The appellants are husband and wife, and bring this action to recover damages for a personal injury sustained by the wife, December 15, 1873, in consequence of the alleged negligence of the respondents. At this time the respondents were carriers of passengers in the Territory and received the fare from appellants for their transportation from Watson to Helena. At a point near Beavertown, the respondents’ sleigh or “ bob-sled,” in which the passengers were being conveyed, was turned suddenly on one side and Mrs. Byan, one of the appellants, was thrown about seven feet from her seat and received the injury described in the complaint. At the trial, the court sustained the motion of the respondents for a nonsuit and we are called upon to review this ruling.
Tbe appellants claim tbat the court erred in excluding tbe declarations of tbe driver of tbe respondents, wbieb were made immediately after tbe accident and during tbe time tbat he was engaged in tbe performance of bis duties. He then said tbat be was sorry tbat she (Mrs. Eyan) was hurt; tbat be could have avoided tbe overturning of tbe sleigh if be bad been paying tbe slightest attention; and tbat it was bis carelessness, and there was no necessity for it. Tbe representations or admissions of tbis agent will bind tbe respondents, if they were made within tbe scope of tbe authority which bad been confided to him. Story on Agency, § 134. W e think tbat an examination of tbe following cases shows tbat tbis principle is not applicable to the statements of tbe respondents’ driver, which the appellants sought to prove in tbe court below. In Luby v. Hudson R. R., 17 N. Y. 131, it was held tbat tbe declarations of tbe driver of a car, wbieb bad run against and injured a person, made after tbe accident occurred and while be was in charge óf the car, tbat be could not stop tbe car because tbe brakes were out of order, were not competent against tbe company tbat employed the driver. In Robinson v. Fitchburg R., 7 Gray, 92, which was an action against a railroad corporation for damages caused by a colbsion through tbe negligence of tbe engineer, it was held that tbe declarations of tbe engineer respecting tbe accident, made a number of days afterward, were not competent against tbe company. Tbe supreme court of tbe United States has recently considered tbe same question in Packet Co. v. Clough, 20 Wall. 528. It was held tbat tbe conversation of tbe captain of a steamboat with a party who was injured in going upon tbe boat, made two and
In the case at bar, what the driver said to the appellants concerning the accident was the narrative of a past occurrence and could not affect the liability of his principals. In the authorities which have been referred to, the number of hours or days that elapsed after the occurrence of the accident complained of, and during which the agent made certain admissions against his principal, is treated as an immaterial fact. If they were uttered before the journey upon which the injured party entered was ended they were mere narration. When the respondents’ driver made the statements to the appellants, which have been specified, “ the accident was past,” and the injury to Mrs. Ryan was complete. “ The only wrong she sustained, if any, had been consummated.” Packet Co. v. Clough, supra. Therefore the court did not err in excluding the declarations of the respondents’ driver.
It will be necessary to state the testimony of the appellants relating to the alleged negligence of the respondents, to show the nature of the legal question which must now be considered. It
When these facts are reviewed it will be seen that only one question can be discussed. Did the appellants support their allegation of negligence on the part of the respondents by producing testimony, which tended to prove that the accident occurred, without the fault of the appellants, under the circumstances which have been pointed out ?
The complaint in this case contains the same allegations as the declaration at common law in similar actions. No contract between the appellants and respondents is set forth in the pleadings, or mentioned in the evidence, which is in conflict with the obligations that the law has imposed upon the respondents as common carriers of persons. The appellants were passengers for hire. What was the duty of the respondents ? They were required to carry the appellants from Watson to Helena as safely as human foresight and reasonable care would permit. The nature and limitations of this obligation have been defined accurately in the following authorities. “Carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient and suitable coaches, harnesses, horses and coachmen in order to prevent those injuries which human care and foresight can guard against.” Ingalls v. Bills, 9 Metc. 1. The proprietor of a stage-coach covenants that he will insure the safe carriage of passengers by the exercise of extraordinary diligence and care, and is responsible for any neglect. Fairchild v. California S. Co., 13 Cal. 605.
Did the respondents violate any of these duties which were incumbent upon them ? The respondents had the exclusive control and management of the sleigh when it was upset. The nature of the accident has been explained by the testimony. Should the question whether there was a want of due and reasonable care on the part of the respondents have been submitted to the jury ? The sufficiency and effect of the evidence on behalf of the appellants appear to be determined in many cases. The supreme court of the United States has considered these questions. In Stokes v. Saltonstall, 13 Pet. 181, the plaintiff commenced an action to recover damages for an injury sustained by his wife by the upsetting of a stage-coach in which she was a passenger. The court held that “ the facts that the carriage was upset, and the plaintiff’s wife injured, are prima facie evidence that there was care- • lessness, or negligence, or want of skill on the part of the driver, and throws upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault.” In Railroad Co. v. Pollard, 22 Wall. 348, the doctrine of the case of Stokes v. Saltonstall, srtpra, was attacked by the counsel for the plaintiff in error, but Mr. Chief Justice Waite said : “ We see no necessity for reconsidering that case.” In The Nitro-Glycerine case, supra, Hr. Justice Field delivered the opinion and said : “ The cases between passengers and carriers for injuries stand upon a different footing. The contract of the carrier being to carry safely, the proof of the injury usually establishes a prima facie case, which
It follows that there was evidence relating to the alleged negligence of the respondents, which should have been submitted to the jury. The court erred in assuming that the testimony did not have a tendency to prove that there was.a want of due and reasonable care on the part of the respondents. The authorities which have been cited refer to the upsetting or overturning of a coach or wagon. The respondents used voluntarily a sleigh or “bob-sled” upon a portion of the route between "Watson and Helena, and allege in their answer that this means of conveyance was the most convenient and suitable at the place where the accident occurred. There is nothing in the character of this vehicle which modifies the rules of law that have been referred to.
It is therefore ordered that the judgment of the court below be reversed with costs, and that the action be remanded for a new trial.
Judgment reversed.