This is an action for damages for injuries received by a collision of two trains on the defendant’s road. The ease comes up on the plaintiff’s appeal from a judgment in favor of the defendant.
The main question discussed is, whether the plaintiff was an employee of the defendant. The defense, however, raises a question of variance, which we will first consider.
The complaint alleges that the “plaintiff was an employee of the Shepaug Railroad Company of sai<^ state, and was a brakeman in his business for said Shepaug Railroad, and as such employee was riding on a train of said Shepaug Railroad Company between Danbury and Bethel in said county of Fairfield, over and on the track of the railroad of the defendant, as he lawfully had a right to do under said Shepaug Railroad Company as its employee and servant, and that while so lawfully riding he was injured,” etc.
The finding shows that the plaintiff was hired and paid by the Shepaug Railroad Company; that he was on a train run by that company between Litchfield and Danbury, a part of the way over its own road, and a part of the way over the defendant’s road; that while it was on the defendant’s road the train was subject to its rules and regulations; that the train hands “ were directly under the orders of the defendant’s officers, the same as if employed by them, and were accountable to the defendant’s officers for the proper performance of their duties; and so fully was this so, that the defendant’s officers had the right to discharge any of them for neglect or any improper conduct while on that road.”
This it is claimed is a fatal variance, as it mis-states the plaintiff’s position and his reason for being on the train and on the defendant’s road. We think this is altogether too technical. It is tripping the plaintiff up and turning him out of court on a legal technic. It required him to know the legal effect of a contract between his employer and the defendant, a contract of which he knew little or nothing. Whatever may be the legal effect of that contract in other *552respects, we think he might properly describe himself as in the employ of the Shepaug Railroad Company, and as being on a train run by it. The time, place, circumstances and manner of the accident are the same. The variance relates to the legal relations which the plaintiff, and the train on which he was, sustained to the two railroad companies. So long as the defendant was not deceived or misled as to any matter of fact, the plaintiff was not required to state those legal relations with technical accuracy.
In the next place it is claimed that there is a variance in respect, to the method of the injury. The complaint alleges a collision, by reason whereof he was thrown .out and from the train, and was scalded and burned and otherwise injured. The finding is that by the collision he “was terribly burned, one of his hip bones was fractured, and he received other severe and, in all probability, permanent injuries.” We discover no variance here. The substance of the allegation is that the plaintiff was injured bj the collision, and the proof seems to have fully sustained it.
In respect to the relation of the plaintiff to the defendant, two views may be taken:—first, that he was an employee of the defendant, and second, that he was an employee of the Shepaug company, and as to the defendant a third person or stranger. We will consider the ease in both aspects.
If he was an employee of the defendant,' and the accident was caused by the negligence of a fellow-servant, without fault in the defendant, then the rule which prevails in this state would exonerate the defendant from liability. But is it entirely clear from this finding that the defendant was without fault ? The “night freight” was a train running from Norwalk to Danbury. It was nearly six hours behind time. The collision occurred on that part of the defendant’s road which was between Danbury and Bethel, the only part of the road over which both colliding trains ran. The conductor of the “night freight” left Bethel on a single track road at a time which would make a collision with the “ Litchfield freight ” inevitable, pro*553vided the latter train left Danburj- on time. The finding is that the collision was occasioned solely by the negligence of the conductor in charge of the night freight train. This finding is ambiguous. It may mean, and probably does, that there was no negligence on the part of the plaintiff, or those in charge of the other train. If that is the extent of its meaning then there is no finding as to the negligence of the defendant—an all important fact in the case. For if the defendant was negligent in failing to employ a suitable conductor on the night freight, or in failing to have in operation a reasonably safe sj^stem for controlling and directing irregular trains, it is clearly liable to one of its employees. “ It is those risks alone which cannot be obviated by the adoption of a reasonable measure of precaution by the master that the servant assumes.” Pantgar v. Tilly Poster Mining Co., 1 Eastern Reporter, 193, N. Y. Ct. of Appeals, June 9th, 1855. And this is so even in Massachusetts, where the rule is adhered to more rigidly perhaps than elsewhere. Magee v. Boston Cordage Co., 1 Eastern Reporter, 126, decided in June, 1885.
Is it not entirely consistent with this finding that the defendant was in fault? Yea, more; does it not appear affirmatively,—not expressly, but as a necessary conclusion from the facts stated,—that it was so ? Let us carefully examine the finding with a view to an answer to this question.
A freight train was due at Danbury at 1.45 A. m. At 7.30 A. M. it was on a single track road between Bethel and Danbury, approaching Danbury; and the Litchfield freight left Danbury on its regular time, 7.30 A. M., going in the opposite direction, so that the trains must come together. Was the conductor of the Litchfield train notified to hold his train at Danbury until the arrival of the night freight ? Evidently not. • Is a system which requires-uo notice under such circumstances a reasonable one ? Was the conductor permitted to run his train (not on time) at his own pleasure, without reference to other trains, and without directions from some intelligent and authoritative source ? Was there *554no system by which trains behind time and irregular trains were regulated and controlled by a train dispatcher or some superintending officer ? If so, is such management consistent with the exercise of reasonable care and prudence? Was there a regular train dispatcher whose orders were disregarded by the conductor ? If so, was the company free from fault in having such a conductor in its employ? These questions are pertinent and important. In respect to all these matters the record is silent. The facts stated clearly indicate a want of due care in the defendant, and a jury would be warranted in so finding. More than that; they establish a primd facie case. They require explanation, and it is incumbent on the defendant to explain them, as all the facts are peculiarly within its knowledge. It failed to do so, and such failure is significant.
