Murray v. Lehigh Valley Railroad

Andeews, C. J.

The controlling question presented by the appeal in this case, arises on the charge of the court to the jury. That being disposed of, the other assignments of error become unimportant. And in the charge that question is narrowed to this: Was the court correct in saying to the jury that the servants of the Central Railroad Company while operating its trains on that portion of its track used in common by that company and this defendant, might, for the purposes of this case, be regarded as the servants of this defendant? A recurrence to the duties which the law imposes on every railroad company as a carrier of passengers, will serve to make the answer to this question more distinct.

A railroad corporation, by the contract for a passage over its road, assumes the obligation to exercise the highest practicable degree of human skill to carry the passenger in safety, and undertakes absolutely to protect him against any injury or willful misconduct of its servants in the performance of its contract; and the obligation in these respects continues until the contract is fully performed. Dwinelle v. R. R. Co., 120 N. Y., 117. Every carrier of passengers for hire — although not like a common carrier of goods, an insurer against everything but the act of God and the public enemies — is bound to use the utmost care which is consistent with the nature of the business, to guard the passenger against all dangers from whatever source arising, which may reasonably and naturally be expected to occur, in view of all the circumstances and of the number and character of the persons with whom the passenger will be brought in contact. The carrier must provide safe, sufficient and suitable vehicles for transportation, and must provide such servants for the management of the same, and make all such reasonable arrangements therefor, as the highest care of a prudent man would suggest as necessary to a safe passage. Hall v. Conn. River Steamboat Co., 13 Conn., 319; Fuller et Ux. v. Naugatuck R. R., 21 id., 557; Flint v. Nor. & N. Y. Trans. Co., 34 id., 554; Simmons v. Steamboat Co., 87 Mass., 361; Palmeri v. M. Ry. Co., 133 N. Y., 261; Pendleton v. Kingsley, 3 Clif., 416.

This duty is imposed by law; and this measure for its performance rests upon a railroad corporation to its full extent. A railroad corporation is a carrier of passengers by virtue of the franchise granted to it by its charter; a franchise intended to be used for the public good. By asking for and receiving the franchise, the corporation comes under the obligation to answer in damages to every one who may be injured by any negligence in the use of the privilege it' has so received. And public policy will not permit the corporation to relieve itself from this obligation by any contract with others. A railroad company entering into contract relations with another company, by which the safety of its own passengers may be affected, is held to have made the other company in this respect its own agent. It is held to the exercise of due care for the safety of all persons, while exercising its franchise, whether on its own road or that of another company. This duty was imposed by law when it received its charter, and this duty holds good at all times and in all places. If the company operates its trains over the road of another company, it must see and know that the track is in good and safe condition, and that the trains of the other company are so ordered as not to interfere with the full discharge of its own duty to its own passengers; because such trains would be a danger against which it would be bound to provide. If a railroad company permits another company to run its trains upon its track, it is liable for any want of care of its lessee, and may be sued therefor, the same as though the trains were its own. If a railroad company leases its entire road and all its rolling stock to another company, it remains liable for all the laches and neglect of its lessee, (except in cases where the lease is approved by the legislature) as fully as if it was itself operating its road ; on the theory that the lessee, whether a lessee of a part or of the whole, is the agent of the lessor. Driscoll v. Nor. & Wor. R. R. Co., 65 Conn., 230; Lakin v. Willamette Valley & Coast R. R. Co., 13 Oregon, 436; Va. Midland Ry. Co. v. Washington, 86 Va., 629; Whitney v. A. & St. Lawrence R. R. Co., 44 Me., 362; Stearns v. Same, 46 id., 95, 116; Wyman v. R. R. Co., ibid., 162; Nugent v. R. R. Co., 80 id., 62; Nelson v. Vermont & Canada R. R. Co., 26 Vt., 717, 721; Clement v. Canfield, 28 id.; 302; McElroy v. R. R. Co., 4 Cush., 400; Railroad Co. v. Barron, 5 Wall., 90, 104. And on the other hand, if one railroad company runs its trains over a portion of the road of another company, pursuant to a contract whereby it is agreed that its trains, while on such leased road, shall be under the control and direction of the servants of the lessor company, then the servants of the lessor company at such place and for the time being, are the servants of the lessee company, and it will be liable for any injury to a passenger caused by the negligent act of such servant, as though he was its own employee.

