Bonner, Associate Justice.
The first and second errors assigned in this case bring into review so much of the general charge of the court as, in effect, instructed the jury that the liability of the defendant-company depended upon “ the manner and speed of running the train, considering the condition of the track and the state of the weather, if that in any way superinduced the accident.”
The ground of complaint against the company, as alleged in the petition, was, that “the gross negligence, carelessness, and mismanagement of its agents and employees, and the unsafe and dangerous condition of its road, caused the car in which plaintiff was riding to be thrown from the track and upset;' whereupon and by reason of said gross negligence, carelessness, and mismanagement of defendant, by its agents and employees as aforesaid, and the unsafe and dangerous condi[52]*52tion of its road, and the throwing off the car in which plaintiff was riding, from the. track, and upsetting the same, .plaintiff received great personal injury,” &c.
There was no special demurrer to the petition that it did not allege the particular acts of gross negligence, carelessness, and mismanagement upon the part of the agents and employees of the company; and, under the pleadings, had the evidence warranted the charge as given, the subject-matter of it was .prop.er for the consideration of the jury.
The testimony showed that, about three or four hours before the accident happened, an unprecedentedly heavy fall of rain occurred in that immediate locality, but that it had not been sufficient upon the line of the road—even on that part of it— to stop or impede the regular running of the trains, and it does not show that the agents and employees in charge of this particular train, either from information or their personal observation, had notice of the character of the rain-fall in that locality, or of the damage to the road-bed; but, on the contrary, it appears that, to all external appearance, the road-bed and track wure sound, and in good order; that the train at the time was running at but little over half-speed, not by reason of any apprehended danger, but to prevent passing a place at which it was intended to take on wood.
. The charge was calculated to mislead the jury by making the liability of the defendant turn upon the dangerous condition of the track and the state of the weather, without submitting, in this connection, the question of the knowledge of this condition on the part of those in charge of the train. The testimony having shown that the road-bed and track were in good condition until affected by this sudden heavy rain-fall, the knowledge of this changed condition by those in charge of the train was a material ingredient in the alleged negligence, and, as such, should have been submitted to the jury. (Withers v. North Kent Railway Co., 3 Hurl. & N., Am. ed., p. 969.)
The third and fourth errors assigned involve the question of [53]*53the liability of a railroad company for the safe carriage of its passengers.
A carrier of passengers upon an ordinary road is not responsible for its condition, as it is not under his control and supervision. A different rule, however, prevails as regards a railroad corporation, which, under extraordinary grants of franchise, builds, controls, and generally has the exclusive use of its road-bed and track.
A passenger on a railroad train has, by reason of the risk naturally incident to this mode of travel, the right to demand of the company for his safe passage that high degree of care and skill which very cautious persons'general^, in their line of business, are accustomed to use, under similar circumstances, to prevent danger. This care and skill pertains to the original construction, by competent engineers and workmen, of the road-bed, track, engines, ears, and other appliances necessary to carry on properly the business of its road and to operate its trains; the frequent and careful examination of the same to see that they have been thus constructed and have been kept in safe condition and repair to prevent accidents, so far as human skill and foresight could reasonably anticipate and avoid the same; and also to the employment of a sufficient number of good, steady, and competent agents and employees to so conduct and control the train as to insure its careful and skillful management.
If the company is negligent in any of these particulars, and this negligence is the legal cause of injury to the passenger, it is liable in damages. (Shear. & Red. on Neg., secs. 266, 269, 444; Angell on Carriers, secs. 538, 540.)
Railroad companies, however, arc not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances. (Angell on Carriers, sees. 568, 570; Cooley on Torts, sec. 642; Galena and Chicago Railroad Co. [54]*54v. Fay, 16 Ill., 558; Bowen v. N. Y. C. Railroad Co., 18 N. Y., 411.)
This, though, is not to be understood to require of the company every possible precaution which ingenuity might suggest or the skill of science might afford, by which accidents may be avoided, but that it should adopt such precautions of known value as have been practically tested, and should employ such necessary skilled labor, service, and experience as is reasonably within its power to have secured.
The test of liability is, not whether the company used such particular precaution as is evident after the accident happened might have averted it had the danger been known, but whether it used that degree of care and prudence which very cautious, competent persons would have used under the apparent circumstances of the case to prevent the accident, without reasonable knowledge that it was likely to have occurred. (Shear. & Red. on Neg., sec. 266; Bowen v. N. Y. C. Railroad Co., 18 N. Y., 408.)
