 'profesbusiness, which have been proved by ex-sing skill in that particular business.' It perience to be efficacious. The company is bound to use the best precautions in known practical use. That is the rule: The best precautions in known practical use to secure the safety of the passengers, but not every possible preventive which the highest scientific skill might suggest." Railroad companies are bound to adopt the most approved modes of construction and machinery in known use in the business. If they fail to do so, and injury result in consequence, they are responsible, as is said in Ford v. Railroad Co., 2 Fost. & F. 730. The company was bound to use the best precautions in known practical use, to secure the safety of their passengers, but not every possible preventive which the highest scientific skill might have sug-case related to a broken axle. The defendgested."

66

was not known, or, if known, was not applied, by these manufacturers. It was not used by the defendants, 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." Here it is held that the test referred to should have been known and applied by men "professing skill in that particular business," (viz., that of making · axles and wheels for railway cars.) The

ants were held liable, if the test was not known to the manufacturers, or, if known, was not applied by them.

In Steinweg v. Railroad Co., 43 N. Y. 123, it is held that railway companies, as common carriers, are bound to have such ve- In the light of the foregoing well-settled hicles and machinery for the transporta- rules of law, that carriers of passengers tion of goods as the improvements known are responsible, as far as human care and to practical men, and tested by practical foresight will go, for the utmost care and use, may suggest, but not to take every pos- diligence of very cautious persons, and sible precaution which the highest scientific therefore for the slightest neglect; that they skill might suggest, nor to adopt any mere are bound for defects in the vehicles which speculative and untried experiment. As they furnish, which might have been disstated above, it is said in Ingalls v. Bills, covered by the most careful examination,9 Metc. 1, that the carrier of passengers is we think the court below did not errin moresponsible for defects that might have been difying the instruction under consideration discovered upon the most careful and thor- as pointed out above. It is a most reasonough examination. In Hadley v. Cross, 34 able precaution imposed on such a carrier, Vt. 586, the doctrine of Ingalls v. Bills, su- of whom we consider the owner of an ele pra, was applied to a livery stable keeper vator one, to require him to test the veletting a defective carriage, and he was held hicles or machinery used by him by the best liable if the defect could have been discov-known tests reasonably practicable. It ered upon the most careful and thorough ex-such tests are not used, the carrier is wantamination.

It was held in Hegeman v. Railroad Corp., 16 Barb. 353, that the carrier is bound to conduct his business with all the care which human prudence and skill could suggest, and the defendants in that case were held liable for injuries caused by a defect in a car made by a competent manufacturer, which defect was not discoverable upon a thorough examination after the car was finished, but might have been before, by bending the axle in which the defect was. This decision was affirmed in 13 N. Y. 9. See, also, Caldwell v. Steam-Boat Co., 47 N. Y. 287.

ing in the care and foresight required. Nor are the defendants excused from the degree of care and diligence above pointed out, by the fact that the elevator in use was constructed by a competent and skilled manufacturer, from whom they purchased it. The manufacturer was their agent or servant in the construction of the elevator, and they are responsible for any want of care of the maker or builder. The obligation of care and foresight rests on the person using the elevator, and he cannot shift it from himself to another person. This point is made and decided in Hegeman v. Railroad Corp., 16 Barb. 356, as also by the court of appeals of New York in the same case, where it was there heard. In the case in 16 Barb. the court, per HARRIS, J., said: "They [the defendants] gave evidence to show that they had purchased the car from a manufacturer of high reputation for the excellence and safety of the cars manufactured by him, and that, after employing all In relation to tests, it was said in Hege-reasonable care and skill for the purpose man v. Railroad Corp., 13 N. Y. 26, 27: "It is of detecting any defect in the machinery, perfectly understood that latent defects the defect in the axle, which was the cause

In Railroad Co. v. Hamilton, 66 Tex. 95, the court said, in regard to a passenger carrier: "If any certain or satisfactory test is known which is within the reach of the company, it should be applied, and they should not, in that case, be excused, if they rely upon a test which is clearly insufficient."