of its passengers, it is bound to use a high degree of skill and vigilance to guard against accidents which may be attended with injurious consequences to them. This duty is not discharged without the utmost care and diligence which human prudence and foresight will suggest to secure the safety of its passengers. And this vigilance is to be exercised by the company to see that its road, and appliances used in operating it, are and remain in good condition and free from the defects; and a latent defect which will relieve it from responsibility is such only as no reasonable degree of human skill and foresight could guard against: Hegeman v. Western R. R. Co., 13 N. Y. 9; Bowen v. New York Cent. R. R. Co., 18 N. Y. 408; 72 Am. Dec. 529; Brown v. New York Cent. R. R. Co., 34 N. Y. 404; Caldwell v. New Jersey S. Co., 47 N. Y. 282; Pennsylvania Co. v. Roy, 102 U. S. 451.

This measure of responsibility is deemed essential to the proper protection of passengers, who must necessarily rely wholly upon the precautionary care and diligence of the carrier so far as their safety depends upon the condition of the road and the means provided for their conveyance. The evidence warranted the conclusion that the broken appliance which in the present case was the cause of the injury complained of was defective, and that if it did not become so by its use upon the car, it was so when put on it. The witnesses did not agree about its apparent condition at the time it broke. But evidence on the part of the plaintiff tended to prove that at the point where it severed there was a flaw in the spindle three fourths of an inch in depth. Such a flaw would extend nearly half-way through the spindle, which was a round bar of iron one and five eighths of an inch in diameter. This necessarily weakened it, and permitted the inference that such imperfect condition was the cause of its breakage. Assuming that this flaw existed, it is not unreasonable to suppose that it may have been in the iron when it was put on the car, and that although the car had afterward been in use on the road for two years, the spindle may not have been subjected to the peculiar strain which severed it until the time in question. When it was made to be put upon he car, the duty was to apply the known tests to ascertain whether it was in all respects fit for the purpose it was intended to serve; and if, in consequence of the failure to do so, the defect was not discovered, and the accident occurred, the defendant was responsible. That question was considered in the Hegeman and Caldwell cases, before cited.

There was some evidence tending to prove that tests might be successfully applied by skilled workers in iron to discover a flaw in a wrought-iron bar; that while this could be done when it was made, it would afterward be more difficult to do it satisfactorily to disclose a flaw concealed within it, and not coming to the surface, without impairing the bar in other respects. There was evidence warranting the inference that the flaw in this one had no surface covering. It did not necessarily appear by the evidence whether this was a flaw produced in the process of manufacture of the spindle, or a fracture resulting from its use on the car. In view of the situation, the trial court submitted to the jury the question whether the defendant had failed to perform its duty in not taking the bar out of the ear, and, by proper means, inspecting it, with a view to ascertain whether it was or remained in suitable condition for use, and to this part of the charge the defendant's counsel excepted. It may be assumed, for the purposes of the question, that no inspection had been made of this spindle during the two years it had remained on the car, and that the removal and examination of it were not within the system of inspection adopted by the defendant. The view which a carrier of passengers may have of what is or is not essential by way of inspection of its road and appliances is not necessarily conclusive, although entitled to consideration upon the inquiry whether the system is adequate to the demand of duty upon the vigilance of the company. The same degree of care and watchfulness is not alike requisite to all of the various portions of the machinery and appliances. The apparent necessity for frequency of examination is somewhat dependent upon the liability to impairment and the consequences which may be apprehended as the result of defective condition. But whether the system and the manner of its execution are all that may be required of the carrier cannot be measured by any rule of law to be applied by the court. It must, in view of the circumstances appearing by the evidence, be one of fact for the jury to determine, upon proper instructions relating to the degree of care imposed upon the company; and while it is true that the question of fact so presented is somewhat speculative in the sense that it is not measured by any definite rule, it must nevertheless become a matter of judgment, to be expressed by the jury, and founded upon the evidence. They have found that the defendant did not use that care which it should have exercised to ascertain that the draw-bar was not

in suitable condition, and that if it had performed its duty in that respect the accident would not have occurred. It cannot be said that the continuance of the connection with the engine, or with each other, of the cars of a train, is not essential to the safety of passengers, or that serious injury may not be within apprehension as the result of such disconnection while in rapid motion. It is, however, urged that the earlier rule adopted by the court as to the degree of vigilance required of a railroad company in the conveyance of passengers is not sustained by the later adjudications, and reference is made to some cases. It may be observed that those so cited do not relate to the machinery or the appliances and apparatus which constitute and sustain the operative means of conveyance and transportation, but to other structures provided by the carrier, and the manner of their construction, and to which a less degree of care is applicable. Such are the cases of Hayes v. Forty-second Street etc. R. R. Co., 97 N. Y. 259; Lafflin v. Buffalo etc. R. R. Co., 106 N. Y. 136; 60 Am. Rep. 433; Kelly v. New York etc. R'y Co., 109 N. Y. 44; Palmer v. Pennsylvania Co., 111 N. Y. 488; Kelly v. Manhattan R'y Co., 112 N. Y. 443. The general doctrine of the earlier cases in this state on the subject does not seem to have been modified by the later ones, but has quite uniformly been approved, so far as applicable. Coddington v. Brooklyn C. R. R. Co., 102 N. Y. 66.

The evidence was such as to present a question of fact for the jury, and to require its submission to them. We think there was no error in the portion of the charge above mentioned, and that none of the exceptions were well taken.

The judgment should be affirmed.

