47 49 as its agent; and hence it will be liable for injuries to passengers due to the actionable negligence of the latter while using the road, regardless of the contract arrangement between the two companies.48 Thus, where a railroad company allows the trains of another company to run over its tracks, it is responsible to the passengers on its own trains in the same manner as if all the trains belonged to itself," and it is liable for injuries to such passengers, although they result wholly from the negligence of the other company." 50 But it has been held that it is not so liable for injuries to passengers on the trains of the other company,51 unless they result from negligence in not properly maintaining the tracks.52 [§ 1316] e. Carrier Using Other Road. A railroad or a street railroad company using the road of another company is held to the same degree of care in its use as if it owned the road53 and is liable for any negligence or misconduct on the part of its own employees while under its control and in the the public law or for torts committed by their lessees or the parties with whom they specially contract." Cogswell v. West St., etc., R. Co., 5 Wash. 46, 51, 31 P 411. 46. Murray v. Lehigh Valley R. Co., 66 Conn. 512, 34 A 506, 32 LRA 539. "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." v. Lehigh Valley R. Co., 66 Conn. 512, 519, 34 A 506, 32 LRA 539. Murray 47. Keep v. Indianapolis, etc., R. Co., 10 Fed. 454, 3 McCrary 302; Murray v. Lehigh Valley R. Co., 66 Conn. 512, 34 A 506, 32 LRA 539; Chicago, etc., R. Co. v. Newell, 212 Ill. 332, 72 NE 416 [aff 113 Ill. A. 263, and app dism 198 U. S. 579 mem, 25 SCt 801 mem, 49 L. ed. 1171 mem]; Chicago, etc., R. Co. v. Meech, 163 Ill. 305, 45 NE 290 [aff 59 Ill. A. 69]; Peoria, etc., R. Co. v. Lane, 83 Ill. 448; Smith v. Chicago, etc., R. Co., 163 Ill. A. 476; Chicago Terminal Transfer R. Co. v. Young, 118 Ill. A. 226; Chicago, etc., R. Co. v. Newell, 113 Ill. A. 263 [aff 212 Ill. 332, 72 NE 416]; Ricketts v. Chesapeake, etc., R. Co., 33 W. Va. 433, 10 SE 801, 25 AmSR 901, 7 LRA 354. See generally Railroads [33 Cyc 710];. Street Railroads [36 Cyc 1469]. [a] If a domestic corporation permits a foreign corporation to run trains over its road as a part of a through line, the domestic corporation will be liable for injuries sustained by passengers on the portion of its road so used, and caused by the negligence or misconduct of the servants of the foreign corporation. Ricketts v. Chesapeake, etc., R. Co.. 33 W. Va. 433, 10 SE 801, 25 AmSR 901, 7 LRA 354. [b] Where one railroad company depends on another for motive power, negligence of the second in the operation of the train will be chargeable to the first. Keep v. Indianapolis, etc., R. Co., 10 Fed. 454, 3 McCrary 302. 48. Chicago, etc., R. Co. v. Newell, 113 Ill. A. 263 [aff 212 Ill. 332, 72 NE 416]. 49. Illinois Cent. R. Co. v. Barron, 5 Wall. (U. S.) 90, 18 L. ed. 591 [aff 2 F. Cas. No. 1,053, 1 Biss. 453]; Biddle v. Riley, 118 Ark. 206, 176 SW 134. LRA1915F 992; McElroy Nashua, etc., R. Corp., 4 Cush. (Mass.) 400, 50 AmD 794. V. [a] Negligent management of switches.-A railroad company is responsible for an injury sustained by a passenger on its cars, in consequence of the careless management of a switch by which another railroad connects with and enters its 54 conduct of its business, although such company does not own the train which its employees are operating,55 and although the agreement or arrangement under which it uses the other road is illegal.56 Thus such company is liable for the negligence of its own employees in the operation of its trains over the road, thereby injuring passengers on the trains of the other company," 57 notwithstanding its trains are operated under, and subject to, the rules and orders of the company owning the road, if its employees are guilty of acts of negligence independent of, and not attributable to, the orders under which they are run;58 but such company will not be liable if its employees and trains, and all their movements, are at the time under the absolute and exclusive control of the company owning the road.59 A railroad company operating its trains over the road of another company is liable to its own passengers for the negligence of the other company or its employees; and it is also liable for damages to its passengers by reason of defects in the road of such 60 road, although the switch is pro- | vided by the other road and attended by one of its servants, at its expense. McElroy v. Nashua, etc., R. Corp., 4 Cush. (Mass.) 400, 50 AmD 794. 50. Denver, etc., R. Co. v. Roller, 100 Fed. 738, 41 CCA 22, 49 LRA 77; Maumee Valley R., etc., Co. v. Montgomery, 81 Oh. St. 426, 91 NE 181, 135 AmSR 802, 26 LRANS 987 and note. "The elements of care involved in the contract of carriage embrace all conditions which affect the passenger's safety. They extend to the permitted use or occupation of the carrier's track, not less distinctly than to the condition of the track, or to the operation of the carrier's own cars. No principle is suggested which would afford immunity to the owning carrier from the liability for the negligence of its licensee in a case of this character." Maumee Valley R., etc., Co. v. Montgomery, 81 Oh. St. 426, 429, 91 NE 181, 135 AmSR 802, 26 LRANS 987. [a] Collision.