Francis H. (Francis Hermann) Bohlen.

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doubtless make contracts for the performance of the work; but can-
not avoid their obligation to protect the public against danger, by
the stipulati(jns they may make. The grant of the Legislature is to
a known and responsible company, as it is to be presumed, over
which the Legislature has more or less control. Important rights
are to be affected, and it would be a dangerous, as well as an un-
sound doctrine, to allow such a body to transfer their liabilities and
obligations to the public and the individual citizens, to irresponsible
or transient contractors. In the execution of such a trust, or power,
the company must be responsible, whatever contracts they may
make. Hilliard v. Richardson, 3 Gray, 349; Bailey v. Mayor, &c.,
Neiv York, 3 Hill, 531.

It i? settled by various decisions, that, where railroads have
the power by law to cut through and alter highways, and, in so
doing, travellers sustain an injury, without fault on their part, by
reason of an illegal defect, the towns in which the highways are
situated are primarily liable for such injuries. State v. Gorham, 37
Maine, 451 ; JVillard v. Nezvbury, 22 Yt, 458; Currier v. Loxvell, 16
Pick., 170.

A town thus made liable may sustain an action for indemnity
against the railway company, if that company was first and prin-
cipally in fault and the wrongful cause of the defect or neglect.
The town is compelled by law and public policy to stand as guaran-
tors, or in a position like that of surety for the company, that it
shall not be guilty of neglect. When the w^rong or neglect is alto-
gether on the part of the company, the town may nevertheless be
held to make good the injury to the individual. The liability of the
railroad company is to indemnify the town fully for all the dam-
ages it has been compelled to pay. and for the costs and expenses
reasonably and fairly incurred. Lozvell v. B. & L. R. R. Co., 23
Pick., before cited ; Dnxbury v. Vermont Central Railroad, 26 Vt.,
751 ; Hayden v. Cabot, 17 Mass., 169.^

'In Leavitt v. Railroad Company. 89 Me. 509 (1897). p. 579. the principle
case is stated to have been decided on the principle that: "No private person
or corporation has a right to interfere with the highway, and can only do so
by anthority from the legislatnre : and then, as the authority is personal, the
act, by whomsoever done, remains personal. The act of the contractor, being
unauthorized, except from the legal privilege of his employer, logically be-
comes the act of the latter."

Accord: D'^ming v. Terminal Ry. of Buffalo, 169 N. Y. i (igoi) , per
Parker, C. J., p. 13: Dozvney v. Low. 22 App. Div. (N. Y.) 460 (1807) : Cole-
grove v. Smith, 102 Cal. 220 (1894) : see also Holmes, J.. JVoodman v. R. R..
149 Mass. 33'; C1889), p. 340. In Darmstaedter v. Moynahan. 27 Mich. 188
(1873'). the defendant having a license to encumber the street while filling
his ice house was held liable for the misconduct of a contractor employed to



620 /^ PENNSYLVANIA CO. Z'. ROY

^ jJU^ PENNSYLVANIA CO. v. ROY.

V Supreme Court of the United States, 1880. 102 U. S. 451.

Mr. Justice Harlan delivered the opinion of the court.

This is a writ of error from a judgment for the sum of $10,000,
the amount assessed as damages sustained by the defendant in error,
in consequence of personal injuries received while riding, as a pas-
senger, in a sleeping-car wdiich belonged to the Pullman Palace Car
Company, but constituting, at the time the injuries were received,
a part of a train of cars managed and controlled by the Pennsylvania
Company, as lessee and operator of the Pittsburg, Fort Wayne, and
Chicago Railway. The action w'as commenced in the Supreme Court
of Cook County, Illinois, against the Pennsylvania Company, the
Pittburg, Fort Wayne, and Chicago Railroad Company, and the Pull-
man Palace Car Company. It was subsequently dismissed by the
plaintiff against all the defendants except the Pennsylvania Com-
pany, and then removed for trial into the Circuit Court of the United
States for the Northern District of Illinois, where the judgment
complained of was rendered.

The facts set forth in the bill of exceptions, so far as it is ma-
terial to detail them, are these : —

On the 5th of June, 1876, Roy, the defendant in error, pur-
chased at the office of the lessee company, in the city of Chicago,
a "first-class railroad ticket" from that city, to Philadelphia, over
the line of that company, paying therefor the sum of $14.40. At
the same time and place, and of the same person, he purchased a
sleeping-car ticket, issued by the Pullman Palace Car Company, for
the route between the same cities, and for that ticket he paid the
additional sum of $5. He took the train the same day, going im-
mediately into the section of the sleeping-car corresponding to his
ticket.