CARRIERS-PASSENGERS- CARE REQUIRED. As to the care required of carriers with reference to the safety of their passengers, see Wormsdorf v. Detroit City R'y Co., 75 Mich. 472; 13 Am. St. Rep. 453, and note; and as to the degree of care exacted of carriers, see note to Memphis etc. R'y Co. v. Stringfellow, 51 Am. Rep. 602-606.

RAILROADS. - DUTY AS TO THE CONSTRUCTION OF ROAD-BEDS, ETC.: See Columbus etc. R'y Co. v. Bridges, 86 Ala. 448; 11 Am. St. Rep. 58, and note; as to the construction of vehicles and means of transportation: Galena etc. R. R. Co. v. Fay, 16 Ill. 558; 63 Am. Dec. 323.

NEGLIGENCE

QUESTION FOR THE JURY. — Negligence is ordinarily a question of fact for the jury: Dowell v. Guthrie, 99 Mo. 653; ante, p. 598, and note.

VOUGHT v. WILLIAMS.

[120 NEW YORK, 253.J

VENDOR AND PURCHASER OF REAL ESTATE. - · CONTRACT THAT TITLE SHALL BE FIRST-CLASS, AND SHALL BE PASSED UPON BY THE PURCHASER'S LAWYER, does not make the decision of such lawyer in favor of the title a condition precedent to the right of the vendor to enforce the contract, if in fact, beyond all dispute, the title is good. VENDOR AND PURCHASER OF REAL ESTATE-FIRST-CLASS TITLE, What is. — Stipulation in a contract for the purchase of real estate that the title shall be first-class means nothing more than that it shall be marketable. VENDOR AND PURCHASER OF REAL ESTATE. EVERY PURCHASER OF REAL ESTATE IS ENTITLED TO A MARKETABLE TITLE free from encumbrances and defects, unless he expressly stipulates to accept a defective title. VENDOR AND PURCHASER OF REAL ESTATE. A MARKETABLE TITLE IS one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some fact appearing in the course of its deduction, but the doubt must be such as affects the value of the land or will interfere with its sale.

A PURCHASER WILL NOT BE COMPELLED TO TAKE PROPERTY the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and if he wishes to sell it, be reasonably certain that no flaw or doubt will arise to disturb its market value.

VENDOR AND PURCHASER OF REAL ESTATE. ONE WILL NOT

В Сом. PELLED TO PERFORM A CONTRACT for the purchase of real estate, if it appears that kis vendor's title depends upon the death of a particular person, the only evidence of whose death is, that, twenty-four years before the trial of the case, being a young unmarried man, in feeble health and of dissipated habits, he left home, from causes unknown, and has not been seen or heard from since, and when, if still living, he is only forty-seven years of age, and there is no title by adverse possession, and the contra t stipulated for a first-class title.

ACTION for specific performance of a contract for the purchase of real estate. The contract stipulated that the title to the land should be first-class, and should be passed upon by a lawyer or conveyancer to be designated by the defendant. The defendant refused to accept the property and make pay. ment therefor, on the ground that the title was not marketable. The defect in the title was, that the property had in the year 1853 descended to Mary P. Richardson and her two sons, William H. Richardson and Giles B. Richardson. The latter was born in May, 1840, and lived with his mother until 1863, at which latter date he was unmarried, in poor health, out of business, and very dissipated. He then left home, and about a week afterwards was seen in Albany, in a destitute condition and in want of clothing, and to the person who saw him he stated he was going to Troy to procure work. He was

never afterwards seen nor heard of by any of his friends or members of his family. In 1875, his mother and brother conveyed the property in controversy to the plaintiff's grantor, claiming to have succeeded to the interest of Giles B. Richardson upon the assumption of his death. The judgments of the trial court and of the general term were in favor of plaintiff.

James B. Perkins, for the appellants.

George F. Yeoman, for the respondent.

BROWN, J. The provision that the title was to be passed upon by the defendant's lawyer or conveyancer did not make the decision of the conveyancer that the title was good a condition precedent to the right of the plaintiff to enforce the performance of the contract.

If a decision to that effect was refused unreasonably, the failure to obtain it would not defeat a recovery, and it would have been unreasonably refused if in fact, beyond all dispute, the title was good: Folliard v. Wallace, 2 Johns. 395; Thomas v. Fleury, 26 N. Y. 26; City of Brooklyn v. Brooklyn C. R. R. Co., 47 N. Y. 475; 7 Am. Rep. 469; Bowery N. Bank v. Mayor etc., 63 N. Y. 336; Duplex S. B. Co. v. Garden, 101 N. Y. 388; 54 Am. Rep. 709; Doll v. Noble, 116 N. Y. 230; 15 Am. St. Rep. 398.

The stipulation that the title should be first-class could mean nothing more than that it should be marketable.

as to

The trial court refused to find that Giles B. Richardson, Jr., was dead, and it did find that there was no evidence whether or not he was dead, except the presumption, if any, which is raised from the facts herein before stated with regard to him."

It found, as conclusion of law, "that the title of the plaintiff to said premises, depending, as it does, upon the disputed question of fact, is not a marketable title, and the defendant was entitled, because of said defect, to refuse to carry out the said contract."

It is an established principle of law that every purchaser of real estate is entitled to a marketable title free from encumbrances and defects, unless he expressly stipulates to accept a defective title: Burwell v. Jackson, 9 N. Y. 535; Delavan v. Duncan, 49 N. Y. 485.

A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some