The case of the Wabash, St. L. & P. Ry. Co. v. Peyton, 106 Ill., 534, 540, is an application of'-' this rule. That was a case almost exactly like the one now before us. That case was an appeal. In the lower court the appellee had recovered judgment. It was shown that the appellant, by a lease of a portion of the road of the Chicago & Western Indiana R. R. Co., was permitted to run its trains over a portion of the track of the latter company near to a station, to and from which its trains ran and departed. By the terms of the lease the lessor company had the control of the passenger train of the appellant while on that portion of track, and its servants directed and controlled the trains of the appellant in coming to and going from that station. The appellee was injured

while a passenger on a train of the appellant, by the negligence of the yard master of the lessor company. The court said: “The controlling question of the case, * * * is whether the appellant is freed from liability by placing, by the lease or agreement, its employés and trains, at the place where the injury occurred, under the control of the road master of the other road. Appellant did so as a matter of interest or choice, and not from overpowering necessity. When the charter was granted the corporation became a common carrier of persons and property, and the law imposed the duty of common carrier, with all the liabilities incident to the occupation, and the responsibility was assumed by the corporation, and imposed on it by law. Nor can the corporation exonerate itself from the duty and responsibility by contract with others, nor in anywise escape or free itself from the liability, unless released by the General Assembly. Appellant voluntarily placed its engine and cars, at that place, under the control and direction of the employés of the other road, and for the time being, and for that purpose, the roadmaster of the other road became the servant of the appellant. The engine and train belonged to the appellant; the engine-driver, the fireman, the conductor and the brakeman on board of the train were its servants, under its control, and the yardmaster, under the agreement, pro hae vice, for the time and place, was its servant. Had the agreement not been made he would not have controlled the starting of the -train. Appellant,' by the agreement, authorized him to act as its yardmaster, and to act for it at that time and place, and it must be held responsible for his acts. The company cannot escape by saying he was employed and controlled by the other road. He was, as we have seen, the servant of the appellant, to the full extent he acted, in this case.” Oil Creek Allegheny River Ry. Co. v. Keighron, 74 Pa. St., 316; Vary v. B., C. R. & M. R. Co., 42 Iowa, 246; Laugher v. Pointer, 5 B. & C. 547, 559; Eaton v. Boston & Lowell R. R. Co., 11 Allen, 500; Abbott v. Horse R. R. Co., 80 N. Y., 27; St. Louis, W. & W. Ry. Co. v. Curl, 28 Kan., 622; Balsbey v. St. L., Alton, etc., R,. R. Co., 119 Ill., 68; Eureka Springs Ry. Co. v. Timmons, 51 Ark., 459.

The plaintiff was a passenger on the railroad of the defendant from Allentown to Jersey City. He was entitled to be carried in safety, and it was the duty of the defendant to so carry him the entire journey, whether it carried him over a track owned by itself or over a track hired of another. If the defendant for its own convenience chose to carry him a part of the journey over a hired track, it was its duty to make the track hired as safe as the track owned. If by reason of being carried on a hired track the plaintiff was exposed to a danger from which he would have been free had the track been owned by the defendant, and suffered injury therefrom, then for such injury the defendant is liable to him. Pierce on Railroads, 288.

The ease shows that in the use of the portion of track owned by the Central Railroad Company, this defendant was bound by its agreement with that company to obey the orders and signals given by the servants of that company. The case shows then, that to the extent of that agreement and for the purposes included in it, this defendant had, by the terms of that agreement, made the servants of that company its own servants. And as the case further shows that the train on which the plaintiff was a passenger, was upon this portion of track, and was being operated in obedience to the orders of those persons who, by the agreement, were the servants of this defendant, we think the charge was fully justified.

The verdict having established that the danger of collision to which the train of the defendant was exposed, was caused by the negligence of the defendant’s own servants, the several rulings in respect to the admission of testimony become immaterial. This fact being settled, it matters not whether the men on the trains were friendly or unfriendly to one another, nor whether the train of the defendant was behind time, or the train of the Central Company ahead of time, nor what any person on the rear train may have said, or omitted to say.

The motion for a new trial on the ground that the verdict is against the evidence must be denied. In considering the evidence the jury was bound to accept the charge of the court as correct. And in the light of the charge there was abundant evidence to support the verdict. Indeed, the jury could not well have reached a different result.

There is no error. A new trial is denied.

In this opinion Fenn and Hamersley, Js., concurred.