A railroad company is required to so construct its roadbed and track as to avoid such dangers as could be reasonably foreseen by competent and skillful engineers might be occasioned from the ordinary rain-falls and freshets incident to the particular section of the country through which it is constructed. But it would not be guilty of such culpable negligence as to make it liable in damages if it failed to provide against such extraordinary floods, or other inevitable casualties caused by some hidden force of nature unknown to common experience, and which could not have been reasonably anticipated by the ordinary engineering skill and experience required in the prudent construction of such railroad.
If an accident should happen from such cause on a roadbed and track which had been properly constructed and kept in good repair, when the agents and employees in charge of the train were in the due exercise of that degree of caution and prudence necessary at all times, and when they did not have, from information conveyed to them, or from their own per[55]*55sonal observation, reasonable grounds to anticipate impending danger, and consequently did not use such extraordinary precautions as might have otherwise averted it, then the law characterizes it as an act of God, or such inevitable accident as is incident to all human works, and which would relieve the company from liability.
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Bonner, Associate Justice.
The first and second errors assigned in this case bring into review so much of the general charge of the court as, in effect, instructed the jury that the liability of the defendant-company depended upon “ the manner and speed of running the train, considering the condition of the track and the state of the weather, if that in any way superinduced the accident.”
The ground of complaint against the company, as alleged in the petition, was, that “the gross negligence, carelessness, and mismanagement of its agents and employees, and the unsafe and dangerous condition of its road, caused the car in which plaintiff was riding to be thrown from the track and upset;' whereupon and by reason of said gross negligence, carelessness, and mismanagement of defendant, by its agents and employees as aforesaid, and the unsafe and dangerous condi[52]*52tion of its road, and the throwing off the car in which plaintiff was riding, from the. track, and upsetting the same, .plaintiff received great personal injury,” &c.
There was no special demurrer to the petition that it did not allege the particular acts of gross negligence, carelessness, and mismanagement upon the part of the agents and employees of the company; and, under the pleadings, had the evidence warranted the charge as given, the subject-matter of it was .prop.er for the consideration of the jury.
The testimony showed that, about three or four hours before the accident happened, an unprecedentedly heavy fall of rain occurred in that immediate locality, but that it had not been sufficient upon the line of the road—even on that part of it— to stop or impede the regular running of the trains, and it does not show that the agents and employees in charge of this particular train, either from information or their personal observation, had notice of the character of the rain-fall in that locality, or of the damage to the road-bed; but, on the contrary, it appears that, to all external appearance, the road-bed and track wure sound, and in good order; that the train at the time was running at but little over half-speed, not by reason of any apprehended danger, but to prevent passing a place at which it was intended to take on wood.
. The charge was calculated to mislead the jury by making the liability of the defendant turn upon the dangerous condition of the track and the state of the weather, without submitting, in this connection, the question of the knowledge of this condition on the part of those in charge of the train. The testimony having shown that the road-bed and track were in good condition until affected by this sudden heavy rain-fall, the knowledge of this changed condition by those in charge of the train was a material ingredient in the alleged negligence, and, as such, should have been submitted to the jury. (Withers v. North Kent Railway Co., 3 Hurl. & N., Am. ed., p. 969.)
The third and fourth errors assigned involve the question of [53]*53the liability of a railroad company for the safe carriage of its passengers.
A carrier of passengers upon an ordinary road is not responsible for its condition, as it is not under his control and supervision. A different rule, however, prevails as regards a railroad corporation, which, under extraordinary grants of franchise, builds, controls, and generally has the exclusive use of its road-bed and track.
A passenger on a railroad train has, by reason of the risk naturally incident to this mode of travel, the right to demand of the company for his safe passage that high degree of care and skill which very cautious persons'general^, in their line of business, are accustomed to use, under similar circumstances, to prevent danger. This care and skill pertains to the original construction, by competent engineers and workmen, of the road-bed, track, engines, ears, and other appliances necessary to carry on properly the business of its road and to operate its trains; the frequent and careful examination of the same to see that they have been thus constructed and have been kept in safe condition and repair to prevent accidents, so far as human skill and foresight could reasonably anticipate and avoid the same; and also to the employment of a sufficient number of good, steady, and competent agents and employees to so conduct and control the train as to insure its careful and skillful management.
