The opinion of the court was delivered by
Redfield, Ch. J.I. The defendants are trustees for the benefit of certain bondholders of the Vermont Central Railroad, and as such, assignees of the company. The first question made in the case is, whether the defendants are personally liable upon the contracts made by the operatives upon the road, or for their negligence or misconduct, while they continue to operate the road, and receive freight and pay for carrying passengers, for the benefit of the cestuis que trust.
It is well settled in practice, and by repeated decisions, that the lessees of railroads 'are liable, to the same extent as the lessors would have been, while they continue, to operate the road * Indeed there can be no question, we think, that a mere intruder into the franchise of a railway corporation, who should continue to use it for his own benefit, would be liable to passengers, and the owners of freight who should employ him, to the same extent precisely as the company itself, while continuing the same business. Any other view of the liability of such intruder would be to allow him to allege his own wrong in his defense. And we can see no reason why the defendants are not liable to the same extent as the company would have been, and upon similar grounds to those upon which lessees, or any others exercising the franchise of the company, for the time, must be; that is, that they are the ostensible *426parties, who appear to the public to he exercising the franchise of the company. It would be perplexing in the extreme to require strangers, suffering injury through the negligence of operatives under the defendants’ control, to look beyond the party exercising such control. The party having this independent control is in general liable for the acts of those under such control, whether of contract or tort.
II. As the defendants were interested in the'transportation of the freight, and took pay and gave tickets through, they are, prima facie, liable for the delivery at the point of destination.
But in regard to carrying passengers the rule is different, we apprehend. These through tickets, in the form of coupons for each successive company, which are purchased of the first company, import no contract, ordinarily, to cany the passenger beyond the line of the road of the first company, so far, at least, as they are concerned. The baggage of passengers may come under the same rule in regard to conveying beyond the first company’s line, which freight does, as the same general liability exists. But through passenger tickets are to be regarded as distinct tickets for each road, and unless the road check baggage through, it is questionable, perhaps, how far they are liable for losses beyond their own limits. And the contract between the companies which commonly exists in regard to the division of the price of the through ticket, constitutes no such partnership, probably, as will render each company liable for the whole route. The first company is, in such case, looked upon as the agent of the other companies for selling their tickets, and the contract requires no different construction from one where the tickets of one company are sold at the stations of other companies; Hood v. N. Y. & N. H. R., 22 Conn. 1; S. C. 502; Ellsworth v. Lartt, 26 Alabama 733.
And in the present case there seems to have been no ground to question that the extent of the defendants’ contract would oblige them to carry the freight through, as common carriers, which will make them liable for all injuries not caused by inevitable accident or the public enemy.
And in regard to the carrying the plaintiff as a passenger upon the freight train, in the saloon car provided for that purpose, the contract for carrying will extend throughout the route, the same as *427that in regard to freight. The defendants throughout the route, and of course at the point where the injury occurred, owed, by virtue of their contract, to the plaintiff, the ordinary protection which is required of common carriers of passengers. But this is not the same as that which qommon carriers of freight stipulate for. All that common carriers of passengers stipulate for in the common case of carrying passengers, is to exercise the utmost care that no injury befall those who entrust themselves to their custody. This does not include such perils as occur wholly without the agency of the carrier, unless there is some want of care in escaping from the consequences of such perils; Camden & Amboy R. v. Burke, 13 Wendell 611.
We do not perceive that this rule of liability could make the carrier of passengers liable for the act of a party over whom he had no control. If the act causing the injury were that of a servant or operative employed upon the train carrying the plaintiff, although such operative were furnished and paid by another company, as the engineer in the present case, the carrier is undoubtedly liable. So, too, if the injury is caused by the misconduct of other servants of the same carrier, who is carrying the plaintiffj while operating other trains, the carrier is liable. But’he cannot be regarded as liable, we think, for all the acts of all the operatives of the companies over whose roads he carries the plaintiff, unless some connection between the roads, of a character similar to that of general partnership, or the consolidation of their interests in the carrying business is shown, which was not done in the present case.
- It -would not be pretended that a carrier of passengers, by coach, is liable for a mere tort committed upon such passengers, in the course of the transit, as by another carriag# coming in contact with the carrier’s vehicle, or by an assault of a stranger.
It may be true that while the defendants were carrying the plaintiff upon their own road they may be liable for an injury to him by reason of an intrusion of another carriage upon their track, since the law enforces upon them the duty of keeping their track clear. But in those cases, where other companies have the right by law to run their carriages upon the track of the defen-ant’s road, by paying toll, as is common in England, and not *428uncommon in this country, in point of right, although not done practically to any great extent, it has never been held that one company is liable to passengers carried by them for injuries happening through the fault of other companies, while rightfully upon the same track, and without any fault on the part of the first company. This principle, it seems to us, must control the present case. The defendants’ contract only bound them for the skill and diligence of their own operatives, and those under their own control; Bridge v. Grand Junction Railroad, 3 M. & W. 244; Robinson v. Cone, 22 Vt. 213; Thoroughgood v. Bryan, 8 Com. Bench 115.
The plaintiff knew before entering upon the defendants’ train that he would be exposed to those perils. They are incident, of course, to all railway traveling, and especially upon, roads with only a single track. And knowing that this train was to be carried over other roads, where the defendants had no exclusive control, he must have understood, or vras bound to understand, that the common contract for carrying passengers would not indemnify him against such perils. He must then, we think, look to the company having the control of those by whose negligence he was injured. These persons were no more under the control of the defendants than of the plaintiff, and there is no reason why the defendants should take the risk of their good conduct, more than that the plaintiff should, unless they so stipulated.
Judgment reversed and case remanded.