owner of a car creates the risk that the car will cause damage, even if the owner is
not driving, and is not at fault in a particular case. Cars make society more
dangerous, and this is reason to hold car owners liable, because they profit from
these danger-creating objects.
In the remainder of this section, we will sketch the development of strict liability
in the light of progressive industrialization.
6.6.1 Railroads and the Development of Strict Liability
According to Von Jhering, the only type of liability is fault liability. However, this
idea was challenged by specific industrial developments. A case in point was the
introduction of steam locomotives.
In the Netherlands, the first railroad was opened between Amsterdam and
Haarlem in 1839. Before the introduction of a strict liability rule in the 1859
Railroad Act, injured passengers had to prove negligence on the part of the railroad
company. Case law after the introduction of the Act reflects the idea that the main
reason for the strict liability is to urge the railway companies to exercise utmost care
in order to provide for the necessary safety of their passengers. This is why, in
derogation of the ordinary negligence rules, the burden of proof was shifted from
the victim to the tortfeasor. The available defense provided for in the Railroad Act
is that the damage was not caused by the fault of the Railroad Company or by the
fault of their employees. That the fault did not lie with the Railroad Company had to
be proven by that company.
The fact that one of the iron bars of a railroad track was broken is not considered to be a
valid excuse that constitutes an absence of fault. However, if a passenger sticks his head
outside the window and injures himself, this will result in a valid defense. The same holds
true when a passenger keeps his fingers between the closing doors when the train is about to
leave. When a passenger is hit by a ladder left unattended on the platform, the Railroad
Company is liable, even if it is unclear whether the ladder was left there by an employee.
The regime that has governed railroad accidents for most of the twentieth
century is basically still that of the Railroad Act of 1859, which contained the
very first provision of strict liability for railroad companies.
We can fairly assume that the Dutch legislative response to the growth of railway
exploitation was inspired by legislation in neighboring countries like Germany. The
acceptance in the middle of the nineteenth century of a strict liability provision was
a major breakthrough on the subject of extracontractual liability where the domi-
nant view was still that liability was only acceptable where the victim could prove
fault on the part of the tortfeasor. This specific derogation of the “holy” general
principles of tort law served as a strong example for future discussions where a
higher level of protection for the victim was advocated. It turned out to be a major
breakthrough.
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