The next morning, at Alliance, Ohio, upon the invitation of a
friend, travelling upon the same train, he entered the sleeping-car
in which that friend w^as riding, and there engaged w-ith him in
conversation. W'hile so engaged, the upper berth of the section in
which they were sitting fell. Thereupon the porter of the sleeping-
car came at once and put up the berth, saying it would not fall
again. Shortly thereafter the berth fell a second time, striking the

fill it, in negligent!}'- leaving blocks of ice lying on the street after the work
was done.

Contra: Chartiers Valley Coal Co. v. Wafers, 123 Pa. 220 (1888), and
Smith V. Simmons, 103 Pa. 32 (1883) ; cf.,Penna., etc.. Canal Co. v. Graham,
63 Pa. 290 (1869), where the injur}' was received while the bridge, the main-
tenance of which was by its charter imposed on the company, was in its
own possession and under its own control.

In Halliday v. National Telephone Co., L. R. 1899, i Q. B. 392, Lord
Halsbury, L. C, holds, p. 398. that one authorized "to interfere with a public
highway" fin a way unlawful unless so authorized) "is bound, whether
they do the work themselves or by a contractor, to take care that the public
lawfully using the highway are protected against any apt of negligence by
a person acting for them in the execution of the works."



PENNSYLVANIA CO. V. ROY 62 1

plaintiff upon the head, injuring his brain, incapacitating him from
pursuing his vocation, and necessitating medical treatment.

After the second falHng of the berth, the brace or arm supporting
it was found to be broken.

The evidence introduced by the plaintiff tended also to show
that the Pennsylvania Company provided cars in which passengers
having railn.iad tickets could ride without purchasing a sleeping-car
ticket ; that Roy had much experience in travelling, and would have
gone into one of those cars had he not purchased a sleeping-car
ticket; that at the time he purchased it he did not know what com-
pany ran the sleepers, but upon taking the train he ascertained it
was a Pullman car; that the Pullman Palace Car Company was en-
gaged in furnishing cars to be run in the trains of railroad com-
panies; that, besides the general conductor of the train, there was a
conductor, in uniform, and a porter, whose duty it was to make up
the berths and attend to the wants of passengers occupying the sleep-
ing-car.

Upon the trial the plaintiff introduced a time and distance card
of the defendant corporation, issued, published, and circulated by
that company during the year 1876, prior to the date of his injuries.
That card, referring to the "Fort Wayne and Pennsylvania R. R.
line," stated that three express trains left Chicago daily, one "zvith
popular vestibule sleeping-car," one "with drawing-room and hotel
car," and one "with draiving-room sleeping-car." It gave notice
that "passage, excursion, and sleeping-car tickets" could be pur-
chased at the defendant company's office in Chicago. Referring to
the "Fort Wayne and Pennsylvania line," the same card announced
that "no road offers equal facilities in the number of through trains,
equipped zvith Pulhnan palace sleeping-cars." It states, among the
advantages of the "Pittsburg. Fort Wayne, and Pennsylvania through
line." that the latter was the "only line running three through trains,
with Pullman palace-cars" and "the only line running sleeping-cars
from Chicago and intermediate stations to Philadelphia without
change." The same card gave the rates charged for berths and sec-
tions in Pullman sleeping-cars from Chicago to points east of that
city.

The defendant, to maintain the issues on its part, offered to
prove —

1. That the sleeping-car in which the accident occurred, and
all the sleeping-cars then and theretofore on the defendant's line,
since the 27th of January, 1870, were owned by the Pullman Palace
Car Company, a corporation of the State of Illinois, and not by the
defendant; that said sleeping-cars were nm in the same trains with
the defendant's cars; that holders of railroad tickets were entitled
to ride in said sleeping-cars, provided they also held sleeping-car
tickets.