-A carrier is liable to its passenger for an injury received in a collision between its car and the car of another carrier which it permits jointly to use its track, although the collision results wholly from the negligence of the other carrier. Maumee Valley R., etc., Co. v. Montgomery, 81 Oh. St. 426, 91 NE 181, 135 AmSR 802, 26 LRANS 987 and note. 51. Louisville, etc., R. Co. v. Linton, 43 Ind. A. 709, 88 NE 532; Murch v. Concord R. Corp., 29 N. H. 9, 61 AmD 631; Sias v. Rochester R. Co., 169 N. Y. 118, 62 NE 132, 56 LRA 850; Beckman v. Meadville, etc., St. R. Co., 219 Pa. 26, 67 A 983. [a] Condition of place for boarding train.-The company owning a railroad is not liable for injuries to a person about to board a freight train, as a passenger of another company using the road, where such injuries are caused by the condition of the roadbed at such place, if it was not the usual place for the reception of passengers and was sufficiently safe and suitable for the ordinary purposes of freight trains. Murch v. Concord R. Corp., 29 N. H. 9, 61 AmD 631. 52. Gregory v. Georgia Granite R. Co., 132 Ga. 587, 64 SE 686; Central R., etc., Co. v. Phinazee, 93 Ga. 488, 21 SE 66; Central of Georgia R. Co. v. Bessinger, 17 Ga. A. 617, 87 SE 920; Louisville, etc., R. Co. v. Linton, 43 Ind. A. 709, 88 NE 532. 53. Murray v. Lehigh Valley R. Co., 66 Conn. 512, 519, 34 A 506, 32 LRA 539; Eaton v. Boston, etc., R. Co., 11 Allen (Mass.) 500, 87 AmD 730. "If the company operates its trains over the road of another com pany, 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." Murray v. Lehigh Valley R. Co., supra. [a] Statutes relating to the liability of railroad companies which are authorized to use the same tracks as between themselves do not affect the common-law liability of each with respect to third persons. Eaton v. Boston, etc., R. Co., 11 Allen (Mass.) 500, 87 AmD 730. 54. Chesapeake, etc., R. Co. v. Howard, 178 U. S. 153, 20 SCt 880, 44 L. ed. 1015 [aff 14 App. (D. C.) 262]; Louisville, etc., R. Co. v. Linton, 43 Ind. A. 709, 88 NE 532; Blumenthal v. Brooklyn Union El. R. Co., 158 App. Div. 558, 143 NYS 811; Missouri, etc., R. Co. v. Stone, 58 Tex. Civ. A. 480, 125 SW 587. [a] A carrier is responsible for the movement of its passenger coaches, whether operating them on its own track or on that of another railroad; and where a coach occupied by passengers is violently struck by the carrier's own cars or locomotives or by those of the road with which it is associated in the use of the track, it is liable for injuries to passengers caused thereby. Missouri, etc., R. Co. v. Stone, 58 Tex. Civ. A. 480, 125 SW 587. [b] Carrying other road's passengers. The facts that defendant railroad company, by a contract with another company, was bound to carry the latter's passengers on defendant's trains over a part of such other company's road, in consideration of being permitted to run its trains over it, and that the other company received the receipts from its passengers carried by defendant's trains, would not relieve defendant from its duties as a common carrier toward such passengers. Louisville, etc., R. Co. v. Linton, 43 Ind. A. 709, 88 NE 532. 55. Eaton v. Boston, etc., R. Co., 11 Allen (Mass.) 500, 87 AmD 730. 56. Chesapeake, etc., R. Co. V. Howard, 178 U. S. 153, 20 SCt 880. 44 L. ed. 1015 [aff 14 App. (D. C.) 262]. 57. Chicago, etc., R. Co. v. Posten, 59 Kan. 449, 53 P 465. 58. Chicago, etc., R. Co. v. Posten, 59 Kan. 449, 53 P 465. 59. Smith v. St. Louis, etc., R. Co., 85 Mo. 418, 55 AmR 380. 60. Brady v. Chicago, etc., R. Co., 114 Fed. 100, 52 CCA 48, 57 LRA 712; Chaffe v. Consolidated R. Co., 196 Mass. 484, 82 NE 497; Frazier v. New York, etc., R. Co., 180 Mass. other company so used by it which might have been discovered by the exercise of due care. 61 Liability for defects in cars used but not owned by carrier. Where a carrier of passengers by railroad uses cars which belong to another company, it will, by reason of its obligation to provide adequate and sufficient vehicles for safe conveyance, be liable for accidents arising from such defects in the cars as are discoverable on a careful and thorough examination.62 liabilities to passengers incident to the maintenance and operation of its road, by leasing the road to another; and hence if the lease is not given under such authority, the lessor remains liable to passengers for the negligence or misconduct of the lessee in the operation of the road.65 And in a few cases it has been stated broadly, without express reference to whether the lease was authorized or not, that the lessor is liable for injuries caused by negligence of the lessee.66 The lessor is liable for injuries occurring in the operation of its road by the lessee, where the road is being operated in the name of the lessor;67 and regardless of the effect of a lease in ordinary cases, if the lessor retains a control over the operation of the road it will be liable for injuries resulting through such operation. 