might yet see that war was about the worst arbitration anybody could possibly have reference to, and that peace upon the hardest terms ought to be preferred to war conducted upon the best and most solid grounds. That was all he could say, considering the matter practically, until the day came when the hearts of all nations should be changed, and the spirit which animated the governors of nations should be different from what it was now. Although by no means blind to the duty of doing all in one's power to promote, as a matter of contract, international arbitration, the notion of creating an international court was simply a dream. This was apparent immediately the question was asked, by what process the decision of the court could be enforced? The only process would be to go to war, which is the very result the proposition before us is designed to prevent.

LIABILITY FOR NEGLIGENCE.'

Ought Railway Companies and other Carriers of Passengers to be liable to an unlimited extent for the Acts of their Servants? By JOSEPH BROWN, Q.C.

In the position that the liability of all persons who carry pas

the paper which I am about to read, I propose to take up

sengers for hire ought to be limited in amount. As this view seems contrary to popular ideas, particularly as applied to Railway Companies, I shall be suspected of having some interest to support it. I wish, therefore, at the outset to say that I have no shares in any Railway Company which can be affected by either view of the question. My interest would rather be the same as that of any other lawyer, namely, to support the present state of the law, which is a good deal more profitable to the lawyers than a system of limited liability could or would be, as will appear presently. My only reason for advocating a change in the law is, that I have seen so much fraud and perjury, hardship, injustice, and even ruin, caused by the present system, that I have long considered it as a scandal to our courts of justice, which every lawyer, who regards the honour and credit of our system, must desire to remove.

It is matter of common knowledge that, as the law now stands, every man and every company who employ servants is liable to the fullest extent and to any amount for any damage done by the negligence or unskilfulness of their servants in the course of their employment. Certain limitations to this liability have been made by Act of Parliament in particular instances, but the general rule is as I have stated. Thus, if your servant in driving your cart or carriage negligently drives over and kills a man, who was earning 500l. a year in business, you may be compelled to pay to the widow or family of the sufferer 5000l. damages for the error of your servant. It matters nothing that your servant was a very good driver; that he had the best of characters; that you took every care in hiring him; that you are wholly free from blame yourself. Still less does it matter that your servant is unable to repay you one pound of what you have to pay for his error. Neither does it

* See Transactions, 1870, p. 184.

signify anything that your business is one which must be carried on for the convenience of the public; as, for example, that you carry passengers by coach from one town to another, nor that it cannot be carried on without employing servants, such as coachmen and grooms. In spite of all these circumstances, the law holds you liable to your last shilling for the fault of your servant, and there is consequently never an assize passes without honest men being ruined by damages inflicted on them for accidents in respect of which they were wholly blameless, and which they had taken every care to guard against. In a paper which I read before this Society, two or three years ago, I endeavoured to point out the injustice of this state of the law, and to contend that where a man's business was one in which the public were interested, and could not be carried on without servants, and where every care had been taken in engaging and managing the servants, it was contrary to principle to hold the master liable for the casual error of the servant. This matter was afterwards considered by a Parliamentary Committee in 1870, who admitted in their report that it was difficult to give a reason for this apparently unjust rule, but did not feel themselves in a position to recommend a general alteration of the law.

I am not going to-day to raise the above question again, but shall assume it as a principle that the master should generally be liable for the errors of his servant, which may be the cause of injury or damage to others, and this being so, I shall still endeavour to show that strong reasons exist why there should be a fixed limit of amount to this liability in the case of coach owners, railway companies and others, who carry passengers for hire.

