By the Court,
Savage, Ch. J.The plaintiffs in error insist that they are carriersof passengers; that as such they are bound to supply carriages and machinery, sound and sufficient,as far as the eye, and judgment can discover, and if an accident occurs, with the exercise of care and diligence, it is actus Dei, and they are not responsible. The defendant in error contends that the plaintiffs are not only carriers of passengers,but carriers of goods; common carriers, andanswerable as such. Story on Bailment, 379, is referred to by both counsel,as stating the rale correctly as to carriers of passengers, where he says, “The passenger carrier binds himself to carry safely those who he takes into hiscoach, as far as human foresight and care will go; that is, for the utmost care and diligence of very cautious persons.” But if, as the defendant’s counsel contends, the plaintiffs are common carriers,they are, in the language of Chancellor Kent,2 Kents Comm. 527,“in the nature of insurers, and are answerable for accidents and *627thefts, and even for a loss by robbery ; they are answerable for all losses which do not fall within the excepted cases of the act of God, or inevitable accident.” And though notice might be sufficient to excuse them from thefts and robberies, it would not from accidents occurring from the insufficiency of their own vehicles and machinery for the transportation of the goods.
It is certain that different rules have been applied to the transportation of persons, and the transportation of goods. The case of Christie v. Griggs, 2 Campb. 80, was a case of the former description. The plaintiff was badly bruised by the breaking down of the stage coach of the defendant; and on the trial, he proved the fact of breaking dowii from the failure of the axletree, and that he was severely injured. The defendant insisted that the plaintiff should go further, and show the insufficiency of the coach, or the uuskilfuluess of the driver: but Ch. J. Mansfield said the plaintiff had made out a prima facie case, and then lay with the defendant to show that his coach was as good a coach as could be made, and that the driver was as skilful as could be found. The defendant did produce evidence of the skilfulness of the driver, and that the axle had been recently examined, and no defect discovered. The Oh. Justice said that if the axletree was sound, as far as human eye could discover, the defendant was not liabl;. This case is relied on by the plaintiffs in error, and thus far would be strong in their favor, if the same rule was applicable to the carriers of persons and the carriers of goods ; for it is not disputed that the rope which broke was apparently sufficient. But Sir J. Mansfield proceeds, and says there is a difference between a contract to carry goods and a contract to carry passengers; for the goods the carrier is ansioerable at all events, but he did not warrant the safety of his passengers. His contract with them was to provide for their safe conveyance, as far as human care and foresight would go. The same doctrine, that so far as personal injury is concerned, the question is entirely one of negligence, is found in 2 Esp. N. P. Cases, 533 ; and Sharp v. Grey, 9 Bing 457, sustains the same position. Chancellor Kent has briefly stated the law relating to this case: In the aggregate body of com*628mon carriers are included the owners of stage waggons and coac|leg_ g 2 Kent's Comm. 598. The proprietors of stage coaches do not warrant the safety of passengers in the capaci- ^ commoll carriers ; they are not responsible for accidents, but for want of due care : but as to the baggage of the passengers, the modern cases place coach proprietors upon the ordinary footing of common carriers. Ibid, 600, 601. The proprietors of steam boats for the transportation of passengers and their baggage, are common carriers, and responsible for the baggage, without special compensation for it. Allen v. Sewall 2, Wendell, 327. 11 Johns. R. 109. 9 Wendell, 114. It is clear, therefore, that the same care and diligence which would excuse the carriers in case of accident to passengers, would not excuse them for damage to, or loss of goods. In the case of passengers, the carriers are responsible only for negligence ; but in respect to their baggage, they are responsible as common carriers, and accident is no excuse. The reason for the distinction is not very apparent in the present state of society; but the difference seems to be settled upon authority.
The notice, it has been intimated, was'probably intended to guard against liability for theft, or robbery or mistake, 1 Pick. 54; but the notice would not excuse from actual negligence or misconduct. The loss in this case was by accident, but by such an accident as in common carrier is accounted negligence. Whether the loss happened by the negligence of the defendants or not, it happened by their acts, or the acts of their servants; and for such losses the notice ought not to excuse them. The notice is general, and, according to its terms, imports entire irresponsibility under all circumstances ; but it has never been understood to excuse the carrier from accidents arising from the breach of the implied agreement in all such cases, that the vessel, or coach, or vehicle, whatever it be, is sufficient for the business in which it is employed. 5 East, 428. As common carriers, the law imposes a liability upon the defendants. That liability was qualified by the notice, so far as to excuse them from losses happening by means of the conduct of others, *629from robbery or larceny; but not from such losses as arise from the acts of themselves or their servants.
The result is, that although the proprietors of public conveyances are not responsible for injuries to the persons of passengers, unless they happen from the want of such care and diligence as is characteristic of cautious persons, yet they are liable for the baggage of passengers, at all events, except such losses as arise from inevitable accident, or the enemies of the country, where no notice is given. Where notice is given that all baggage is at the risk of the owners,such notice excuses them from losses happening by theft or robbery, in addition to the exemptions from responsibility as common carriers, but not from losses arising from actual negligence, or from the insufficiency of their machinery or vehicles. The loss in this case arose from the insufficiency of the machinery ; and although it could not be discovered by the eye, yet for this the defendants are responsible at all events.
Judgment affirmed.