
38 U.S. 181 (1839)
13 Pet. 181
WILLIAM B. STOKES, PLAINTIFF IN ERROR,
vs.
FRANCIS W. SALTONSTALL, DEFENDANT IN ERROR.
Supreme Court of United States.

*186 The case was submitted to the Court, in printed and written arguments, by Mr. Schley, for the plaintiff in error; and by Mr. Johnson, for the defendant.
*190 Mr. Justice BARBOUR delivered the opinion of the Court.
This is a writ of error to a judgment of the Circuit Court of the United States for the fourth circuit, and district of Maryland.
It was an action on the case, brought by the defendant in error, against the plaintiff in error, and Richard C. Stockton, to recover damages for an injury sustained by his wife, by the upsetting of a stage coach in which she was a passenger, and of which said Stockton and Stokes were the proprietors. The suit was brought in the name of Saltonstall alone; but there is in the record an agreement signed by the counsel of the parties, stipulating, amongst other things, that the plaintiff might recover in it, any damages which might be recovered in an action by himself and wife, or by himself alone.
The declaration alleges that the injury complained of, was caused by the negligence and want of skill of the driver, then in the employment of the said Stockton and Stokes, and engaged in driving their coach, in which the plaintiff's wife was a passenger at the time she received the injury. In the progress of the case, Stockton, one of the defendants, died, and his death having been suggested upon the record, the case proceeded against Stokes. He pleaded the general issue of "not guilty," on which issue was joined.
At the trial, the defendant took a bill of exceptions to the ruling of the Court; from which it appears, that he asked the Court to give to the jury sixteen several instructions, and the plaintiff asked of the Court two instructions; all of which, as well those asked by the defendant, as by the plaintiff, the Court refused. But the Court did give the jury the four following instructions, to wit:
1. That the defendant is not liable in this action unless the jury find that the injury of which the plaintiff complains was occasioned by the negligence or want of proper skill or care in the driver of the carriage, in which he and his wife were passengers: and the facts that the carriage was upset, and the plaintiff's wife injured, are prima facie evidence that there was carelessness, 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.
2. It being admitted that the carriage was upset, and the plaintiff's wife injured, it is incumbent on the defendant to prove that the driver was a person of competent skill, of good habits, and in every respect qualified, and suitably prepared for the business in which he was engaged; and that he acted on this occasion with reasonable skill, and with the utmost prudence and caution; and if the disaster in question was occasioned by the least negligence, or want of skill, or prudence on his part, then the defendant is liable in this action.
*191 3. If the jury find there was no want of proper skill, or care, or caution on the part of the driver, and that the stage was upset by the act of the plaintiff or his wife, in rashly and improperly springing from it, then the defendant is not liable to this action: but if the want of proper skill or care of the driver placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover; although the jury may believe from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape, may have increased the peril, or even caused the stage to upset; and although they may also find that the plaintiff and his wife would probably have sustained little or no injury if they had remained in the stage.
4. If the jury shall find that the driver was a person of competent skill, and in every respect qualified and suitably prepared for the business in which he was engaged, and that the accident was occasioned by no fault or want of skill or care, on his part, or that of the defendant or his agents, but by physical disability arising from extreme and unusual cold, which rendered him incapable for the time to do his duty; then the defendant is not liable in this action.
Under these instructions, the plaintiff obtained a verdict for seven thousand one hundred and thirty dollars, for which the Court rendered a judgment in his favour; and from that judgment this writ of error is taken.
We consider it altogether unnecessary to notice any of the instructions asked for by the defendant, and which the Court refused to give, because those which they did give cover the whole ground; and therefore, it depends upon their correctness whether the judgment is to be affirmed or not.
We think that the Court laid down the law correctly in each and all of these instructions. It is certainly a sound principle that a contract to carry passengers differs from a contract to carry goods. For the goods, the carrier is answerable, at all events, except the act of God, and the public enemy. But although he does not warrant the safety of the passengers, at all events, yet his undertaking and liability as to them, go to this extent: that he, or his agent, if, as in this case, he acts by agent, shall possess competent skill; and that as far as human care and foresight can go, he will transport them safely. The principle is in substance thus laid down in the case of Christie vs. Griggs, 2 Campbell, 79.
So it is also in the case of Aston vs. Heaven, 2 Espinasse's Rep. 533, where it is said, that coach owners are not liable for injuries happening to passengers, from accident, or misfortune, where there has been no negligence, or default in the driver; that the action stands on the ground of negligence, but that a driver is answerable for the smallest negligence.
The principle is thus laid down in 2 Kent's Commentaries, 466: "The proprietors of a stage coach, do not warrant the safety of *192 passengers in the character of common carriers; and they are not responsible for mere accidents to the persons of the passengers, but only for the want of due care." What the author understood to be due care, will appear from this consideration, that in support of his proposition, he refers to the two cases which we have just cited.
