Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 89 of 124)
Font size
QR-code for this ebook

disturb the public quiet, and force everybody to get out of their way,
with the additional privilege of turning the right over to any other
person at its pleasure.

We are clear that the capital to be invested and the corporation
created, are to be held responsible for the misuse of the franchise, no
matter by whom it is done. The corporation cannot thus escape
the obligations implied in its acceptance of the charter. The charter
is a contract between the company and the public, and as it is the
right of the company to demand that the Courts shall protect it
against the infringement of its rights by the public, so it is the duty
of the Courts to protect the public against the misuse of its franchise
by the company.

In the case of Beman v. Rufford, i Simon (N. S.,) 550, and
the case of Winch v. B. and L. R. Co., 13 L. and E., 506, it was
held that it was not within the power of a railroad company to lease
out to a third party its corporate franchise of running cars, and in
the case of the York and Maryland L. Railroad v. Winans, 17 How-
ard 39, the Supreme Court of the United States decided that a cor-
poration cannot so turn over its franchise to another corporation as
to escape an action of tort for a misuse of the franchise.^ In that

*The liability of a steam or electric railroad company which leases its



MACON & AUGUSTA K. R. V, MAYES 627

case, Judge Campbell says: "Important franchises were conferred
upon the corporation to enable it to provide the facilities for com-
munication and intercourse required for the public convenience. Cor-
porate management and control over the^e were prescribed, and



franchise and road to another company for injuries caused by the negligent
operations of its lessee, or resulting after the lease from the improper con-
dition of its property, is fully discussed by Lurton, J., in Arrowsmitli v.
R. R., 57 Fed. 165 (Circ. Ct., 6th Circuit, 1893), by Virgin, J., in Nugent v.
R. R., 80 Me. 62 (1888), and by Brewer, J., in St. Louis, etc., R. R. v.
Curl, 28 Kans. 622 (1882).

If no authority to lease is given by its charter or by any special or gen-
eral statute, the lease does not relieve the lessor from liability for the neg-
ligent operation or maintenance of the road, the lessee being treated as
though the lessor's agent, Arrowsmith v. R. R., supra, p. 171 ; Nelson v.
R. R., 26 Vt. 717 (1854) ; Van Steuben v. R. R., 178 Pa. 367 (1896) ; Hanlon
V. R. R., 182 Pa. 115 (1897) ; Ricketts v. R. R., 3i W. Va. 433 (1889).

Where authority to lease is expressly given, the charter or statute may
expressly preserve the liability of the lessor company (see Bean v. R. R., 63
Me. [1874] 295), it may expressly relieve the lessor from further liability,
or it may be silent as tO the lessor's liability.

In the latter case jurisdictions differ. Some hold that only express
legislative consent can release the grantor of a franchise frorn liability for
the manner in which the powers conferred upon it are exercised ; that no
intention to release the grantee of a franchise from liability can be implied
from the bare authority to lease, and that the lessor remains liable for all
misconduct of its lessees in the construction, maintenance and operation of
its road, Singelton v. R. R., 70 Ga. 464 (1883) ; Chicago, etc., R. R. v. Hart,
209 111. 414 (1904) ; Logan v. R. R., 116 N. C. 940 (1895) ; Harmon v. R. R.,
28 S. C. 401 (1888); and see Braslin v. R. R., 145 Mass. 64 (1887). The
weight^f authority is, however, in favor of the view that: "If the injury
results from negligence in the handling of trains, or in the omission of any
statutory duty connected with the management of the road, matters m regard
to which the lessor company could in the nature of things have no control,
then the lessee will alone be responsible" (Nugent v. R. R., supra; Arrow-
smith v. R. R., supra; Pinkerton v. Pa. Traction Co., 193 Pa- 229 (1899);
Jrry_S Par P ff tt^ ^'^\ T (tPqILL ^"d see Elliott on Railroads, 2nd
Ed., § 467) ; "but when the injury results from the omission of some duty
which the lessor owes to the public in the first instance— something con-
nected with the building of the road— then we think the company assuming
the franchise cannot divest itself of responsibility by leasing its track to
another company", Brewer, J., in St. Louis, etc., R. R. v. Curl, 28 Kans. 622