68 The lessor of a steamboat, not being a quasi public corporation and having received no special privileges or benefits from the state, is not liable 427, 62 NE 731; Great Western R. 1 property." Moorshead v. United R. | Civ. A. 169, 170, 39 SW 643. Co. v. Blake, 7 H. & N. 987, 158 Re- Co., 119 Mo. A. 541, 571, 96 SW 261 print 773, 5 ERC 431. But see [aff 203 Mo. 121, 96 SW 261, 100 SW Sprague v. Smith, 29 Vt. 421, 70 611]. AmD 424 (holding that a railroad company using the road of another is not liable for injuries due solely to the negligence of the servants of the company owning the road in the operation of the trains of that com. pany). [§ 1317] f. Lessor or Lessee-(1) Liability of Lessor. The question whether a railroad or a street railroad company leasing its road to another company is liable for injuries to passengers resulting from the negligence of the lessee is one on which there is a great diversity of judicial opinion. As a general rule a railroad company or a street railroad company cannot, without legislative or municipal authority, divest itself of any of its duties or [a] "The reason for this rule is that the carrier contracts with the passengers and shippers to carry them and their property with reasonable safety, and the failure so to do is equally a breach of this contract, whether it results from negligence in the discharge of the duties of the master or of those of the servants." Brady v. Chicago, etc., R. Co., 114 Fed. 100, 104, 52 CCA 48, 57 LRA 712. 61. Littlejohn v. Fitchburg R. Co., 148 Mass. 478, 20 NE 103, 2 LRA 502. 62. Pennsylvania Co. v. Roy, 102 U. S. 457, 26 L. ed. 141. 63. Muntz v. Algiers, etc., R. Co., 111 La. 423, 35 S 624, 100 AmSR 495. 64 LRA 222; Moorshead V. United R. Co., 119 Mo. A. 541, 96 SW 261 [aff 203 Mo. 121, 96 SW 261, 100 SW 611] (where the conflicting lines of authorities are discussed). "It is proper to state, as a circumstance bearing on the weight of authority, that in most of the cases affirming the liability of the lessor, there were dissents.' Moorshead v. United R. Co., 119 Mo. A. 541, 567, 96 SW 261 [aff 203 Mo. 121, 96 SW 261, 100 SW 6111. [a] Conflicting reasons.-The cases may be classified with reference to the principles on which they hold the lessor responsible. "Some courts profess to do this because public policy requires it, but disagree as to what particular public policy is to be subserved by the rule. Some ground the responsibility on the fact that a railroad company is an artificial person, deriving its powers from the sovereignty and in consideration of those powers, agreeing to perform certain duties for the sovereignty; hence should be held strictly accountable for their proper performance. Other cases declare that charter duties cannot be transferred and that it is a charter duty to carry passengers safely. Others that neither charter nor common law duties can be transferred to a lessee so as to shift responsibility from the lessor; and that if the safe carriage of passengers is not a charter duty of the leasing company, it is at least a common-law duty, for the due performance of which the company that owns the railroad is answerable. Still other cases hold the lessor responsible because, by the terms of the lease, it retains control of the management and operation of the leased [10 C.J.-56] 63 64. Muntz v. Algiers, etc., R. Co., 111 La. 423, 35 S 624, 100 AmSR 495, 64 LRA 222; Moorshead v. United R. Co., 119 Mo. A. 541, 567, 96 SW 261 [aff 203 Mo. 121, 96 SW 261, 100 SW 611]. See generally Railroads [33 Cyc 703]; Street Railroads [36 Cyc 1469]. [a] "There is no common-law authority for such leasing by railroad companies; at least in so far as the contract impairs the right of the public to hold the lessor answerable for the proper discharge of the duties it assumed in consideration of the powers granted to it by the sovereignty." Moorshead v. United R. Co., 119 Mo. A. 541, 569, 96 SW 261 [aff 203 Mo. 121, 96 SW 261, 100 SW 611]. 65. U. S.-Washington, etc., R. Conn. Murray v. Lehigh Valley D. C.-Howard v. Chesapeake, etc., Ill. Chicago, etc., R. Co. v. Meech, La.-Muntz v. Algiers, etc., R. Co., Mo.-Moorshead v. United R. Co., N. Y.-Abbott v. Johnstown, etc., Or. Lakin v. Willamette Valley, S. C. Calder v. Southern R. Co., Tex.-International, etc., R. Co. v. W. Va.-Fisher v. West Virginia, "It is well settled that a railroad company cannot lease its road to another, without the consent of the Legislature, so as to absolve itself from its duties to the public as a common carrier, or avoid liability for damages occurring on its line of road to the public, although another company may be operating the road and in full and exclusive control thereof, and, of course, selling the tickets to persons who are passengers thereon." Collins v. Texas, etc., R. Co., 15 Tex. "The law seems well settled that a railroad company cannot lease its road and franchise to an individual without the consent of the Legislature, so as to relieve it from its obligation to the public, and when a lease is effected to an individual the law seems to treat the lessee as the agent of the railroad company for the purpose of determining controversies between the public and such company." Durfee V. Johnstown, etc., R. Co., 71 Hun 279, 281, 24 NYS 1016 [dist Beveridge v. New York El. R. Co., 112 N. Y. 1, 19 NE 489, 2 LRA 648, to the effect that in that case one railroad company leased to another, which under the statute they may legally do]. [a] Theory of agency.