If the company is negligent in any of these particulars, and this negligence is the legal cause of injury to the passenger, it is liable in damages. (Shear. & Red. on Neg., secs. 266, 269, 444; Angell on Carriers, secs. 538, 540.)
Railroad companies, however, arc not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances. (Angell on Carriers, sees. 568, 570; Cooley on Torts, sec. 642; Galena and Chicago Railroad Co. [54]*54v. Fay, 16 Ill., 558; Bowen v. N. Y. C. Railroad Co., 18 N. Y., 411.)
This, though, is not to be understood to require of the company every possible precaution which ingenuity might suggest or the skill of science might afford, by which accidents may be avoided, but that it should adopt such precautions of known value as have been practically tested, and should employ such necessary skilled labor, service, and experience as is reasonably within its power to have secured.
The test of liability is, not whether the company used such particular precaution as is evident after the accident happened might have averted it had the danger been known, but whether it used that degree of care and prudence which very cautious, competent persons would have used under the apparent circumstances of the case to prevent the accident, without reasonable knowledge that it was likely to have occurred. (Shear. & Red. on Neg., sec. 266; Bowen v. N. Y. C. Railroad Co., 18 N. Y., 408.)
A railroad company is required to so construct its roadbed and track as to avoid such dangers as could be reasonably foreseen by competent and skillful engineers might be occasioned from the ordinary rain-falls and freshets incident to the particular section of the country through which it is constructed. But it would not be guilty of such culpable negligence as to make it liable in damages if it failed to provide against such extraordinary floods, or other inevitable casualties caused by some hidden force of nature unknown to common experience, and which could not have been reasonably anticipated by the ordinary engineering skill and experience required in the prudent construction of such railroad.
If an accident should happen from such cause on a roadbed and track which had been properly constructed and kept in good repair, when the agents and employees in charge of the train were in the due exercise of that degree of caution and prudence necessary at all times, and when they did not have, from information conveyed to them, or from their own per[55]*55sonal observation, reasonable grounds to anticipate impending danger, and consequently did not use such extraordinary precautions as might have otherwise averted it, then the law characterizes it as an act of God, or such inevitable accident as is incident to all human works, and which would relieve the company from liability.
Even under the rigid rules of the common law, which made common carriers insurers of the safe delivery of all articles committed to their care, such cause would have excused them. (Shear. & Red. on Neg., sec. 270; Withers v. North Kent Railway Co., 3 Hurl. & N., Am. ed., 969; Railroad Co. v. Reeves, 10 Wall., 176; Livezey v. Philadelphia, 64 Penn., 106.)
The undisputed facts in this case show, substantially—
1. That defendant’s road was of first class, only three years old, in good order at the place of the accident, and that the ties and iron were sound and good.
2. That in the latter part of the day, and about dark of the day of the accident, an unprecedentedly heavy rain fell in that locality, which was not general, but which caused the embankment to give way under the train as it passed over the place, and thus caused the disaster.
3. That the track at that place was sound and in good condition, as far as could be seen, only one hundred and twenty-five minutes prior to the occurrence, when the north-bound train passed over it.
4. That between that time and the occurrence of the accident, that section of the road embracing the place of the accident was inspected and found and left in good condition, and was still in good condition at the time the wrecked train ran on it, as far as could be seen; had its usual appearance to an engineer who had been running over it ever since the road was .built.
5. That the train and engine were in good condition, having been so found, on examination, only one hour before the accident-, and were properly manned.
6. That the accident occurred seventy minutes after leaving [56]*56Palestine, and sixteen miles from that place, when the train was running at about hall-speed, on a track which was apparently safe at all times for that rate.
7. That it had rained during the day at Palestine, but not so hard as to make it necessary to give orders in reference to the track.
The evidence, as thus disclosed by the record, shows that the defendant-company had used a commendable degree of skill, prudence, and vigilance in the construction and management of its road, and that the misfortune to the plaintiff was the result of one of those inevitable accidents of which passengers assume the risk, and for which the law does not hold the company responsible in damages. (Angell on Carriers, sec. 523.)
We are of opinion that the court erred in the charge as above shown, and also in refusing a new trial, because the verdict was contrary to the law and the evidence; for which errors the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered March 18, 1880.]