(1882). . , , . J- ■ r •

So a railroad is liable for injuries due to the defective, condition ot its
plant when leased, Nugent v. R. R.. supra; Ditchett v. R. R., 67 N Y. 425
( 1876) ■ / ee ■' ?? , ff Tlf/"-^f especially where the road when leased lacked
some proraTToiT for the public required by statute, as cattle-guards, in St.
I ouis etc R R V Curl, supra, or fences along the company s right of way.
Pontaine v. 7?. R., U Cal. 645 (1880) ; see as to the liability of a lessor for
fire started by the lessee's engines under statutes making railroads liable tor
fires caused by sparks emitted by engines on their lines. Bean v. R. R.. supra;
IngersoU v. R. R.. 8 Allen (Mass.). 438 (1864). It seems, however that the
lessee is alone liable for the failure to keep in repair a ro-y). ^^'h'S^i /vas in
cood and safe condition when leased. Ackerman v. R. R.. I43 Mich. 58 (1906) :
Miller v R R 125 N. Y. 118 (1890) ; unless by the terms of lessor s charter
it is required not onlv to erect but "to maintain" the safeguard which its
lessee his allowed to fall into disrepair, Whitney v.R. /?•• 44 Me..362 (1857).
]n lee y R R supra. Section 10. Article XII of the Califorma Constitu-
tion \vhich prohibited the passage of "any law permitting the "easmg or
nlienation of anv franchise so as to release the franchise or property held
thereunder from the liability of the lessor, lessee. 0- grantee * * incurred
n the operation * * * of such franchise" was helc not to give a right of



628 MACON & AUGUSTA R. R. V. MAYES

corporate responsibility for their insufficiency provided as a re-
muneration for their grant. The corporation cannot absolve itself
from the performance of its obligations without the consent of the
Legislature." In that case, the action was by the owner of a patent
against the company for infringement of the patentee's rights in the
use of certain cars. The company owning the road and having the
franchise was not running cars, but another company. That case is
not nearly so strong as this. Here Hull & Company were using the
franchise of running steam cars through the country, across the pub-
lic roads and by the side of them — an act which is a nuisance unless
by Legislative grant, and in the doing of this the damages came to
the plaintiff. H the engine and tender were, at the time, under the
orders of the president of the road, the case is clear. If under the
orders of Hull & Company it was by the consent or permission of
the company, and the case stands upon the rule we have discussed.
We put the case, in this view, upon the ground that the use of the
engine and tender for the purpose set forth in the record, to-wit:
to pass over the road with steam cars, from point to point, for the
purpose of carrying Mr. Hazlehurst, was a use of the franchise of
operating the railroad by steam, and that the corporation is liable, no
matter who did it. The case might be different if the contractors



action against the lessor for the lessee's negligence in operation, but merely
to subject the property to sale for damages recovered against the latter, and
see Little Rock, etc., R. R. v. Daniels, 68 Ark. 171 (1900), where a somewhat
similar act was similarly construed.

There is a conflict of authority as to whether, admitting that the lessor
is liable to strangers or patrons for the negligence of its lessee in the
operation of the road, it is equally liable to the latter's servants.

The liability is denied in Hitkill v. R. R., "72 Fed. 752 (C. C. A. 6th Circ,
1896) ; B. & O. R. R. v. Paul, 143 Ind. 2Z (1895), and East Line, etc., R. R.
V. Culberson, 72 Tex. 375 (1888), where there was either no allegation of
legislative power to lease or a failure to prove it if alleged, and in Banks v.
Ga. R. R., 112 Ga. 655 (1901) ; and Swice v. Maysville, etc., R. R., 116 Ky.
253 (1903), where the defendant had authority to lease, but where there was
no express exemption from liability, the cases cited being from jurisdictions
in which in such case the lessor remains liable for the lessee's subsequent
negligent operation of the road. These cases are all based upon the opinion
of Gaines, A. J.,, in East Line R. R. v. Culberson, who says, inter alia: "The
lessor remains responsible for the discharge of its duties to the public and
becomes liable for injuries resulting from the lessees' failure to perform their
duties." "The lessor by accepting the chartCT' assumes the qbljgation to
carry passengers (and all freight offered) safely over its lines" and "to
operate its line so as not to negligently damage property" and "injure persons
who have the right to pass on or near its track." "But the duties owed by
a railroad to its servant are not duties owed to him in common with the public,
but grow out of the contract of service (voluntarily entered into, out of
which) arises the reciprocal obligations from the one to the other." On
the other hand, the lessor is held to be as fully liable to the servants of
its lessee for the latter's negligent operations as to its passengers and ship-
pers, the owners of property near its tracks, or the public rightfully traveling
upon highways adjacent to or crossing its line, Chicago, etc.. R. R. v. Hart,
supra; Harden v. R. R., 129 N. C. 354 (1901), and Davis v. Atlanta, etc., R. R.
63 S. C. 370 (1902).

