Vermont & Massachusetts Railroad v. Fitchburg Railroad

Bigelow, C. J.

In the view which we take of this case, it is quite immaterial to its decision whether the defendants are held liable under their written contract with the plaintiffs, or by virtue of the legal responsibility assumed by them in undertaking to receive and transport over their road the cars of the plaintiffs. If, by the true construction of the contract, it is held that it was intended to include within its terms the cars in which goods and merchandise are transported, then, on the facts stated, we think it clear that the defendants are liable in this action. The stipulation is clear and explicit that the defendants shall bear all damages arising from the negligence of their servants or agents, or from any defect in the road. There can be no doubt that the proximate cause of the destruction of the cars belonging to the plaintiffs was a defect in the road. The bed or roadway on which the rails of the defendants’ road were laid was washed away, leaving them without support, so that they were insufficient to bear the weight of the cars in their transit over them. Whatever may have been the origin or cause of this condition *468of the road, it is clear beyond controversy that it was in a defective and unsafe condition, and that this condition was the direct and immediate cause of the injury to and destruction of the plaintiffs’ property. The agreement of the defendants is not that they will be responsible for defects in the road arising from their own negligence or the carelessness of their servants. If such had been the stipulation, the argument urged in behalf of the defendants would have had great force. But the agreement is that they shall be liable for all damages caused by such negligence or carelessness, or from a defect in the road. The insertion of this last clause in the connection in which it stands, and in a disjunctive form, removes all ambiguity, and indicates a clear intention to assume a liability for all losses arising from a defective condition of the road, whether attributable to the negligence of the defendants or to some other independent cause. Looking therefore at the terms of the written contract only, we are of opinion that the defendants would be liable in this action, on the facts stated, if it should be held that the parties intended to embrace within the stipulations the cars of the plaintiffs while passing over the road of the defendants.

But if, as we are inclined to think, the written agreement is confined to goods and merchandise only which may be transported over the defendants’ road in the cars of the plaintiffs, and do not include the latter, we are of opinion, on full consideration, that the defendants are liable for the destruction of the cars of the plaintiffs, under the legal duty and responsibility which attached to them in consequence of their general undertaking to transport them over their road. We can see no sufficient reason for holding that, in performing this service, they are not to be regarded as common carriers, and chargeable for any loss not caused by the act of God or the public enemy. It is not denied that the ordinary business of the defendants is that of common carriers, and that where there is no express stipulation for a more restricted liability, or the nature of the service which they are called on to render is not such as to impose on them a different kind or degree of responsibility, they would be liable as insurers of property intrusted to them for transportation. ' But *469it is urged by the defendants that their relation towards the plaintiffs, as owners of a railroad connecting with their own, and the consequent duty which they are required to perform of drawing the cars of the plaintiffs over their road, are of a peculiar and exceptional nature, and that they ought not to be held to be carriers within the common law rule in performing this service. It seems to us however that the reasons on which this rule is founded do apply with equal force to them when so employed, as when engaged in the ordinary business which they undertake to carry on. They act in their capacity as public carriers, and receive the cars to transport them from place to place ; they draw them by their own engines, the plaintiffs being restrained by law, Gen. Sts. c. 63, § 119, from using their own motive power for the purpose; they take the cars into their exclusive custody and control, the plaintiffs and their servants having no charge or care over them whatever ; and they receive for the services rendered a reasonable compensation, in proportion to the time, labor and expense incurred and the risk which they run. It seems to us that all the elements which go to make up the legal characteristics of the business of a common carrier are included within this statement of the bind of service which the defendants render in transporting the cars of the plaintiffs. It cannot be said that the obligation which the statute imposes on the defendants to draw the cars of the plaintiffs over their road, Gen. Sts. c. 63, § 117, affords any ground for limiting their liability for loss or injury to them while in their possession. A like duty is imposed by law on every common carrier. His employment is a public one, and he is bound to carry all articles offered to him, coming within the scope of his ordinary employ ment, for a reasonable compensation.

We are unable to see any valid ground for a distinction between the case at bar and the familiar one of a common carrier undertaking to transport the property of another carrier over the route upon which the former usually transacts his business. A ferryman undertaking to carry a wagon or a coach used in transporting merchandise or passengers would be liable as a common carrier for the articles while in his care and custody *470in crossing the ferry. A carrier who receives a box belonging to another carrier, in which merchandise is inclosed, for the purpose of transportation, would be liable for the loss of the box to the carrier who owned it as well as for the merchandise contained in it. The true ground on which the liability in all these cases rests is, that the owner of the property carried surrenders all control and custody over it, and commits it to the exclusive charge of the person who undertakes to carry it. In the cases where the owners of tow boats have been held not to be dable for injuries to or the loss of boats which they were engaged in towing from place to place, the ground of the decisions is that they do not in performing the services take exclusive possession and control of the boats attached to them, but that the officers and men belonging to the latter remain on board and exercise a partial direction over their movements. No such ground of distinction exists in the case at bar.

For these reasons we are of opinion that the defendants are liable as common carriers for the destruction of the plaintiffs’ cars, while they were in transit over the road of the defendants. See New Jersey Railroad, &c. v. Pennsylvania Railroad, 3 Butcher, 100; Smith v. Pierce, 1 Louis. 349 ; Alexander v. Greene, 3 Hill, 9; S. C. 7 Hill, 533 ; Sproul v. Hemmingway, 14 Pick. 1. Judgment for the plaintiffs.