2. That the Pullman Palace Car Company, and it only, issued
tickets for sale, entitling passengers to ride in said sleeping-cars ;
that such tickets were plainly distinguishable from railroad tickets,
and were sold at offices established by said company, and indi-



622 PENNSYLVANIA CO. ^'. ROY

cated as places for the sale of such tickets; that the plaintiff pur-
chased the sleeping-car ticket of the same person of whom he bought
the railroad ticket ; that the office where purchased indicated by plain
lettering upon its door that it was a place for the sale of Pullman
Palace Car Company tickets, as well as railroad tickets.

3. That the Pullman Palace Car Company employed persons
to take charge of its cars, and the latter, whilst in use, were in the
immediate charge of a conductor and a porter employed by that
company ; that such conductor and porter were the only persons who
had authority to manage and control the interior of said cars, and the
berths and seats and tlie appurtenances thereto.

To this proof the plaintiff objected, and the objection was sus-
tained, to which ruling the company excepted.

The court thereupon charged the jury that the proof tended "to
show that the injury was received by reason of the negligence of
the defendant's agents or servants, or by some negligence in the
construction of the car in which the plaintiff w^as riding." To that
charge the company at the time excepted, upon the ground that it
was unsupported by the testimony, and because it assumed as a fact
that the persons in charge of the sleeping-car were the company's
agents or servants.

The court further charged the jury that "the defendant has
offered in your presence to prove that the car in which the plaintiff
was injured was not the car or the actual property of the defendant,
but was the property of another corporation. But I instruct, as a
part of the law of this case, that if the car composed a part of the
train in which the plaintiff and other passengers were to be trans-
ported upon their journey, and the plaintiff was injured while in
that car, without any fault of his own, and by reason either of the
defective construction of the car or by some negligence on the part
of those having charge of the car, then the defendant is liable."

To that charge also the defendant excepted.

We are of opinion that there was no substantial error, either
in excluding the evidence oft'ered by the defendant, or in the charge
to the jury. The court only applied to a new state of facts, principles
very generally recognized as fundamental in the law of passenger
carriers. Those thus engaged are under an obligation, arising out
of the nature of their employment, and, on grounds of public policy,
vigorously enforced, to provide for the safety of passengers whom
they have assumed, for hire, to carry from one place to another. In
Philadelphia & Reading Railroad Company v. Derby (14 How.
468), it was said that when carriers undertake to convey persons by
the powerful and dangerous agency of steam, public policy and
safety require that they be held to the greatest possible care and dil-
igence, — that the personal safety of passengers should not be left
to the sport of chance, or the neehVence of careless agents. This
doctrine was expressly affirmed in Steamboat New World v. Kina.
16 id. 469. In Stokes v. Saltonstall (13 Pet. t8t). affirming the de-
cision of Mr. Chief Justice Taney on the circuit, we said, that al-
though the carrier does not warrant the safety of the passengers, at



PENNSYLVANIA CO. V. KOV GZT^

all events, yet his undertaking and liability, as to them, go to the
extent that he or his agents, where he acts by agents, shall possess
comijetent skill, and, as far as human care and foresight can go,
he will transport them safely. The principles there announced were
approved in Railroad Company v. Pollard {22 Wall. 341 J, where,
speaking by the present Chief Justice, we said that we saw no neces-
sity for reconsidering Stokes v. Saltonstall.

These and many other adjudged cases, cited with approval in
elementary treatises of acknowledged authority, show that the car-
rier is required, as to passengers, to observe the utmost caution char-
acteristic of very careful, prudent men. He is responsible for in-
juries received by passengers in the course of their transportation
which might have been avoided or guarded against by the exercise
upon his part of extraordinary vigilance, aided by the highest skill.
And this caution and vigilance must necessarily be extended to all
the agencies or means employed by the carrier in the transportation
of the passenger. Among the duties resting upon him is the im-
portant one of providing cars or vehicles adequate, that is, suffi-
ciently secure as to strength and other requisites, for the safe
conveyance of passengers. That duty the law enforces with great
strictness. For the slightest negligence or fault in this regard, from
which injury results to the passenger, the carrier is liable in damages.
These doctrines to w'hich the courts, with few exceptions, have given
a firm and steady support, and which it is neither wise nor just to
disturb or question, would, however, lose much, if not all, of their
practical value, if carriers are permitted to escape responsibility upon
the ground that the cars or vehicles used by them, and from whose
insufficiency injury has resulted to the passenger, belong to others.