It is held in Nugent v. R. R., supra, and Lee v. S. Pac. R. R., supra, that
where a defect in the plant existed when the property was turned over under
the lease, the lessor is liable to a servant of the lessee who is injured thereby
while lawfully upon the premises by virtue of his employment.



MACON & AUGUSTA k. K. Z'. MAYES 629

were in the prosecution of their proper work, as moving dirt, etc.,
under circumstances, when they were not exercising the franchise
of the company in operating the railroad by steam cars, so as to do
that which, without the franchise, would be a nuisance. -
For these reasons we affirm the judgment.



Bonner, J., in Cunningham v. International Railroad Company,
51 Tex. 503 (1889), pp. 512-513: That Douglas, Brown, Reynolds
& Co. may have used, as a means to assist in carrying out their con-
tract to construct the road, a train belonging to the defendant com-
pany and operated by servants primarily employed by it, would not,
of itself, make the company liable for their acts, unless it had the
immediate control and management of the train.

To hold otherwise would virtually forbid parties to construct
works of improvement, or perform many other acts, except by their
own servants, unless at great peril for liability for actions of others
over whom they have no immediate control.



^Accord: P. IV. & B. R. K. v. Hahn, 32 W. N. C. (Supreme Ct. of
Pa., 32 (1887), the company contracted witli an independent contractor to haul
its freight cars by mules over its tracks laid on a public highway, by the
negligence of the servants of such contractor the plaintiff was injured; Tex.
& Pac. R. R. V. Juneman, 71 Fed. ( C. C. A. 6th Circ. 1895) 939, negligence
of person contracting to remove dead live stock, whereby a wounded steer was
turned lo^c in a public place: Boucher v. R. R., 196 Mass. 355 (1907), de-
fendant held liable for the negligence of keeper of safety gates employed and
paid by another which had leased the right to use one of its tracks. A
railroad company 1 nving by contract the right to run its trains over the
tracks of another company is answerable for the failure of a gate keeper
employed by the latter to protect the public from injury by the defendant's
trains, Railzvciy Co. v. Schneider, 45 Ohio St. 678 (1888) ; Schulte v. L. &
N. R. R., C. A. Ky., March 25. '08. 108 S. W. 901.

In Oil City & Allegheny River Ry. Co. v. Keighson, 74 Pa. 316 (1873),
one to whom oil cars are entrusted to be used and moved on the company's
lines has held, "as to third persons," the agent of the railway company, and
it is liable for his acts; so in Rolfe v. R. R., 69 N. H. 476 (1898), it was held
that a railroad permitting a shipper to maintain a fire in one of its cars was
liable for a conflagration due to his carelessness, Pcaslee, J., saying, p. 477,
that the heating of its cars "is part of the actual operation of the road and
cannot be separated from it, as far as the rights of third persons are con-
cerned, by any contract between the railroad and the shipper :" see also
Salisbury v. Erie R. R., 66 N. J. L. 233 (1901), where a railroad was held
liable to a wayfarer injured at a level crossing by the negligence of an
Italian, not at the time in the defendant's service, in running a handcar,
lent to him for his private purposes by the foreman of one of the company's
section gangs.

Any individual or corporation empowered to operate a railway for its
business purposes upon or across a public highway is as fully liable for
injuries caused by the negligence of a contractor employed to operate its
line as is a company incorporated for the purpose of the transportation of
passengers and freight. McJyUUains v. Detroit Central Mills Co., 31 Mich.

274 (1875).

See. however, Hanna v. Railway Co., 88 Tenn. 310 (1889), where it was
held that the rule in the principal case was correct as applied to strangers
or passengers, it did not apply in favor of the parties permitted to operate
the road or their servants.



630 TARRY v. ASHTON

The principle that a railroad cannot delegate to an employe its
chartered rights and privileges so as to exempt it from liability, does
not extend to the use of the ordinary ways and means for the con-
struction of the road, but to the use of such extraordinary powers
only as the company itself could not exercise without having first
complied with the conditions of the legislative grant of authority.^



TARRY z: ASHTON.

In the Queen's Bench Division, 1876. L. R. ij Q. B. D. 314.

At the trial before Quain, J., at the sittings in London after
Easter Term, 1875, it appeared that the plaintiff was walking along
the Strand in front of the defendant's house on the afternoon of the
i6th of November, 1874, when a large lamp, which was suspended
from the front of the house and projected several feet across the



^Accord: Rome, etc., R. R. v. Chasteen, 88 Ala. 591 (1889), similar
facts; Sanford v. Pazvtuckct Ry. Co., 19 R. 1. 537 (1896) ; Atlanta, etc., R. R.
V. Kiinbciiy, 87 Ga. 161 (1891) ; and Rogers v. Florence R. R., 31 S. Car. 378
(1889), injury caused by method adopted by contractor for performing the
work of construction or the negligence of his workmen.

