The opinion of the Court was delivered by
Gibson, C. J.Most of the exceptions before us merit but a brief notice, even under the statute which imposes on us the duty of expressing an opinion on all the points which were ruled below. First, then, the admissions of a defendant are evidence against himself even when he is jointly sued; and it is just as clear that the plaintiff in this suit could not maintain an action against either Boyle, the deponent, or Meixsell his quondam partner; with neither of whom did he stand on any relation of privity. Boyle, therefore, was disinterested. It is equally clear, too, that case, and not trespass, is the proper form of action for an injury like the present.
The exceptions to the charge also are unfounded. The plaintiff certainly, or his bailee at the time of the injury possibly, might maintain an action on the case for the loss of the mare. The principle of Ward v. M’Cauley, (4 T. R. 490), is that trespass, founded as it is on possession, cannot be maintained by a bailor unless the bailee had the custody of the thing merely as his servant; but that trover may be maintained on the right of property without question as to the possession. That principle is an elementary one. The only material inquiry, in the case before us, regards the nature and extent of the defendant’s responsibility to their customers. It is true that the judge put the responsibility of a carrier or an innkeeper as illustration, not of the degree of diligence required, *36but of the duty which the law imposed on him to provide all the means and appliances necessary for a safe accomplishment of his business; but he put the question on the true ground as a conclusion from the whole, that of ordinary care and skill. As the defendants were bound to use reasonable diligence to ascertain the quality of their machinery in regard to safety, they wmre answerable certainly for gross negligence of which there was evidence. They were warned of the danger not only by others, but by their own eyes; yet they preferred to rely on the assurances of the manufacturer; and the judge was right in charging that “ if they chose to make his opinion the rule of their conduct in opposition to the evidence of their own senses, they had no right to visit the consequences of their folly on their customers.” To work the engine under an extraordinary head of steam, though the boiler-head had been perceptibly sprung at the lowest pressure, was an act of rashness ; and it is to be remembered that they were bound, not only to use due care, but to possess a competent share of skill on the principle by which the law implies an agreement to that effect on the part of every one who undertakes to perform a business, an office, or a duty. Now it appeared that Aquila Spencer, who was attending to the engine, and for whose management of it the other defendants also are answerable, had placed the pea of the safety valve at half the length of the lever from the fulcrum, though the boiler-head had been sensibly sprung when the pea was close to the nave. It is not to be doubted, then, that the disaster which ensued is one which he was bound to prevent, and for which all are answerable.
Judgment affirmed.