The only answer that we can conceive of is to construe the finding as negativing any negligence in the company. If the judge had intended so to find it is a little surprising that he did not say so, instead of leaving the finding ambiguous. Besides, there is a strong suspicion that the case was not tried upon any such theory, and that such a construction will be very unjust to the plaintiff. If these matters were not investigated justice clearly requires that a new trial should be had in order that they may be, unless the plaintiff is entitled to a judgment on the other ground. However, as what we have said on this part of the case is merely suggestive, and as we do not intend to decide the case on this point, we shall practically give the defendant the benefit of that construction so far as our present purpose is concerned, and pass to a consideration of the question whose servant was the plaintiff?
He was employed and paid by the Shepaug Railroad Company. A considerable portion of each day he was on that company's road and exclusively in its employ. While there he was responsible solely to its officers, the defendant having no control over him whatever. There was an arrangement between the two companies, “by virtue of which the Shepaug company furnished to the defendant an engine, *555engineer, firemen, conductor and brakémen, to run. the Litchfield freight train from Danbury to Hawleyville and back each day for an agreed price payable monthly.” So that the engine and train-hands were those of the Shepaug Railroad Company furnished to the defendant; that is, to do its work in its stead, and for which was paid a fixed price monthly, not to the men but to the Shepaug company.
The contract is not before us, but from what appears it did not relate to any particular engine and train-men, but simply to an engine and train-men, so that the Shepaug company was at liberty to change engines and men at its pleasure, and presumptively did so during the manj years that the arrangement continued. It follows that the Shepaug company did not lose the entire control of the men while on the defendant’s road, but had a general supervision over them, subject of course to the rules and regulations of the defendant and to such special orders as its officers might give, and might discharge them for any cause it might deem sufficient, although the defendant might consider it otherwise.
On the other hand the plaintiff sustained no contract relation whatever with the defendant. For that reason there is no room for any presumption that he stipulated with the defendant to assume any risk arising from the negligence of its employees. No such stipulation can be presumed from the contract between the defendant and the Shepaug company, because the plaintiff was not a party to that contract, did not know its terms, and the contracting parties had no power to make such a stipulation for him. For similar reasons no such presumption can arise from the control which the defendant reserved to itself over the train while on its road. That evidently was intended to avoid the inconvenience and peril that would result from having different trains on its road operated by different rules. It was reasonable that the defendant should retain the absolute control over all trains on its road; its own safety required it. To that end the power to discharge the train-men on the Litchfield train for neglect or improper *556conduct was essential. But this power must be construed with reference to the subject matter and the end which the contracting parties manifestly had in view. If the defendant could discharge them so far as to prohibit their services on its road, it would accomplish all it desired to, and all that the parties contemplated, and hence all that it had a right to require. To interpret this arrangement as giving the power to discharge them absolutely from the employ of the Shepaug company, would be going far beyond the obvious scope and purpose of the contract.
The defendant’s authority therefore over the plaintiff was a limited one. The contract may be fulfilled and its object accomplished without regarding the plaintiff as the defendant’s servant; The plaintiff cannot be so regarded without involving this consequence, which is well nigh an absurdity, that the plaintiff’s employer changed every time he passed from one road to the other, which was usually twice each day. • It is by far the better view to consider the Shepaug company as doing certain work for the defendant, but doing it by means of its own instrumentalities and servants, and not by means of the instrumentalities and servants of the defendant.
The defense of common employment has little of reason or principle to support it, and the tendency in nearly all jurisdictions is to limit rather than enlarge its range. It must bp conceded'that it cannot rest on reasons drawn from considerations of justice or of public policy. So far as the rule is to be retained it must have its foundation in the contract theory. A writer in the American Law Register for July, 1885, after a review of the law, and noticing the drift of modern decisions, says :—“ If the law is to remain unchanged, let it be upon the ground that the servant assumes the risks incident to his employment, a conclusion which, though it may sometimes bear hard, is reasonable enough. Never was it more important than it is now, when the tendency in every department of thought is to pass authority by, and search into the causes of things, that the law should *557commend itself to tlie plain sense of men in its reasonings as well as its rules.”
Ho consideration of public policy will sustain this defense, because the public are not at all interested in the question as they are in questions concerning inn-keepers and common carriers. They are only interested to have the law justly and fairly administered. Ho considerations of justice will sustain it, because the plaintiff had no relation whatever to the negligent conductor. It was not his duty to observe his conduct, he had no opportunity to do so, and no opportunity to guard against the consequences of his negligence. We have shown that the defense can have no foundation in any contract to which the plaintiff was a party or which can justly affect him. If - therefore the plaintiff may in any sense be regarded as in the service of the defendant, he is clearly without the reason of the rule and therefore not within the rule itself. But he cannot in any proper sense be regarded as the servant of the defendant. The Superior Court erred in holding that he was and that the defendant was exempt from liability.
The judgment is reversed and a new trial ordered.
In this opinion the other judges concurred; except Granger and Sanford, Js., who dissented.