If the railroad company give permission to contractors constructing the
line, whether gratuitously or as a part of the consideration given for the
construction, to run trains over the line, while under construction, for the
purposes of general traffic or allows such use, it is liable for the negligent
operations of the trains to a passenger, Lakin v. R. R., 13 Oregon, 436 (1886),
or to a stranger, Chattanooga R. R. v. Whitehead, 89 Ga. 190 (1892), but
the railroad company is not liable if trains are so run without its permission.
R. R. V. Chasteen, supra; Kansas Central Ry. v. Fitcsinunons, 18 Kan. 34
(1877), as to whether on the facts the use was permitted compare the dis-
senting opinion of Brewer, J., with the opinion of the Court.

The company is liable, however, if the contractor fails to perform any
duty imposed by the company's charter, or by statute, as a condition upon
which the company is empowered to construct or operate their road. Chicago,
etc., R. R. V. McCarthy, 20 111. 385 (1855), failure to replace fences; Houston,
etc., R. R. V. Meador, 50 Tex. 77 (1878).

The company is directly liable for property used or appropriated by its
contractor by virtue of a power conferred upon it to use the land and
appropriate the materials of adjacent property owners. Vermont Central
R. R. V. Baxter, 22 Vt. 365 (1850) ; Lesher v. Wabash Nav. Co., 14 111. 85
(1852).

In Illinois it is consistently held that a company is liable for the wrongs
and negligent conduct of independent contractors engaged in the construction
of its line "while in the performance of acts whch they would have no right
to do save under the charter of the company." Lawrence, C. J. West v. R.
R., 6z 111. 545 (1872), p. 546. Such "acts" include the running of even con-
struction trains (Chicago, etc., R. R. v. Whipple, 22 111. T05 [1859], cattle in-
jured; Toledo, etc.. R. R. v. Convoy. 39 HI. App. 351 [1890I, workman of
contractor injured) ; blasting in a public street necessary for the laying of gas
mairs, (.Chicago, etc.. Gas Co. v. Mvers. 168 111. [1807!, 139). and the erection
on the highway of an elevated railroad (Metropolitan, etc., Ry. v. Dick, 87
111. App. 40 [t90o1, heavy piece of steel dropped on traveller). But the com-
pany is not liable for the negligence of an independent contractor while
doing work which any individual mieht lawfullv cause to be done without
special power conferred upon him. West v. R. R., supra, workman poisoned
by preparation used to preserve boards used in building the defendant's
freight house.



TARRV V. ASHTON 63 1

pavement, and weighed 40 lbs. or 50 lbs., fell upon her and injured
her severely. At the time of the accident a man named Weaver, in
the employ of the defendant, was engaged blowing the water out of
the gas pipes ; he had raised a ladder against the lamp-iron or bracket
from which the lamp hung, and the afternoon being wet and windy,
on Weaver mounting the ladder it slipped, and he, to save himself
from falling, caught hold of the lamp-iron; this shook the lamp, and
its fastenings broke, and it fell on the plaintiff. In the August pre-
vious the defendant, having lately come into occupation as tenant of
the house, and knowing the lamps, &c., to be of some age, employed
Chappell, an experienced gasfitter, to examine them and put them
in thorough repair. But on examination of the lamp after the acci-
dent, it appeared that the breakage was caused by general decay
under the cup and ball, which connected the lamp with the lamp-
iron or bracket.

The jury found, that there was no negligence on the part of the
defendant personally, nor on the part of Weaver; but there was neg-
ligence in Chappell, "the defendant's servant." That the lamp was
out of repair through general decay, but not to the knowledge of the
defendant. That the immediate cause of the fall of the lamp was
the slipping of the ladder; but that if the lamp had been in good
repair the slipping of the ladder would not have caused the lamp
to fall. And they assessed the damages at 40/.

On these findings, a verdict was entered for the plaintiff for 40/.,
\\'\\.\\ l^^ve to move to enter a verdict for the defendant, or a non-
suit, if on the findings of the jury the judge ought to have non-
suited, or directed a verdict for the defendant.
A rule having been obtained accordingly.

