
    Birmingham v. Rochester City & B. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    March, 1891.)
    Carriers—Injuries to Passengers—Defective Bridge.
    A street-railroad company which lays its tracks on and runs its cars over a. bridge constructed and owned by the state, and constituting part of the highway on which such tracks are laid, thereby adopts the bridge as one of its appliances, and is liable for injuries to passengers caused by defects thereof, to the same extent as if the bridge had been built by the company itself.
    Exceptions from circuit court, Monroe county.
    Action by Mary Birmingham, an infant, by her guardian, against the Rochester City & Brighton Railroad Company. Plaintiff moves for a new trial on a case and exceptions ordered to be heard at general term in the first instance, after a nonsuit granted at circuit.
    Argued before Dwight, P. J., and Macomber and Corlett, JJ.
    B. Van Voorhis, for plaintiff.
    
      A. Benedict, for defendant.
   Dwight, P. J.

The plaintiff, a young girl of 14 years of age, was a passenger by one of the cars of the defendant on its street railway in the city of Rochester. The route pursued by the ear was along West Main street, crossing the Erie canal by a “lift bridge” constructed and owned by the state, and which formed a part of the highway. The bridge was raised and lowered by hydraulic machinery, but it seems that as originally constructed it was imperfectly balanced, and that counter-weights had been added in the form of iron troughs, loaded with pig iron, and suspended at the top of the bridge, some 18 feet from the floor, and directly above the carriage-way and railroad track. The mode of suspension is not very clearly described in the record, but it is sufficient to say that it depended for its security upon the strength of the welding of certain iron “stirrups” through which the troughs passed.. On the occasion of the passage of the car in which the plaintiff was seated the stirrup supporting the end of one of these troughs gave way, and the end of' the trough fell from its horizontal position, its entire load of loose pigs of iron slid out and were precipitated upon and through the roof of the car, and. one or more of them struck the plaintiff on the head and shoulder, inflicting: the serious injuries of which she complains.

The only question in the ease is whether the defendant is chargeable with, these results of the imperfect and unsafe construction of the bridge. The defendant’s contention to the contrary is based upon the fact that the bridge was not one of its own structures, being neither built not controlled by it; that it had no authority to reconstruct or repair it; and that,'even if it had such authority, the defect from which the accident resulted was one which would not have been disclosed upon reasonable inspection. We think this contention cannot be maintained, but that it is opposed to elementary principles, which determine the liability of common carriers of passengers. The fact, that the structure was not built or controlled by the defendant is immaterial.. It was adopted and employed by the defendant as one of the appliances by means of which its business of transporting passengers was carried on. Such-being the case, the defendant was chargeable with all the defects of the structure, whether original or resulting from wear and tear, whether latent or patent, to the same extent as if it had been constructed by the defendant itself, or owned and controlled by it. This conclusion results from the nature of the contract between the carrier and the passenger. That contract is to carry safely, barring accidents against which the utmost human skill and foresight are powerless to provide. This contract includes not merely an assurance that the utmost skill and foresight shall be employed to secure the safety of the passenger during the act of transportation, but a guaranty that the same degree of skill and foresight has been employed in the selection and. construction of all the machinery and appliances used for the purpose of such transportation. In other words, the carrier of passengers contracts not only for his own skill and care in the conduct of the business, but for the skill and care of ail those who have made or furnished any of the instrumentalities or appliances by means of which the business is conducted. Palmer v. Canal Co., 120 N. Y. 170, 24 N. E. Rep. 302, and the cases cited; Carroll v. Railroad Co., 58 N. Y. 126, 138; Hegeman v. Railroad Corp., 13 N. Y. 9. These principles would apply to the case at bar even if it were to be conceded that the imperfect welding of the iron stirrup was .the only defect in the construction of the bridge of which the plaintiff could complain, because, even though that defect was not discoverable after the bridge was erected and in operation, it is in evidence, and not questioned by .the defendant, that the defect in welding was easily discoverable by the maker of the stirrup "on the application of a well-known test. But the concession supposed cannot be required of the plaintiff. The whole question of negligence in the application of counter-weights to the bridge—whether the exercise of even ordinary prudence was evinced in the suspension of loose masses of iron, in troughs, over the heads of passengers, liable to be precipitated upon them whenever a defect should develop itself in the means of suspension—was clearly a question for the jury. This mode of construction was open and apparent to ordinary observation, and against the dangers incident to it, whatever they were, the defendant was bound by its contract to protect its passengers. By its use of- the bridge the defendant made it a part of the superstructure of its road, and was as much responsible for its safe condition as for that of any portion of its track. So it has always been held in respect to railroads employing leased lines, or the right of trackage on the lines of other roads. It is to the company contracting for his transportation, and not'the company upon whose line the cars of the former are run, to which the passenger may look for compensation for an injury resulting from a defective road. Railroad Co. v. Anderson, 94 Pa. St. 351; Murch v. Railroad Corp., 29 N. H. 9; John v. Bacon, L. R. 5 C. P. 437. In this case the defendant—under what arrangement does not appear—acquired or assumed the privilege of laying its track over a bridge belonging to the state. It was no less responsible to its passengers for the safe condition of the structure than if it had been of its own construction. We think the question of the negligence, if any, for which the defendant was responsible, was a question for the jury, and that the motion for a nonsuit was improperly granted. The plaintiff’s exception to that ruling should be allowed, and a new trial granted, with costs to abide the ■event. All concur.  