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Taylor v. Grand Trunk Railway Company.

though it is supposed to be the correct practice to continue the criminal proceeding to await the decision of the civil suit, and then impose a fine in view of it, which is said to be the English practice, to which authorities are cited. So in Fry v. Bennett, 4 Duer, 247, which was a suit for a libel in the New York Herald, it was held that plaintiff might recover exemplary damages, although defendant was liable to indictment; and such is the doctrine of Cole v. Tucker, 6 Texas, 266. In Corwin v. Walton, 18 Mo. 71, it was held that exemplary damages might be recovered, although defendant had been convicted and fined for the same assault and battery, but that this fact might be considered in mitigation of damages, and also that the court in fixing the amount of the fine might properly consider a recovery in a civil suit. So in Ohio it is held, that exemplary damages may be awarded, although defendant may have been prosecuted criminally. Roberts v. Mason, 10 Ohio (N. S.), 277. See also Sedgwick on Damages (4th ed.), 535, and cases where the weight of authority is supposed to be against such a limitation. It is not necessary, however, to determine this question as it does not arise on this case.

It is contended by the defendants that there was no evidence tending to prove gross negligence; there was evidence, however, tending to prove that the accident was caused by the breaking of a rail about two feet from the end where the track was very much curved, and about fifteen or twenty feet from Amonoosuck river, and that two passenger cars were thrown part way down the bank; that the rail which broke was inside the curve; that it was an old rail and appeared very much worn and battered and broomed up from one to two feet from the end; that it was a U rail, the old style, and that the T rail is the new style; and that the train was going not over twenty miles the hour. It further appeared that the broken rail was not preserved or produced at the trial, although the defendants offered evidence to show that the breakage was caused by a hidden defect in the rail, which they were not in fault for not detecting.

We are of opinion, upon the whole, that there was evidence to go to the jury upon the point of gross negligence. It tended to show that the accident was caused by a defective rail, and that this one, at a place somewhat dangerous, was old and very much worn and battered and broomed; and whether there was gross carelessness in permitting that rail to remain under the circumstances was VOL. II.-31

Nashua Lock Co. v. The Worcester and Nashua Rainoad Co.

peculiarly for the jury to decide. Upon this point, therefore, we think there was no error; but for error in the instructions there must be

A new trial.

NOTE. The English case of Redhead v. Midland Railway Co., 1 Albany Law. Journ. 318, decided by the exchequer chamber since the above decision, may be properly referred to in connection with this case. After a most elaborate review of the English and American authorities, the court established the doctrine, so far at least as relates to England, that carriers of passengers are not insurers of the absolute road-worthiness of their vehicles, or, in other words, that there is no implied contract that their carriages and machinery are free from those defects which neither skill, care, nor foresight can detect. In that case the plaintiff, while a passenger in defendants' car, was injured by an accident caused by the breaking of the tire of one of the wheels; it was proved that such breaking was owing to an air bubble in the tire, which was not attributable to any carelessness on the part of the manufacturers, nor was capable of detection afterward. Held, that the defendants were not liable. The case of Alden v. The N. Y. Cent. R. R., 26 N. Y. 102, in which a contrary decision was made on nearly the same facts, was severely criticised and its authority very much shaken.

In the recent case of Meier v. The Penn. R. R. Co., 64 Pa. 225, it is held, that prima facie, when a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence casting the onus upon the carrier of disproving it.

On the question of exemplary damages, see the case of Goddard v. The Grand Trunk Railway Co., ante.

NASHUA LOCK COMPANY V. THE WORCESTER AND NASHUA RAILROAD COMPANY.

(48 N. H. 339.)

Common carriers — Liability beyond their line — Associated companies. Where there is a continuous line of different carriers, united by an agreement under which they carry goods through the connected line for one price, which they divide among themselves in proportions fixed in their agreement, if one of the carriers receives goods to be transported on the continuous line, marked for any place on it, and receives pay for transportation through, such carrier is prima facie bound to carry the goods, or see that they are carried, to the place of destination, and is liable for any accidental loss happening on any part of the connected line.

THIS was an action brought to recover the value of ten cases of locks, marked for Wiesbushhabatt & Co., New York, and delivered to defendants, as freight, at Nashua, N. II., to be transported to New York, freight paid for the entire distance. The defendants were a corporation owning and operating a railroad between

Nashua Lock Co. v. The Worcester and Nashua Railroad Co.

Nashua and Worcester, which formed a connection at the latter point with the Norwich and Worcester railroad, which latter connected with a line of steamers from Norwich to New York, known as the "Norwich Transportation Company." These several companies had an arrangement to transport freight from Nashua to New York and to divide the price paid for transportation according to certain proportions fixed. The cases were properly forwarded by defendants and delivered to the Norwich and Worcester railroad, and were by the latter delivered to the transportation company, which shipped them on board one of their steamers for New York. This steamer collided during its passage with a sailing vessel, took fire, and was destroyed with its freight. The value of the steamer was ascertained, and a pro rata share assigned to defendants, who declined to pay it.