If it were possible to carry on the immense passenger traffic of this kingdom without accidents, that fact would go a long way to support the system of putting the heaviest pressure on those who conduct the traffic to bring about so desirable an end. But we might as well expect to navigate the seas without wrecks, or to have fox-hunting without broken limbs. Horses and engines must have drivers, railways must have signalmen, and after you have done all you can to secure careful and skilful drivers and signalmen, they will still occasionally commit errors of judgment or want of care, that is to say, they will still be no more than men. If any man hopes ever to see railway travelling entirely free from accidents, I can only envy his sanguine disposition, but shall not attempt to argue with him. He is beyond the reach of experience. For my own part, I am filled with amazement at the extreme rarity of accidents to railway travellers as compared with the enormous number of travellers. The cleverest men in Europe and America have had their wits at work for a quarter of a century to contrive the means of reducing accidents to a minimum, and the result we all know. They have reduced them so low, that they are less than the accidents which happened to coach travellers by more than 500 to 1, and the accidents which occur in the streets of London exceed in number those which happen to railway passengers on all the

railways in the United Kingdom. The police returns showed 120 persons killed and 2445 injured by street accidents in London for the year 1871, while in the same year the number of passengers killed and injured by railway accidents was 40 and 739. Thus

a man is much safer in a railway carriage than he is in walking the streets. This is partly due to the great care taken in the choice of drivers, signalmen, and servants. Baron Martin, in his evidence before the Committee of 1870, said (Qu. 887): "Speaking from my own experience, and I travel a good deal upon railways, I think that nothing can exceed the care and attention which is paid to the safety of all. It is really admirable; there is no doubt about it. I really do not see how it can be well exceeded."

But in spite of all this, accidents will happen in rare instances. Let engineers and managers do what they will, if the driver has a pot too much, or the signalman a drowsy fit, it will upset all their precautions.

Seeing therefore that we cannot hope to rid travelling by railway or by carriage from the accidents due to occasional negligence of servants, why should coach proprietors or railway owners be punished for the faults of their servants by the enormous and unreasonable fines that are so frequently inflicted upon them by juries, as if the masters or the railway directors were personally to blame, and could not be too heavily punished, when in truth they had done their utmost for the security of the passengers. But an example will be best to exhibit this point in its true light, and I will just read an extract from the evidence of Mr. Laing, the chairman of the Brighton Railway Company, given before the Select Committee on Railway Companies, which sat in 1870 (Report, p. 70).

"An excursion train to the Crystal Palace Fête of the Licensed Victuallers was returning from the Crystal Palace at night; the tickets were being collected at the New Cross Station, and the train was protected by no less than three signals, one of them being a special signal, more than a mile up the New Cross incline, which had been erected in compliance with the special recommendation of the Board of Trade. There was a goods train fol lowing it from Forest Hill, which knew that the excursion train was before it; there was no particular hurry; the driver was an old, experienced man, who had been twenty years in the service with a good character; but he ran past those three signals all against him, and ran into the train standing at the ticket platform with sufficient force to cause a concussion, by which a large number of persons were injured. The result to the railway company was simply this the total receipt from the passengers in the train was a little under 20., and the total cost of the accident to the company will be something over 60,000l., I should say almost 65,000l."

:

There were about 360 claims for compensation. Here then we see a railway company mulcted to the enormous amount of 65,000l., besides many thousands in costs, for an accident caused by no fault of their own, and when they had only received about 207. from the

passengers; and this is only one example out of many of the same kind which may be found in the same report.

It passes my comprehension to understand how any man can reconcile it to his sense of justice that such an enormous and unreasonable extent of liability should be imposed on a company carrying passengers, exceeding by three thousand fold what they were paid for the journey.