-"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." Murray v. Lehigh Valley R. Co., 66 Conn. 512, 520, 34 A 506, 32 LRA 539. [b] A railroad company which allows tickets to be issued in its name, in the same form as it had done before it leased the road, is liable for injuries caused by the lessee to a passenger who, for aught that appeared, did not know that the lessor was not itself managing the road. Washington, etc., R. Co. v. Brown, 17 Wall. (U. S.) 445, 21 L. ed. 675. [c] Joint liability.-A railroad company leasing its road is jointly liable with the lessee for negligent injury to a passenger of the lessee. Calder v. Southern R. Co., 89 S. C. 287, 71 SE 841, AnnCas1913A 894. See also infra § 1320. [d] Injuries beyond leased road. -Where the lessor is liable for the negligence of the lessee, such liability applies to an injury occurring at a point beyond the limits of the leased road on the track of another company, where the license to use such track was acquired by the lessor and was derived by the lessee through the lease. Bouknight v. Charlotte, etc., R. Co., 41 S. C. 415, 19 SE 915. 66. Chicago, etc., R. Co. v. Doan, 195 Ill. 168, 62 NE 826 [aff 93 Ill. A. 247]; Chicago Union Tract. Co. v. Stanford, 104 Ill. A. 99; Carleton v. Yadkin R. Co., 143 N. C. 43, 55 SE 429, 10 AnnCas 348 and note; Tillett v. Norfolk, etc., R. Co., 118 N. C. 1031, 24 SE 111. 67. Singleton v. Southwestern R. Co., 70 Ga. 464, 48 AmR 574. 68. Chesapeake, etc., R. Co. V. Howard, 178 U. S. 153, 20 SCt 880, 44 L. ed. 1015 [aff 14 App. (D. C.) 262]. for injury to a passenger from the negligence of the lessee.69 73 Where the lease is authorized by statute, the lessor of course remains liable for the acts of the lessee, if the statute provides that it shall.70 Some of the decisions hold that, where the lease is authorized, it implies an exemption from liability on the part of the lessor for the torts of the lessee,71 unless such liability is expressly reserved in the statute or ordinance,72 unless the lease is to an irresponsible company, or unless the control of the road is reserved by the lessor in the lease.74 Other cases, however, hold that, although there is legislative or municipal authority for the lease, the lessor is not absolved from such liability, unless in addition to such authority there is a provision expressly exempting the lessor from liability, notwithstanding the lessee agrees to assume all liability.76 Some of the cases make a distinction between injuries growing out of negligence in the operation of trains or the general management of the road over which the lessor company exercises no control and injuries due to the omission of duties owing to the public which are imposed primarily upon the lessor, holding that an authorized lease relieves the lessor from liability as to the negligence of the lessee in the operation of its trains," but not for injuries due to defects in the tracks, the roadbed, or other real property.' 78 77 [§ 1318] (2) Liability of Lessee. are uniform to the effect that the 69. Phelps v. Windsor Steamboat Co., 131 N. C. 12, 42 SE 335. 70. Quested v. Newburyport, etc., R. Co., 127 Mass. 204; Moorshead v. United R. Co., 119 Mo. A. 541, 96 SW 261 [aff 203 Mo. 121, 96 SW 261, 100 SW 6111. [a] Illustration.-The charter of a horse railroad corporation provided that the corporation should be liable for any injury which any person might sustain, by reason of the carelessness or misconduct of its agents or servants, and a subsequent statute authorized it to lease its road and franchise and to contract with any "responsible" person for the management of its road, but provided that such lease or contract should not release or exempt the corporation from any duty or liability to which it would otherwise be subject; and the corporation leased its road, the lessee providing horses, cars, and servants, and by the negligence of a servant of the lessee a passenger was injured, and it was held that an action for such injury could be maintained against the corporation. Quested v. Newburyport, etc., R. Co., 127 Mass. 204. 71. Arrowsmith v. Nashville, etc., R. Co., 57 Fed. 165; Mahoney v. Atlantic, etc., R. Co., 63 Me. 68; Graefe v. St. Louis Transit Co., 224 Mo. 232, 123 SW 835; Westervelt v. St. Louis Transit Co., 222 Mo. 325, 121 SW 114; Moorshead v. United R. Co., 203 Mo. 121, 96 SW 261, 100 SW 611 [aff 119 Mo. A. 441, 96 SW 261]; Fisher v. Metropolitan R. Co.. 34 Hun (N. Y.) 433. See generally Railroads [33 Cyc 703]; Street Railroads [36 Cyc 1469]. 72. Moorshead v. United R. Co., 119 Mo. A. 541, 96 SW 261 [aff 203 Mo. 121, 96 SW 261, 100 SW 611]. 