judgment, error was brought to the court of exchequer chamber, in which the case was carefully considered. A number of English cases were cited and relied upon for the plaintiff, and especially that of Sharp v. Grey, which it was urged had settled the law in England in favor of the absolute liability of the passenger carrier for a defect in his vehicle, whether known or discoverable or not, and which had governed at least one of the decisions of the highest court of New York, to the same effect.7 But the court, after a critical and thorough review of all the cases, somewhat in the same manner in which it had been made by Hubbard, J., in Ingalls r. Bills, nearly twenty years. before, arrived at the same conclusion and settled the law upon this question for England in the same manner in which it had been held by the majority of the American courts. The estab-lished law in both countries may, therefore, be now stated to be that, while a carrier of passengers is bound to use the utmost care and skill in everything that concerns the safety of the passenger, he will not be responsible for injuries arising from latent defects in his vehicles or machinery, which no human care or skill could have either detected or prevented; or in other words, that, while it is his duty to apply every known and practicable test for the discovery of defects and imperfections in the vehicles and machinery which he employs for the transportation of passengers, he does not warrant that they are free from such defects and imperfections, and if it appear that such defects actually existed, but were undiscov

erable by such tests, he will not be held liable to the passenger for an injury which may result from them.

Sec. 906. (§ 509.) Responsibility for defects in vehicles and machinery attributable to the fault of the manufacturer.-The question has been raised whether the carrier is responsible for defects in his vehicle which are attributable to the fault of the manufacturer, and which might have been discovered by him by the application of tests known to skilful manufacturers, and which should have been applied by him before turning out the vehicle to the carrier. This question was long since answered in the affirmative by the court of appeals of New York. In Hegeman v. The Railroad, the plaintiff, when traveling on the road of the company, had received an injury, occasioned by the breaking of an axle of the car, which, it appeared, was cracked when it left the hands of the manufacturer. The defect was, however, invisible, and could not have been discovered by the company by the application of the usual tests employed by such companies, but could have been discovered by the manufacturer by the application of a simple and well known test used by such manufacturers. The question was, whether the carrier should be held liable for the consequences of the failure, on the part of the manufacturer, to apply this test, which would have revealed this defect and led to its remedy, and it was held that, for this omission of the manufacturer, the company became responsible, and that the plaintiff was entitled to recover." "It is perfectly understood," said Gardiner, C. J., who delivered the opinion of the court, "that latent defects may exist, undiscoverable by the most vigilant examination when the fabric is completed, from which the most serious accidents have and may occur. It is also well known, as the evidence in this suit tended to prove, and the jury have found, that a simple test (that of bending the iron after the axle was formed, and before it was connected with the wheel) existed, by which it could be detected. This should

8. 13 N. Y. 9.

9. Marvin and Denio, J. J., dis senting.

have been known and applied by men 'professing skill in that particular business.' It 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." And this rule of responsibility on the part of the carrier for the unskilfulness or negligence of the manufacturer of the vehicles or machinery which he employs in the carriage of passengers has been treated in subsequent cases as the established law in that state.10 But whether the rule would be applied to conveyances propelled by other agencies than steam is left uncertain.

Sec. 907. (§ 510.) Same subject.-The same view of the question was taken, and the same rule was applied, by the supreme court of Tennessee, in the case of The Nashville & Chattanooga Railroad v. Elliott,11 in which the judge below, having instructed the jury that the railway company was bound to see to it that their engines and machinery were perfect and properly constructed according to the present state of the art, it was held that there was no error. "The general doctrine," said McKinney, J., "is that in proportion to the importance of the business and the perils incident to it, is the obligation of the company to see that the engines and apparatus are suitable, sufficient, and 'as safe as care and skill can make them.'”

Sec. 908. (§ 511.) Same subject.-But the subject was subsequently examined by Nicholson, C. J., in the case of The Nashville & Decatur Railroad v. Jones,12 and the law as appli

10. Caldwell v. The Steamboat Company, 47 N. Y. 282; Carroll v. The Railroad, 58 N. Y. 126.

11. 1 Cold. 611.

12. 9 Heisk. 27.

cable to the railway carrier of passengers was thus stated, overruling the preceding case upon this point: "The legitimate obligation imposed upon the company by its contract with a passenger or employee is, that its engine and apparatus are then suitable, sufficient, and as safe as care and skill can make them, and that the company will be responsible for any injury resulting from defects therein which might have been discovered by the company or its agents, by the proper care and skill in the application of the ordinary and approved tests. If the defects are such that they could not be discovered by the company or its agents after a careful and skilful application of the ordinary and approved tests, then the company cannot be held responsible, although it may appear that the defects might have been discovered by the manufacturers by applying the proper tests. We hold it unreasonable to assume that the company not only contracts to be responsible for its own. negligence, but also for that of the manufacturers."

Sec. 909. (§ 512.) Same subject-Carrier responsible to passenger for negligence of manufacturer. But notwithstanding what may be said in some of the cases, the better opinion and the decided weight of authority is in favor of the position that, so far as the passenger is concerned, the carrier is responsible for the negligence of the manufacturer. The passenger pays for his carriage in a safe vehicle; and it is not only the duty of the carrier to employ skilful and careful manufacturers of such vehicles and machinery as he proposes to use, but even when he has done this, if it should appear that such manufacturers have been negligent and have failed to apply such tests as prudence would dictate to ascertain the soundness of their work, and if an injury result from a defect which might have been discovered by such tests, the passenger may claim compensation from the carrier, who in his turn must resort for indemnity to the manufacturer. The carrier would certainly be liable for the negligence if he were his own manufacturer, and if he employs another to manufacture for him, that other becomes his employe for the purpose, and the rule of

respondeat superior applies, as it does in many such cases, not concerning the carrier, but depending upon the same principle. As where one causes a building to be erected, into which he invites the public to come to witness an exhibition, for which he requires them to pay, and the building falls and injures those who are in it, from some defect which might have been seen or discovered and remedied by due care on the part of the builder, the owner is liable, because the implied contract in such a case is that of a warranty, not only of due care on the part of himself and his servants, but also of due care on the part of the contractor who constructed the building; and whether the owner himself knew or could have known of any defect in the building can make no difference. Such was the case of Francis v. Cockrell,13 where the defendant had erected a grandstand to enable persons who paid for seats to witness a steeplechase. The stand fell and injured the plaintiff; and although it was shown that the defendant had employed a competent builder, and was not himself aware of any defect in the stand, he was held liable for the injury. And the learned judge, in likening the case of the defendant to that of the carrier of passengers, used the following language: "In the ordinary course of things, the passenger does not know whether the carrier has himself manufactured his means of conveyance or has employed some one else for its manufacture. If the carrier has contracted with some one else, the passenger does not usually know who that person is, and in no case has he any share in the selection. The liability of the manufacturer must depend on the terms of the contract between him and the carrier, of which the passenger has no knowledge and over which he can have no control, while the carrier can introduce what stipulations and take what securities he may think proper. For the injury resulting to the carrier himself by the manufacturer's want of care the carrier has a remedy against the manufacturer; but the passenger has no remedy against the manufacturer for damage arising from a mere breach of con

13. L. R. 5 Q. B. 184.