The undertaking of the railroad company was to carry the de-
fendant in error over its line in consideration of a certain sum, if
he elected to ride in what is known as a first-class passenger car;
with the privilege, nevertheless, expressly given in its published
notices, of riding in a sleeping-car, constituting a part of the car-
rier's train, for an additional sum paid to the company owning such
car.

As between the parties now before us, it is not material that the
sleeping-car in question was owned by the Pullman Palace Car Com-
pany, or that such company provided at its own expense a conductor
and porter for such car. to whom \vas committed the immediate con-
trol of its interior arrangements. The duty of the railroad company
was to convey the passengers over its line. In performing that duty,
it could not, consistently wnth the law and the obligations arising
out of the nature of its business, use cars or vehicles whose inade-
quacy or insufficiency, for safe conveyance, was discoverable upon
the most careful and thorough examination. If it chose to make no
such examination, or to cause it to be made; if it elected to reserve
or exercise no such control or right of inspection, from time to time,
of the sleeping-cars which it used in conveying passengers, as it
should exercise over its own cars, — it was chargeable with negligence
or failure of duty. The law will conclusively presume that the con-



624 PENNSYLVANIA CO. V. ROY

ductor and porter, assigned by the Pullman Palace Car Company to
the control of the interior arrangements of the sleeping-car in which
Roy was riding when injured, exercised such control with the assent
of the railroad company. For the purposes of the contract under
which the railroad company undertook to carry Roy over its line,
and, in view of its obligation to use only cars that were adequate for
safe conveyance, the sleeping-car company, its conductor and porter,
were, in law, the servants and employes of the railroad company.
Their negligence, or the negligence of either of them, as to any mat-
ters involving the safety or security of passengers while being con-
veyed, was the negligence of the railroad company. The law will
not permit a railroad company, engaged in the business of carrying
persons for hire, through any device or arrangement with a sleeping-
car company whose cars are used by the railroad company, and con-
stitute a part of its train, to evade the duty of providing proper means
for the safe conveyance of those whom it has agreed to convey. 2
Kent. Com. 600, 12th ed. ; 2 Parsons, Contracts, 218, 219, 6th ed. ;
Story, Bailments, sects. 601, 601 a, 602; Cooley, Torts, 642; Whar-
ton, Negligence (2d ed.), sect. 627 et seq.; Chitty, Carriers, 256 et
scq., and cases cited by the authors.

It is also an immaterial circumstance that Roy, when injured,
was not sitting in the particular sleeping-car to which he had been
originally assigned. His right, for a time, to occupy a seat in the
car in w-hich his friend was riding was not, and, under the facts dis-
closed, could not be questioned.

\\'hether the Pullman Palace Car Company is not also, and
equally, liable to the defendant in error, or whether it may not be
liable over to the railroad company for any damages which the latter
may be required to pay on account of the injury complained of, are
questions which need not be here considered. That corporation was
dismissed from the case, and it is not necessary or proper that we
should now determine any question between it and others.^



\4ccord: R. R. v. U'alrath, 38 Ohio St. 461 (1882), passenger in sleeping
car injured by fall of berth; Kinsley v. R. R., 125 Mass. 54 (1878), passenger's
baggage lost by negligence of drawing-room car porter ; Thorpe v. A''. Y., etc.,
R. R., 76 N. Y. 406 (1879), passenger wrongfully ejected by such porter.

So a railroad company is liable to its passengers for the misconduct of
every one allowed by them to take part in the operation of its trains or in
the control of the tracks over which they are run, Wabash, etc., R. R. v.
Peyton, 106 111. 534 (1883), a railroad company having the right to use the
tracks of another company on condition that its trains are to be run under
the direction and control of the other company is liable to a passenger injured
by the negligence of a servant of such other company while directing the
movements of the defendant's train, or [Murray v. R. R., 66 Conn. (1895)
512], the movements upon the same or adjacent tracks of the trains of such
other company; and a railroad company is liable to its passengers for the
carelessness of a switchman employed and paid by another company to tend
a switch built by it in order to make connection with the defendant's line.
McElroy v. R. R., 4 Cush. (Mass.) 400 (1849) ; but see Beckham v. Meadville,
etc., Street Ry. Co., 219 Pa. 26 ('1007).

As to the liabilitj' of railroads or other common carriers for defects in
their plant, roadbed or appliances purchased from, or constructed by, com-
petent independent contractors : see Grote v. Chester, _ etc., Ry. Co., 2 Exch.
251 (1848J, bridge improperly built by experienced engineer; P. & R. R. R. V.