73. Moorshead v. United R. Co., 119 Mo. A. 541, 96 SW 261 [aff 203 Mo. 121, 96 SW 261, 100 SW 61]. 74. Moorshead v. United R. Co., 203 Mo. 121, 96 SW 261, 100 SW 611 [aff 119 Mo. A. 541, 96 SW 261]. 75. Braslin V. Somerville Horse R. Co., 145 Mass. 64, 13 NE 65 (In this case stress was laid on the fact that only a portion of the railroad of the lessor company was leased, The authorities lessee is liable 81 for its own negligence or that of its employees in the operation of the leased road,79 although the lease executed is in excess of its powers, 80 nor will this liability be affected by a subsequent confirmatory statute.s The lessee is also liable for any injury to its passengers in the operation of its trains, although the specific act of negligence is committed by the company over whose tracks it operates its trains,82 and also for injuries due to the defective conditions of the track or the roadbed, although such defects were in the original construction, or existed at the time of the lease;83 and this has been held to be true, although the road is owned by the state which also furnishes the motive power and controls the road through its agents, and the accident happens through the negligence of the state's agents. The operating lessee of a railroad must exercise care to protect passengers and others having the right on its depot premises in keeping such premises and the approaches thereto in a reasonably safe condition,85 and in some jurisdictions this rule applies by virtue of statute.86 Where a transit system is leased from a transit commission, the negligence, if any, in adopting equipment installed and controlled by the commission, by which a passenger is injured, is not the negligence of the lessee,87 84 that such company was not going out of business and that indemnity was taken by it for the acts of the lessee thereby showing that both parties understood that the lessor company was not to be released by the contract from the discharge of its public duties); Pierce v. North Carolina R. Co., 124 N. C. 83, 32 SE 399, 44 LRA 316; Ft. Worth St. R. Co. v. Ferguson, 9 Tex. Civ. A. 610, 29 SW 61. See generally Railroads [33 Cyc 703]; Street Railroads [36 Cyc 1469]. 76. Braslin V. Somerville Horse R. Co., 145 Mass. 64, 13 NE 65. 77. Arrowsmith v. Nashville, etc., R. Co., 57 Fed. 165; Moorshead v. United R. Co., 119 Mo. A. 541. 96 SW 261 [aff 203 Mo. 121, 96 SW 261, 100 SW 611]. 78. Moorshead v. United R. Co., 119 Mo. A. 541, 96 SW 261 [aff 203 Mo. 121, 96 SW 261, 100 SW 611]. See generally Railroads [33 Cyc 703]. V. 79. Chesapeake, etc., R. Co. Howard, 178 U. S. 153, 20 SCt 880, 44 L. ed. 1015 [aff 14 App. (D. C.) 262]; Howard v. Chesapeake, etc., R. Co., 11 App. (D. C.) 300; Kuhlen v. Boston, etc., St. R. Co., 193 Mass. 341, 79 NE 815, 118 AmSR 516, 7 LRANS 729; Feital v. Middlesex R. Co., 109 Mass. 398, 12 AmR 720. See generally Railroads [33 Cyc 705]; Street Railroads [36 Cyc 1469]. [a] A lessee of tracks and station facilities, subject to the rules and regulations of the lessor, is nevertheless liable for a failure to exercise supervision over persons coming to the station to take its trains, necessary to prevent injury by crowding into the cars. Kuhlen v. Boston, etc., St. R. Co., 193 Mass. 341, 79 NE 815, 118 AmSR 516, 7 LRANS 729. 80. Chesapeake, etc., R. Co. V. Howard, 14 App. (D. C.) 262 [aff 178 U. S. 153, 20 SCt 880, 44 L. ed. 1015]. 81. Chesapeake, etc., R. Co. V. Howard, 14 App. (D. C.) 262 [aff 178 U. S. 153, 20 SCt 880, 44 L. ed. 1015]. 82. Smith v. Chicago, etc., R. Co., 163 Ill. A. 476. [a] Reason for rule.-"Otherwise, the passengers on the road of the lessee or licensee would be at the mercy of the lessor and all that would be necessary for lessee to escape liability would be to show the negligent act complained of committed by the lessor." Smith v. Chicago, etc., R. Co., 163 Ill. A. 476, 481. 83. Eureka Springs R. Co. v. Timmons, 51 Ark. 459, 11 SW 690; Littlejohn v. Fitchburg R. Co., 148 Mass. 478, 20 NE 103, 2 LRA 502; Philadelphia, etc., R. Co. v. Anderson, 94 Pa. 351. 84. Littlejohn v. Fitchburg R. Co., 148 Mass. 478, 20 NE 103, 2 LRA 502; Peters v. Rylands, 20 Pa. 497, 59 AmD 746. [a] Rule applied.-A railroad company operating a road leased from the state is liable under 1 Pub. St. c 112 § 212 for the death of a passenger in an accident caused by water working away the embankment under the track, if the danger might have been discovered by due care, even though the defect was in the original construction of the leased road, or was due to a failure of the state to make repairs which it was under contract to make. Littlejohn v. Fitchburg R. Co., 148 Mass. 478, 20 NE 103, 2 LRA 502. 85. St. Louis, etc., Co. v. Caldwell, 93 Ark. 286, 124 SW 1034. 86. See statutory provisions. And see St. Louis, etc., R. Co. v. Caldwell, 93 Ark. 286, 124 SW 1034. 87. Theall v. Boston El. R. Co., 213 Mass. 327, 100 NE 543. [a] Leasing subway from commission-The rule that one, who, having a power of selection, voluntarily uses the property of another in his business, makes it his for the purpose of that business has no application to a railroad leasing a subway constructed and controlled by a transit commission. Theall v. Boston El. R. Co., 213 Mass. 327, 100 NE 543. 