The verdict in this case can, I think, be sustained, upon other grounds. *Page 218 Though the circuit judge presented the case to the jury as though the negligence of Evarts was not embraced in the contract, if gross and culpable, and that such negligence, if found by them, fixed the liability of the defendants, yet such negligence was discussed and considered in reference to the true point upon which, I think, the defendants' liability depended. The judge charged the jury that, "if they should find that negligence in the construction of the bridge, or in suffering it to remain in that condition, was gross and culpable in its character, amounting to a fraud or crime (meaning fraud or crime in Evarts), then the defendants were liable, notwithstanding the conditions of the pass." In this portion of the charge, the circuit judge presented substantially the true issue to the jury. Though this negligence was the immediate and personal fault or crime of Evarts, the trackmaster, still it was, in contemplation of law, the negligence of his principals, the defendants, as the proprietors of the road.
The common carrier always guarantees the safety of the vehicle in which the passenger is transported. The law implies a contract, in all cases, on the part of the carrier, that the vessel, or coach, or vehicle, whatever it may be, is sufficient for the business in which it is employed. (Camden Co. v.Burke, 13 Wend., 628; 5 East., 428; Story on Bail., §§ 509, 592.) The railroad is part of the machinery for the carriage of passengers, as much as the stage-coach or ship. (Curtis v.Rochester and Syracuse R.R. Co., 18 N.Y., 536.) The negligence of Evarts in constructing the bridge over the Sauquoit of unsound, unsafe and improper materials, and the suffering of such bridge, thus negligently constructed, to remain in use, was the negligence of the defendants, as owners and proprietors of the railroad, and was a breach of this implied warranty.
This implied warranty is not embraced within the terms, scope, or intent of the contract or agreement made with Mr. Perkins, indorsed on the pass received by him. It is like the warranty of title, never necessarily embraced in terms in the contract of sale of goods or in the warranty of their soundness, *Page 219 goodness or other qualities. As well might a man, who was selling property not his own, reserve the right to cheat the vendee in such sale, as for a carrier to reserve the right to keep his road unsafe or to send the passenger by an unsafe conveyance.
The defendants are carriers of persons and passengers over their own railroad by the powerful agency of steam. They are bound to construct their railroad track with all possible care, and are bound to keep it in a safe and proper condition. They are bound to exercise the utmost skill and care in the preparation and management of their road, and of all the means of conveyance used thereon. The defendants, as common carriers of passengers, impliedly warrant and guarantee to every person who gets into one of their cars to be transported over their road, or any point or part thereof, that such road is landworthy, that its track, bridges and all its structures are made and constructed in the most skillful manner and of suitable and proper materials, and are, in all respects, kept and maintained in a sound and safe condition, that their locomotives and cars and all their appurtenances are constructed with the utmost care and skill and are kept in sound and proper order, and also, that they have provided for the care and management of the trains on their said road, careful, skillful, competent and sober engineers, conductors, switch-tenders, and all other necessary agents. (Story on Bail., § 593; Curtis v. Rochester and Syracuse R.R.Co., 18 N.Y., 537; Angell on Carrier, §§ 78, 338; Hegeman v.Western R.R. Co., 3 Kern., 22.) But if the contract had contained an express exemption to the defendants from all responsibility by reason of the unsafe condition of their road and its bridges, locomotives and cars, such contract would be utterly void as against public policy. It would fall within the condemnation of the rule that no one shall stipulate for his own fraud or personal negligence.
The negligence, therefore, which the jury have found in respect to the construction and maintenance of said bridge was, in fact and legal effect, the negligence of the defendants as principals and proprietors of said railroad, and for which *Page 220 the judge properly held that they were liable. The verdict was therefore right, upon this discrimination between the negligence of the principal and that of the agents, and the real issue, upon which the defendants' liability depends, was necessarily and fairly tried.
The contract in this case, I think, is limited to that class of agents concerned in running and taking care of the train which carried the deceased, embracing the conductor, engineer and ordinary attendants of a train, such as brakesmen, baggagemen and switch-tenders, whose duty it was to watch for such trains.
The distinction I make between those acts of negligence which should be deemed the negligence of the principal and that of the agent, is recognized in numerous cases. It applies particularly in that class of cases where the principal has been held liable to one agent for the negligence of another agent of a common superior. In such cases it is quite generally conceded that the principal will be liable if he employs an unskillful or incompetent agent in any department of his business, or uses defective or improper machinery. This court so held in the case of Keegan v. The Western Railroad Company; (and see 6 Barb., 243; Story on Agency, § 321; Farwell v. B. W.R.R. Co., 4 Metc., 49; Coon v. Syracuse R.R. Co., 1 Seld., 495.)
When the principal is a natural person, the distinction between the acts of the principal and those of the agent is quite apparent and universally recognized. The difficulty in cases like the present arises from the fact that the defendant is a corporation, and all its operations are necessarily carried on through the personal instrumentality of numerous agents, exercising different offices and performing different and distinct functions and duties. But this circumstance should not give the defendants any rights or immunities in the transactions of business superior to those possessed by natural persons. Courts must look behind the artificial body which their charter creates, to the real principals — the stockholders of the defendants' corporation. They run the defendants' railroad, *Page 221 and carry on, thereon and therewith, the business of carriers of persons and property. They have a corporate name, in which they contract, and by which they sue and in which they are sued; but, aside from the privileges conferred by their charter, they are really liable in such corporate name, through their property invested in its stock and employed in its business, to the same extent as if they were members of a joint-stock company, or simply partners. The rule of their liability and responsibility in the transaction of business in and through the corporate name they employ, is precisely the same which would attach to them as natural persons. If a single person run the defendants' railroad, or many persons in the character of copartners, the single owner or each of the partners would be responsible as a principal for all its liabilities for negligence or otherwise, and could not exempt himself by contract from such liability, except for acts of subordinate agents. The officers and all the superior class of agents who direct and control the operations of the defendants' railroad; who set the machine in motion; who employ its numerous engineers, conductors and other agents; who purchase its locomotives and cars, and direct the construction and repair of its road, bridges and other structures; all, I conceive, stand in the place of the corporation, as respects the public and third persons, precisely as though they were, respectively, members of a copartnership owning and controlling said railroad. This class of agents do the work of their principal, and their acts and negligences should be deemed those of the principal.
The contract, too, in this case, I think, was prospective, and related only to such negligence as might transpire in connection with the running of the particular train on which Mr. Perkins was to go. It did not embrace, I think, such past negligence as was involved in the construction of a railroad bridge some three or four years previously, or in the maintenance of such bridge.
For these reasons, I think, the judgment should be affirmed. But a majority of my brethren think otherwise, and are of the opinion that the case having been tried and disposed of at the *Page 222 circuit and at the general term upon different and erroneous principles, the verdict cannot be retained upon the views herein expressed, but the case should go back to the circuit for re-trial.
The judgment must, therefore, be reversed, and a new trial be granted, with costs, to abide the event.
Judgment reversed, and new trial ordered.