MACON & AUGUSTA R. R. V. MAYES 62 =



MACON & AUGUSTA R. R. v. MAYES.
Supreme Court of Georgia, 1873. 49 Ca. 355.

Moses Mayes brought case against the ]\lacon and Augusta
Railroad Company for ^{520,000 damages alleged to have been sus-
tained on account of the negligent conduct of the defendant in the
running of its car, by which he lost one of his legs. The defendant
pleaded not guilty. (The important facts sufficiently appear in the
opinion of the Court except the following: The evidence as whether
the road had been entirely completed and turned over by the con-
tractors, Hull and Co., to the railroad, was conflicting. The crew
of the engine was employed by the contractors, the plaintiff was
a hand emj)l(iycd by them in laying the tracks and was ordered to
take, temporarily, the place of a tireman, also in the contractors'
service, upon an engine employed by them. George H. Hazlehurst
was the president of the defendant company, its chief engineer, and
also a member of the iirm of Hull and Co.)

The jury returned a verdict for the plaintiff for $3500. The
defendants moved for a new trial upon the following, among other
grounds: Because the Court erred in charging the jury, "that if the
defendant owned the road and permitted the Georgia Railroad Com-
pany or Hull and Company to run cars thereon, then defendants
are liable for all injuries resulting from the negligence or misconduct
of the employees of said company so using their road." The motion
was overndcd and the defendant excepted.

]^cCay, Judge.

It Ts quite clear that the plaintiff, without fault of his own, has
been badly hurt by a collision of trains on the defendant's railroad,
caused by somebody's fault. It is scarcely less clear that the person
most to blame for the collision was Mr. Hazlehurst himself, and that
he is the president of the road. We think the verdict in this case
is sustainable on several grounds. There is sufficient evidence of
negligence in the speed w^ith which the principal train was running
to authorize the verdict. Over a new road, with no regular schedule,
common sense indicates a speed far less than the proof shows for
this train.

We think, too. the evidence that the tender and engine were
making the trip under the direction of Mr. Hazlehurst, the president,
justifies the jury in treating the company as the actual perpetrator
of the negligence, notwithstanding it may be true that the construc-
tion company had not turned over either the engine or the road-bed
to the company. But admitting all that is claimed — admitting that
this engine and tender were under the control of Hull & Company —
that Mr. Hazlehurst is to be looked upon in this transaction as one
of the firm of Hull & Company, and not as president of the road,



Anderson, 94 Pa. 351 (1880), defendant held liable for negligence of com-
petent engineer employed by its lessor to constrnct an embankment upon
the line suliscquently leased to it: Sluvf v. Grey. 9 Bing. 457 (1833V passen-
ger upon stage coach injured by defect in axletree, though not discoverable
after the coach was completed and turned over to defendant.



626 MACON & AUGUSTA R. R. Z'. MAYES

what, then, is the state of the case? An engine and tender, under the
orders of Hull & Company, were running over the defendant's road.
Hull & Company were exercising the franchise granted by the Legis-
lature to the JMacon and Augusta Railroad — were running a steam
car and tender, and carrying passengers over the road of defendant
through the country. We are of opinion that if this be so, third
persons have a right to hold the railroad company responsible for
any negligence of Hull & Company or their agents.

The running of cars drawn by steam through the country is a
franchise, and unless granted by the Legislature, cannot legally be
exercised. And if the railroad company to which the Legislature
has granted this franchise permit others to use it, the company is
responsible to the public for negligence of such persons. It is but
a fair presumption that the Legislature, in granting such a fran-
chise, looked to the capital of the company as a security that the fran-
chise would not be abused. Upon any other view, the company might
lease out its privileges to third persons, non-resident or not having
property, so that the country would have no security against injuries
done by the careless or even reckless use of the franchise.

In our judgment, if a railroad company sees fit to permit another
person or corporation to run steam cars over its road, it is liable to
third persons for damages caused by the negligence of such persons
or corporations, just as though the company had itself been running
the cars.

This is a new question here, and is to be decided rather upon
principle than authority. It cannot, as it seems to us, be presumed
that it was within the intent of the Legislature to grant to this cor-
poration this extraordinary privilege of flying through the country,
across the public roads, puffing and screaming and rattling so as to