88. Joint and several liability see infra § 1320. Cross references: Safety of premises see generally infra §§ 1337-1347. and free from obstructions or dangerous instrumentalities.89 One of such companies is under the same duty as to passengers using the premises in connection with the other roads that it owes to its own passengers, and is bound to operate its trains with the same due regard for their safety;90 and such a company is liable to its own passengers for injuries caused by the negligence of the other company." A carrier using a union depot is liable for a negligent failure to keep it or the approaches thereto in a safe condition, although the premises are under the control of a receiver of the depot company.93 91 92 A union depot company which undertakes to provide common terminal facilities for passenger carriers owes to passengers and their attendants the duty of keeping the station and its facilities in a proper condition for their safety; and, where it undertakes to direct passengers to their proper trains, it is bound to see that this duty is performed in a proper manner,95 and, if it relies on train employees so to direct passengers, it is liable for injury caused to a passenger or his attendant in Using platform or station constructed by another see generally supra § 1317. 89. Kansas City Southern R. Co. v. Watson, 102 Ark. 499, 144 SW 922; Atchison, etc., R. Co. v. Cochran, 43 Kan. 225, 23 P 151, 19 AmSR 129, 7 LRA 414; Peters v. Detroit, etc., R. Co., 178 Mich. 481, 144 NW 827; Williams V. Southern R. Co., 102 Miss. 617, 59 S 850. [a] In case of common use of a station track, each company is liable to its passengers for injuries by reason of defective condition of the station. Atchison, etc., R. Co. V. Cochran, 43 Kan. 225, 23 P 151, 19 AmSR 129, 7 LRA 414. 90. Chicago, etc., R. Co. v. Stepp, 164 Fed. 785, 90 CCA 431, 22 LRANS 350 [aff 151 Fed. 908]; Kansas City Southern R. Co. v. Watson, 102 Ark. 499, 144 SW 922; Kuhlen v. Boston, etc., St. R. Co., 193 Mass. 341, 79 NE 815, 118 AmSR 516, 7 LRANS 729. [a] "The general principle has been established that one who, though not strictly in control of a defective thing or dangerous place, yet uses it for his own benefit or for his own purposes invites another to enter it, may, if the other elements of liability concur, be held responsible to the latter for an injury caused by the defect or danger." Kuhlen v. Boston, etc., St. R. Co., 193 Mass. 341, 350, 79 NE 815, 118 AmSR 516, 7 LRANS 729. 91. Frazier v. New York, etc., R. Co., 180 Mass. 427, 62 NE 731. 92. Union Depot. etc., R. Co. v. Londoner, 50 Colo. 22, 114 P 316, 33 LRANS 433; Johnson v. Florida East Coast R. Co., 66 Fla. 415, 63 S 713, 50 LRANS 561 and note, AnnCas 1916C 1210; Chicago, etc., R. Co. v. Gates, 61 Ill. A. 211 [aff 162 111. 98, 44 NE 1118]; Herrman V. Great Northern R. Co., 27 Wash. 472, 68 P 82, 57 LRA 390. [a] Union depot.-A railroad company selling a ticket over its own and a connecting line is responsible to a passenger for injuries from negligence, whether of its own employees or of the employees of a terminal association in a union depot used by such company. Chicago, etc., R. Co. v. Gates. 61 Ill. A. 211 [aff 162 Ill. 98, 44 NE 1118]. 93. Herrman V. Great Northern R. Co., 27 Wash. 472, 68 P 82, 57 LRA 390. [a] Neglect of receiver.-Where the receiver of a union depot company neglects to maintain safe premises, his negligence is that of the carrier whose duty it is to maintain them. Herrman v. Great Northern R. Co., 27 Wash. 472, 68 P 82, 57 LRA 390. 94. Union Depot, etc., Co. v. Lon following the directions of such employee.96 [§ 1320] h. Joint and Several Liability. Where the injury sustained by a passenger is caused by the joint or concurrent negligence of two or more carriers or companies, they may be held jointly or severally liable.97 But it has been held that there can be no joint liability where the alleged negligence consists of separate and independent acts of both companies or defendants, over which neither has entire control.98 Where two carriers jointly operate a road or particular train, they are jointly and severally liable for injuries caused by the negligence of either." Where two carriers use the same station, they are jointly and severally liable for injuries to a passenger of one of the carriers, by reason of the negligence of either in respect to the safe condition of the premises.1 99 Carrier and city. Where a passenger is injured by the concurrent negligence of the carrier, a street railroad company, and the city, they are jointly liable.2 [§ 1321] i. Liability of Agents and Servants; Trustee. The employees of a carrier in charge of a doner, 50 Colo. 22, 114 P 316, 33 [a] The rule that a landowner or 95. Union Depot, etc., Co. v. Londoner, 50 Colo. 22, 114 P 316, 33 LRANS 433. 96. Union Depot, etc., Co. v. Londoner, 50 Colo. 22, 114 P 316, 33 LRANS 433. 97. U. S.