A. W. Sawyer, for plaintiffs.

G. Y. Sawyer, for defendants.

PERLEY, C. J. According to the agreed case, or the three corpo rations, the Worcester and Nashua railroad, the Norwich and Worcester railroad, and the Norwich and New York Transportation company, were engaged as common carriers in the business of transporting goods between Nashua and New York in a continuous line under an agreement by which they divided the price paid for transportation through in proportions fixed by the agreement. The agreement is not before us; but from the general statement of it in the case it must be inferred that the parties to it were mutually bound to transport goods on their connected line according to the direction given by the owner, when they were received for transportation in the usual course of the business by any one of the parties. In this case it would have been a violation of the agree ment among the parties to the continuous line, if either the Nor. wich and Worcester railroad or the transportation company had refused to receive and transport the goods toward their destination in the usual course of the business, as they were marked and directed when they were received by the defendants.

The contract between the plaintiffs and defendants must be implied from the facts stated in the agreed case. There was no special agreement, written or oral, that the goods should be carried to New York, nor that he responsibility of the defendants should end on

Nashua Lock Co. v. The Worcester and Nashua Railroad Co.

delivery to the Norwich and Worcester railroad. The general question is, whether the defendants undertook for the transportation of the goods through to New York, or only agreed to carry and deliver, or tender, them to the Norwich and Worcester railroad.

Had the defendants corporate authority to contract for the transportation of the goods beyond their own line? We have no hesitation in holding that railroads may contract to carry goods and passengers beyond their own lines. They could not answer the main objects of their incorporation without the exercise of this power. They are laid out and established with reference to connections in business with other extended lines of transportation, and the power to contract for transportation over the connected lines is implied in the general grant of corporate authority. On this point the authorities are nearly unanimous. It has been held otherwise in Connecticut by the opinion of three judges against two. Hood v. N. Y. & N. H. Railroad, 22 Conn. 1; Elmore v. The Naugatuck Railroad, 23 id. 457; The Naugatuck Railroad v. The Button Company, 24 id. 468. But in a later case (Converse v. The Noru ich & N. Y. Transportation Company, 33 id. 166), the courts in that state have shown some disposition to recede from the doctrine of their earlier cases. No other authorities are cited by the defendants to this point, and I have found no others that sustain their view of this question. The authorities the other way are numerous and decisive (Muschamp v. The Lancaster & Preston Railway, 8 M. & W. 421; Weed v. The S. & S. Railroad, 19 Wend. 524; The F. & M. Bank v. The Ch. Transportation Company, 23 Vt. 186; McCluer v M. & L. Railroad, 13 Gray, 124; Rogers v. R. & B. Railroad, 27 Vt. 110; Wilcox v. Parmelee, 3 Sandf. 610; Perkins v. The P. S. & P. Railroad, 47 Me. 573); and railroads may contract for transportation beyond the limits of the states in which they are established (McCluer v. The M. & L. Railroad, 13 Gray 124; Burtis v. B. & S. 1. Railroad, 24 N. Y. 369); and when a railroad makes a contract for transportation beyond its own line it will be presumed that it had authority to do it. McCluer v. M. & L. Railroad, qua supra.

In the agreed case it is said the goods were received to be forwarded, etc., and from this phrase an argument is drawn that the agreement of the defendant was to forward to the next party in the line, and not to carry through to New York. But here was no express agreement in any particular terms, and we are not called on to interpret the language used in any contract. The nature of

Nashua Lock Co. v. The Worcester and Nashua Railroad Co.

66 The

the undertaking must be inferred from the facts stated in the agreed case, and cannot be determined by the phrase used in stating them. Even in a written contract, where the term forwarded is used, if the thing to be done belongs to the business of a carrier, he will be charged as such. In Wilcox v. Parmelee, 3 Sandf. 610, the court say: criticism of the defendant on the word forwarded used in the contract is not just. It applies to the whole distance, as well to those portions of the route where other parties were owners of the vessels, as to that portion where he employed his own means of transportation. He was to forward the goods from New York to Fairport, not to Buffalo, which he now says was the terminus of his own immediate route. The words used by him can only mean that he was to carry or transport the goods, and whether in his own vessels or in those of others was perfectly immaterial to the plaintiff." In Schroeder v. The Hudson River Railroad, 5 Duer, 55, the defendants gave a receipt for goods "to be forwarded per Hudson river freight train to Chicago;" and under this receipt it was held that the defendants were bound to carry the goods to Chicago. So in the recent case of Buckland v. The Adams Express Company, 97 Mass. 124, the defendants were charged as common carriers, though they described themselves in the contract under which they received the goods, as "express forwarders." In the present case the under taking of the defendants must be implied from the facts stated in the agreed case, and the particular language used in stating them is of no materiality.

Since the introduction of steam as the means of transportation by land and water the general question raised in this case has been much considered in different jurisdictions, and there is no little confusion and contradiction of authority respecting the rule which shall govern the rights and liabilities of the parties, where goods are put in the course of transportation to distant places through connected lines associated in the business of common carriers. Where such lines are engaged in carrying passengers and their luggage the several parties to the continuous line incur, it would seem, the same liabilities for damage and loss of the luggage as in cases where they carry goods only. Darling v. The Boston & Worcester Railroad, 11 Allen, 295; Quimby v. Vanderbilt, 17 N. Y. 312; Weed v. The Rail road, 19 Wend. 534; The Ill. Central Railroad v. Copeland, 24 M 332; Ill. Central Railroad v. Johnson, 34 id. 382.

In England and in several of the United States it has been held.

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