Blackburn, J- I desire to decide nothing beyond what the
circumstances of the case require; and on the facts of the case, I am
of opinion that the plaintiff is entitled to keep the verdict. It appears
that the defendant came into occupation of a house with a lamp pro-
jecting from it over the public thoroughfare, which would do no
harm so long as it was in good repair, but would become dangerous
if allowed to get out of repair. It is therefore not a nuisance of
itself. But if the defendant knowingly maintained it in a dangerous
state he would then be indictable for the nuisance. This much is
clearly decided by Reg. v. Jl'atson (2 Ld. Raym. 856; i Salk. 356),
for the defendant was there held liable for not repairing his house
which was on a highway and was ruinous and like to fall down,
on tlie ground that as occupier he was bound to keep the house so
as not to be a nuisance. As I have said. I do not wisli to decide
more than is necessary; and if there were a latent defect in th.e
premises, or something done to them without the knowledge of the
owner or occupier by a wrongdoer, such as digging out the coals
undemeath and so leaving a house near the highway in a danger-
ous condition, I doubt — at all events. I do not say — whether or iK^t
the occupier would be liable. But if he did know of the defect,
and neglect to put the premises in order, he would be liable. Tie
would be responsible to this extent, that as soon as he knew of the



532 TARRY V. ASHTON

danger he would be bound to put the premises in repair or pull
them down. So also the occupier would be bound to know that
things like this lamp will ultimately get out of order, and, as occu-
pier, there would be a duty cast upon him from time to time to
investigate the state of the lamp. If he did investigate, and there
were a latent defect which he could not discover, I doubt whether
he would be liable; but if he discovers the defect and does not cure
it, or if he did not discover what he ought on investigation to have
discovered, then I think he would clearly be answerable for the
consequences.

Now in the present case there is ample evidence that m August
the defendant was aware that the lamp might be getting out of re-
pair, and. it being his duty to put it in repair, he employs Chappell
to do so. We must assume, I think, that Chappell was a proper per-
son to employ; and I may observe that he was clearly not the de-
fendant's servant, as the jury say, but an independent contractor.
But it was the defendant's duty to make the lamp reasonably safe,
the contractor failed to do that ; and the defendant, having the duty,
has trusted the fulfilment of that duty to another who has not done
it. Therefore the defendant has not done his duty, and he is liable
to the plaintiff for the consequences. It was his duty to have the
lamp set right ; it was not set right.

The rule must be discharged.

Lush, J. The question is, what is the duty of a person having
a lamp projecting from his premises over the highway for his own
purposes? Is it his duty to maintain it in a safe state of repair, or
only to employ a proper person to put it in repair? Surely the mere
statement is enough to shew that the duty must be in the first propo-
sition. A person who puts up or continues a lamp in that position,
puts the public safety in peril, and it is his duty to keep it in such
a state as not to be dangerous ; and he cannot get rid of the liability
for not having so kept it by saying he employed a proper person to
put it in repair.

OuAiN, J. I am of the same opinion. What is the duty of the
defendant under the circumstances to the pubhc? He is a man Avho
puts up or maintains a lamp always projecting from his premises
over the public footpath, and it is his duty to keep it in such a state
as not to prejudice the public. In Reg. v. Watson "it was adjudged
that the defendant, as tenant at will only, ought to repair the house,
so that the public be not prejudiced by the want of repairs.'' So
here the duty of the defendant was to keep the lamp in repair, so
as not to let 'the public be prejudiced. It is quite clear on the facts
that the plaintiff, one of the public, has been prejudiced, and the
defendant in answer to this charge of a breach of duty to the public,
cannot be allowed to ride off by saying, I employed a competent
person to do the repairs, and it is his fault that they were not prop-
erlv done No case in favour of such a proposition has been cited
for the defendant : and it seems to me there is good reason why it
cannot be found. I am clearlv of opinion that the defendant was
bound to maintain the lamp in a proper state of repair, so that the



THOMPSON Z'. I.OWKLL, IVIC, KV. CO. 63?

public should not be prejudiced by his neglect; and he is liable to the
plaintiff for the injury she has sustained owing to his breach of duty.^
Rule discharged.



THOMPSON z'. LOWELL ETC., RY. Co.

Supreme Judicial Court of Massachusetts, 1898. 170 Mass. 577.

Allen, J.,^ The St. of 1895, c. 316, authorizes street railway
companies to acquire, hold, equip, and maintain real estate to be
used for purposes of recreation and for pleasure resorts, the admis-
sion being free. By virtue of this statute, the defendant maintained



^Accord: McHarge v. Neuroiiicr, 117 Tcnn. 595 (1906), awning, over
public highway, neghgently erected by independent contractor.

An owner is under an equal obligation to his neighbors, if he builds or