-Grand Trunk R. Co. v. Ark.-St. Louis, etc., R. Co. V. Cal. Kimic v. San Jose-Los Gatos D. C.-Washington, etc., R. Co. v. Ga.-Riley V. Wrightsville, etc., Ill. Schlauder V. Chicago, etc., Iowa. Parker v. Des Moines City La.-Englert v. New Orleans R., Mass.-Lindenbaum v. New York, Mich.-Peters v. Detroit, etc., R. Miss. Williams V. Southern R. Mo.-Taylor v. Grand Ave. R. Co., Concurrent negligence in causing [a] Пlustration.-Where a passen- been placed by the gas company in a dangerous position, and that she had negligently been directed to alight at such place by the carrier, the sustaining of a demurrer to her complaint was proper, since the alleged negligence consisted of separate and independent acts of both defendants, over which neither had entire control. Howard v. Union Tract. Co., 195 Pa. 391, 45 A 1076. 99. Jenkins v. Atlantic Coast Line R. Co., 179 Fed. 535; Jones v. Pennsylvania R. Co., 19 D. C. 178 [rev on other grounds 155 U. S. 333, 15 SCt 136, 39 L. ed. 176]; Chicago, etc., R. Co. v. Rowell, 151 Ky. 313, 151 SW 950; Texas Cent. R. Co. v. Marrs, (Tex. Civ. A.) 101 SW 1177; American Express Co. v. Ogles, 36 Tex. Civ. A. 407, 81 SW 1023; Collins v. Texas, etc., R. Co., 15 Tex. Civ. A. 169, 39 SW 643. as. [a] Illustrations.—(1) Where the trains of one railroad company were run over tracks leased from a second, and the tracks were jointly used by the lessee and a third company, all three companies are liable principals to passengers injured by the act of a switchman of the third company in opening a switch under a train of the lessee. Chicago, etc., R. Co. v. Rowell, 151 Ky. 313, 151 SW 950. (2) Where an association makes a contract with a railroad company for a certain consideration to transport excursionists over its road and another road for the benefit of both companies, both sharing equally in the profits, both companies are jointly and severally liable for damages occasioned by the neglect of either in the performance of a carrier's duties. Collins v. Texas, etc., R. Co., 15 Tex. Civ. A. 169, 39 SW 643. (3) Where a passenger is being transported by an express company on a special train made up expressly for it. and is injured through the negligence of the railroad, he may sue either the express company or the railroad, or both. American Express Co. v. Ogles, 36 Tex. Civ. A. 407, 81 SW 1023. [b] Where there is a common operation of trains on tracks used in common by two companies, the tickets of each being good on trains of the other, each is liable for injuries to a passenger on any of the trains. Jones v. Pennsylvania R. Co., 19 D. C. 178 [rev on the facts 155 U. S. 333. 19 SCt 136, 39 L. ed. 176]. 1. New York, etc.. R. Co. V. Reilley, 49 Ind. A. 26, 96 NE 623; Peters v. Detroit. etc., R. Co., 178 Mich. 481, 144 NW 827; Williams v. Southern R. Co., 102 Miss. 617, 59 S 850. 2. Reynolds v. Metropolitan St. R. Co., 180 Mo. A. 138, 168 SW 221. train or other vehicle on which the passenger is injured are not personally liable to such passenger for the injury, unless it results from the misfeasance and positive wrongs of such employees.3 Trustee or receiver. A trustee in possession and control, and exercising for the time being the franchises of the carrier, is responsible to passengers for the negligence of the employees of the carrier,* although he has agreed to manage it according to the orders of the beneficiary. The receivers of a railroad or street railroad who are vested with the power to manage and operate it are liable as receivers for injuries to a passenger resulting from negligence in its operation, and the company cannot be held responsible for such negligence." 9 [ 1322] 10. Defenses in General. It is no defense to a carrier, such as a railroad or street railroad, in an action for injuries to a passenger, that the passenger had not paid his fare at the time of the injury, where the fare had not yet been demanded, or that he was guilty of forgery in using the ticket of another, or that the carrier did as other carriers have customarily done,' or that another carrier was also negligent in connection with the accident.11 Where a person seeks to recover for a personal injury on the theory of the relation of passenger and carrier between the parties, defendant may plead and prove that the relation of master and servant existed.12 3. Bryce v. Southern R. Co., 125 Fed. 958 [den reh 122 Fed. 709]; Sutton v. Southern R. Co., 82 S. Č. 345. 64 SE 401. See generally Master and Servant [26 Cyc 1543]. [a] A railroad station agent, under no duty to notify a train that another train is preceding it, is not liable for injuries to a passenger in a rear end collision resulting from a failure to give such notice. Sutton v. Southern R. Co., 82 S. C. 345, 64 SE 401. 4. O'Toole v. Faulkner, 29 Wash. 544, 70 P 58. 5. O'Toole v. Faulkner, 29 Wash. 544, 70 P 58. 6. Moore v. Metropolitan St. R. Co., 189 Mo. A. 555, 176 SW 1120. See generally Railroads [33 Cyc 719]; Street Railroads [36 Cyc 1468]. 7. Contributory negligence as a defense see infra §§ 1481-1528. 