If we look at this point closely, we shall see that the law treats the passenger carrier, whether an individual or a company, as an insurer of the lives and limbs of the passengers-not against all accidents whatsoever-but against any which arise from the negligence or other faults of the company's servants, and as an insurer to any unknown amount. Now all insurance companies, whether for marine insurance, or life insurance, or insurance against accidents, invariably limit their policies to a fixed amount, and charge a premium of so much per cent. on the amount insured. It is obvious that this is not only the fair and reasonable mode of charging for the risk, but the only mode by which the premiums paid can be proportioned to the liability undertaken by the insurers. But what the law does with all passenger carriers, including railway companies, is to compel them to insure the lives and limbs of their passengers against the negligence of servants, to an unlimited and unknown amount, and without any regard whatsoever to the charge for carriage. No insurance company would ever take such a risk as the law forces upon railway companies. Nor have they any mode of protecting themselves against increased liability by increase of charge, for they are compelled to charge the same fare to a poor man as to a rich one, provided they go in the same class carriage. The consequence is, that two men may pay a shilling each for their tickets, and if they encounter a serious accident, the one may recover 50l. damages and the other 5000l., whereas had they insured in the Accident Insurance Company, the one would have had to pay one hundred times more premium than the other. And of course, the liability of the company is out of all proportion to the fare paid. The fare may be sixpence and the liability may be five or ten thousand pounds. To exhibit this, I will read an extract from the evidence of Mr. Grierson, the manager of the Great Western Railway Company (Report, p. 14, Q. 2012)—

"In an accident which we had a few years ago, a certain number of passengers, who had paid us 2s. 6d. each for a trip of 135 miles, in the whole amounting to 107., were injured, and for that we had to pay 24,7901. In another case, where we charged a certain number of passengers 12s. 6d. each for a trip of about 450 miles, a certain proportion of them were injured, and in that case we received about 877., and we had to pay 42,2301."

It is a necessary consequence of this state of things that a coachdriver may be utterly ruined at any time by an accident for which he was morally blameless; and this has actually happened many times. And though a very large railway company may sustain a

severe accident, without any worse results than cutting off or reducing the dividend, and thus distressing the small shareholders, yet a small railway company might be utterly ruined by such an occurrence as the New Cross accident, which would, in fact, confiscate their entire property.

Another great evil and injustice arising from the want of any limit of liability, is that it perpetually leads to the grossest fraud and trickery being practised by claimants in order to swell the amount of their damages against a railway company; so that nothing is so common as for a man who has had a railway accident to recover, by fraud and perjury, twice or five times, or even 100 times more than the damage he had really sustained. Mr. Grierson will give us some instances (Report, p. 147, Q. 2010). "I will very briefly give you a few instances showing the excessive damages which have been paid in actions which we have defended. In the first case, the claimant held a third-class excursion ticket, for which he paid 2s. 6d., for a journey of 135 miles, and was injured in a collision; he claimed 10,000l., and at the trial represented that he was permanently disabled, and that his business (which was represented to be worth 4007. a year, but his books did not bear out the statement), was totally ruined. The jury awarded him 60007. Within a short period claimant was, and is now, attending to his business, which appears in no way to have suffered in consequence of his accident. Case No. 2: claimant (injured in the same accident) was also a third-class excursion passenger, and paid for his ticket 2s. 6d., also for a journey of 135 miles. He held a situation in the Customs, at a salary of 1207. per annum. The medical evidence was to the effect that his case was hopeless; in fact, that he was wholly incapacitated from performing his marital duties, and his wife, to whom he had been married but a few weeks, was put into the witness-box to depose to this alleged fact. It was also stated that fits of the most severe nature were the result of the accident, but the company proved at the trial that he had been subject to fits from his childhood. The company's counsel agreed to the question of compensation being referred to two medical men then present, and they awarded 3500/. Within a month of the trial, claimant returned to his duties at the Custom House, and was soon after promoted; within twelve months his wife was delivered of a child, and he is now and has been as well as he was before the accident • occurred. Case No. 3 arose out of the same accident. The claimant held a third-class excursion ticket, for which he paid 2s. 6d., the journey being 135 miles. His income was proved to be no more than 601. a year. Two medical men stated that he would be disabled for life, and the jury gave him 12007. Within a year, claimant joined his father in business, he has been seen dancing at balls, and has apparently nothing the matter with him. Case No. 4: claimant, a barmaid, was a third-class excursion passenger, and paid 12s. 6d. for a journey of 458 miles. Two eminent physicians called by her, having stated that she had received injuries to the spine of a per