In Story on Bailments, many cases are collected together upon this subject, in pages 376-7, as illustrative of the principle, which is by that author laid down in these words: "If he (that is, the driver) is guilty of any rashness, negligence, or misconduct, or is unskilful, or deviates from the acknowledged custom of the road, the proprietors will be responsible for any injuries resulting from his acts. Thus, if the driver drives with reins so loose that he cannot govern his horses, the proprietors of the coach will be answerable. So if there is danger in a part of the road, or in a particular passage, and he omits to give due warning to the passengers. So if he takes the wrong side of the road, and an accident happens from want of proper room. So if, by any incaution, he comes in collision with another carriage." To which we will add the further example: wherever there is rapid driving, which, under the circumstances of the case, amounts to rashness. In short, says the author, he must in all cases exercise a sound and reasonable discretion in travelling on the road, to avoid dangers and difficulties; and if he omits it, his principals are liable.
The only case which is recollected to have come before this Court on this subject, is that of Boyce vs. Anderson, 2 Peters, 150. That was an action brought by the owner of slaves, against the proprietor of a steamboat, on the Mississippi, to recover damages for the loss of the slaves, alleged to have been caused by the negligence or mismanagement of the captain and commandant of the boat. The Court distinguished slaves, being human beings, from goods; and held, that the doctrine as to the liability of common carriers for mere goods, did not apply to them, but that in respect of them, the carrier was liable only for ordinary neglect. The Court seem to have considered that case as being a sort of intermediate one between goods and passengers. We think, therefore, that any thing said in that case, in the reasoning of the Court, must be confined in its application to that case; and does not affect the principle which we have before laid down. That principle, in our opinion, fully justifies the first and second instructions given by the Court; except that part of those instructions which relates to the onus probandi: and although we think this portion of the instructions as well founded, in justice and law, as the other, yet it rests upon a different ground. The first part has relation to the liability of the defendant, the second, to the question, on whom devolves the burden of proof. If the question were one of the first impression, we should, upon the reason and justice of the case, adopt the principle laid down by the Circuit Court. But although there is no case which could have the weight of authority in this Court, we are not without a decision in relation to it. The very point was decided in *193 2 Camp. 80; where it is said by Mansfield, Chief Justice, that he thought the plaintiff had made a prima facie case by proving his going on the coach, the accident, and the damage he had suffered.
It is objected, however, in the printed argument which has been laid before us, that although the facts of the overturning of the coach, and the injury sustained, are prima facie evidence of negligence, they did not throw upon the defendant the burden of proving that such overturning and injury were not occasioned by the driver's default, but only that the coachman was a person of competent skill in his business; that the coach was properly made, the horses steady, &c.
Now, taking that portion of the first and second instructions which relates to the burden of proof together, we understand them as substantially amounting to what the objection itself seems to concede to be a proper ruling, and what we consider to be the law. For although, in the first, it is said, that these facts threw upon the defendant the burden of proving that the accident was not occasioned by the driver's fault; yet, in the second, it is declared, that it was incumbent on the defendant, in order to meet the plaintiff's prima facie case, to prove that the driver was a person of competent skill, of good habits, and in every respect qualified, and suitably prepared for the business in which he was engaged; and that he acted on the occasion with reasonable skill, and with the utmost prudence and caution.
This affirmative evidence, then, was pointed out by the Court as the means of proving what was in terms stated in the form of a negative proposition before, that is, that the accident was not occasioned by the driver's fault. The third instruction also announces a principle, which we think stands supported by the soundest reason; and we should, therefore, adopt it as being correct, if it were altogether a new question.
But this, too, is in accordance with the doctrine of Lord Ellenborough, in 1 Starkie's Cases, 493, in which he says, that to enable the plaintiff to sustain the action it is not necessary that he should have been thrown off the coach; it is sufficient if he were placed by the misconduct of the defendant, in such a situation as obliged him to adopt the alternative of a dangerous leap, or to remain at certain peril; if that position was occasioned by the fault of the defendant, the action may be supported. On the other hand, if the plaintiff's act resulted from a rash apprehension of danger, which did not exist, and the injury which he sustained is to be attributed to rashness and imprudence, he is not entitled to recover.
The instruction which we are now considering is framed in the spirit of the principle which we have just stated, and we think it wholly unexceptionable.
The fourth instruction which was given to the jury was in favour of the defendant, now plaintiff in error, and, therefore, need not be *194 considered. Upon the whole, we think that there is no error in the judgment. It is, therefore, affirmed with costs.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Maryland, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the Circuit Court in this cause be, and the same is hereby, affirmed with costs and damages at the rate of six per centum per annum.