8. Chicago, etc., R. Co. v. Lee, 92 Fed. 318, 34 CCA 365. Payment of fare generally supra §§ 1043, 1078-1106. see 9. Mirrielees v. Wabash R. Co., 163 Mo. 470, 63 SW 718. [a] Thus, in an action for injuries to a person riding on a freight train, it is no defense that plaintiff was guilty of forgery, by reason of the fact that he was riding on a mileage ticket issued to another, and that he signed such other's name to the part detached by the conductor in payment of his fare, where it appears that the owner of the ticket authorized plaintiff so to sign his name. Mirrielees v. Wabash R. Co., 163 Mo. 470, 63 SW 718. 10. Williams V. Spokane Falls, etc., R. Co., 39 Wash. 77,80 P 1100, 42 Wash. 597, 84 P 1129. 11. Cal. Cordiner v. Los Angeles Tract. Co., 5 Cal. A. 400, 91 P 436. Ga. Southern R. Co. v. Webb, 116 Ga. 152, 42 SE 395, 59 LRA 109. Ill. Schlauder V. Chicago, etc.. Tract. Co., 253 I. 154, 97 NE 233 [rev 160 Ill. A. 309]. Iowa.-Parker v. Des Moines City R. Co., 153 Iowa 254, 133 NW 373, AnnCas1913E 174 and note. Mo.-Wills V. Atchison, etc., R. Co., 133 Mo. A. 625, 113 SW 713. N. Y.-Schneider V. Second Ave. R. Co.. 133 N. Y. 583, 30 NE 752 [mod 59 N. Y. Super. 536, 15 NYS 556]. 10 Va.-Foreman 13 Traveling illegally. Where a passenger on a train is traveling for an illegal purpose, and the railroad is a participator in such purpose, the rule in pari delicto, etc., will apply in a suit against the company for negligence and consequent injury to the passenger. But it has been held that a passenger traveling on a pass forbidden by law is not in pari delicto with the railroad company in violating the law, so as to prohibit him from recovering for injuries, although the pass contains a provision exempting it from liability for injuries caused by the negligence of itself or its employees.1 [§ 1323] B. Negligence or Wrongs of Carrier's Employees in General-1. Who Are Employees.15 There is in general no difficulty in determining who are servants or employees of the carrier in such sense as to render it liable for their negligence or wrongful acts, the question which has usually arisen being as to whether the wrong of the servant or employee was within the scope of his authority, or in the course of his employment, so as to render his principal liable for injuries resulting therefrom.16 The duty of the carrier to protect the passenger must be discharged by means of its employees engaged in carrying out the transportation contracted for.17 It has been held that a carrier is liable if a passenger is injured in an accident occasioned by the want of skill of a person who, although not regularly employed by the carrier, is V. Norfolk, etc., [b] Last clear chance doctrine.— [c] Injury to traveler on street.Where defendant and another street railroad company operated cars over two parallel tracks in common, and plaintiff, a passenger on a car of the other company, was injured by alighting on one of the tracks in front of one of defendant's cars, the companies being distinct, defendant was not liable as a common carrier, plaintiff being a traveler on the street as far as defendant was concerned, and hence it was immaterial whether the other company was negligent in leaving open the gate on its platform next the parallel track, as the negligence of that company could not be imputed to defendant. Foreman V. Norfolk, etc., News Co., 106 Va. 770, 56 SE 805. Joint and several liabilities generally see supra § 1320. 12. Susznik v. Alger Logging Co., 76 Or. 189, 147 P 922. 13. Redd v. Muscogee R. Co., 48 Ga. 102; Turner v. North Carolina R. Co., 63 N. C. 522. [a] Illustration. Where an officer of the Confederate army, while absent from service, took passage in a railroad train for the purpose of reporting to his general commanding, and while on his way received personal injuries through the negligence of the agents of the company, it was held that, the journey of the officer being for an illegal purpose, he could not recover against the company. In this case it did not appear that the railroad company knowingly participated in the illegal act of the passenger, but the case was decided on that supposition. Turner V. North Carolina R. Co., 63 N. C. 522. [b] The fact that a ticket is issued on Sunday does not affect the right of the passenger traveling thereunder to recover in an action ex delicto for injuries negligently or wrongfully inflicted on him during such transportation. See Sunday [37 Cyc 574]. 14. John v. Northern Pac. R. Co.. 42 Mont. 18, 111 P 632, 32 LRANS 85; McNeill V. Durham, etc., R. Co., 135 N. C. 682, 47 SE 765, 67 LRA 227. Limitation from liability for negligence in pass generally see supra § 1158. 15. Cross references: Employee acting as police officer and special officer see infra § 1329. Liability of agents and servants see supra § 1321. Number and efficiency of servants see Obeying or disobeying directions of 17. Ala. Kansas City, etc., R. Co. Iowa.-Newman v. Chicago, etc., R. Co., 154 Iowa 72, 134 NW 585. Mo.-Augustus v. Chicago, etc., R. Co., 153 Mo. A. 572, 134 SW 22. V. Pa. Mittleman V. Philadelphia [a] The conductor of a train (1) is charged with caring for the safety |