SECTION III. Duty of the respective Companies to Passengers and Others. 1. Company bound to keep road safe. Act of other companies no excuse. 6. This rule extends to railways, where persons are rightfully upon them. 2. Some cases hold that passengers can only n. 3. Cases, as to the necessity of privity of sue the company carrying them. contract existing, reviewed. 3. Passenger carriers bound to make landing- 7. One who keeps open public works is bound places safe. to keep them safe for use. 4. But those who ride upon freight trains, by 8. Corporations presumptively responsible to the same extent as natural persons in the same situation. favor, can only require such security as 5. Owners of all property bound to keep it in 9. A railway company drawing the cars of a connecting road over its own line is responsible as a common carrier. § 144. 1. A public company, like a canal or railway, who are allowed to take tolls, owe a duty to the public to remove all obstructions in the canal or upon the railway, although not caused by themselves or their servants, but by those who are lawfully in the use of the canal or railway, or by mere strangers. Nor can a railway company excuse themselves from liability for injury to passengers carried over any part of their road, by showing that the particular neglect was that of a servant employed and paid by a connecting road as a switchman at the junction of two railways.2 1 Parnaby v. Lancaster Canal Co., 11 Ad. & Ell. 223; and Lancaster Canal Co. v. Parnaby, id. 230. See post, § 145, pl. 7, 8, and note. 2 McElroy v. Nashua & Lowell Railw., 4 Cush. 400. Shaw, Ch. J., here says: "The switch in question, in the careless and negligent management of which the damage occurred, was a part of defendants' road, over which they must necessarily carry all their passengers, and although provided for, and 'attended by a servant of the Concord company, at their expense, yet it was still a part of the Nashua & Lowell Railroad, and it was within the scope of their duty to see that the switch was rightly constructed, and attended, and managed, before they were justified in carrying passengers over it." So also where a train of another company and through its own fault, ran into a train standing upon its own track, but over which the other company had running power, it was held the company owning the track was prima facie responsible to its own passengers thus injured. Ayles v. S. E. Railw., L. R. 3 Exch. 146. So also where a company grants the use of its track to another company whereby through the fault of the latter company its own passengers are injured, the first company is responsible. Railway Co. v. Barron, 5 Wallace, 90. And a railway passenger carrier is responsible for the sufficiency of a carriage which it borrows and uses, 2. But it was held that a passenger, who suffered an injury in attempting to get upon the cars of one company while using *the road of another company, by contract with such company, through a defect in the construction of the road of the latter company, could not maintain an action against them, there being no privity of contract between the plaintiff and such company; the remedy being in such case against the company who were carrying the plaintiff as a passenger.3 to the same extent as for its own. Jetter v. N. Y. & H. Railw., 39 N. Y. (2 Keyes) 154. 3 Murch v. The Concord Railw., 9 Foster, 9; Winterbottom v. Wright, 10 M. & W. 109. But a railway company owe a public duty, independent of all privity of contract, to keep their public works in such a state of repair, and so watched and tended as to insure the safety of all who are lawfully upon them, either by their direct permission or mediately through contract with other parties. Sawyer v. Rutland & Bur. Railw., 27 Vt. 377. This is here thus stated by Isham, J.: “ That duty is imposed upon the defendants at common law, and it arises not from any contract of the parties, but from the acceptance of their charter, and from the character of the services they have assumed to perform. The obligation to perform that duty is coextensive with the lawful use of the road, and is required as a matter of public security and safety." The same principle is maintained in Smith v. New York & Harlem Railw. Co., 19 N. Y. 127, where it was decided that a switch-tender, employed by a railway company on a portion of its road upon which it permits another company to run trains, is not a servant of the latter; and an engineer of the latter, injured by the negligence of such switch-tender, may maintain an action against the company employing him. But where animals were killed by the train of one company, while rightfully upon the track of another company, it was held that the company owning the road was responsible for the damage. Ind. & Madison Railw. v. Solomon, 23 Ind. 534. So an apothecary, who sold a deadly poison labelled as a harmless medicine, was held directly liable to all persons injured thereby, in consequence of the false label, without fault on their part. The liability of the apothecary arises, not out of any contract or privity between him and the person injured, but out of the duty which the law imposes upon all, to avoid acts in their nature dangerous to the lives of others. He is liable, therefore, though the poisonous drug, with such label, may have passed through many intermediate sales before it reaches the hands of the person injured, upon the same principle that one who suffers a dangerous animal to go at large, is responsible for the consequences. Thomas v. Winchester, 2 Seld. 397. In Toomey v. London Br. & South C. Railw., 3 C. B. (N. S.) 146, the plaintiff mistook a door at a railway station, and passing through it, instead of another, fell down a flight of steps and was hurt. There was a light over the door which he intended to pass through, and a printed notice showing the purpose of it. There was also an inscription over the other, but no light. The defendant could not read. There was no evidence that the steps were more than ordinarily dangerous. Held that the company were not liable. But a railway * 604 *3. And while the cases recognize the duty in such companies as carry passengers, either upon their own road or that of other companies, by permission or lease, to make the approaches to such road safe, at all points where freight or passengers are usually received, this duty does not exist in regard to a passenger who, out of special favor, is allowed to get upon the train at an unusual place for receiving passengers. And the same rule has been extended to the owners of docks, who keep up the gangways to ships while remaining at their docks; and where they were left unsafe by the negligence of the servants having charge of the same, and one who visited a ship in the dock on business, by invitation of the officer, and was injured by the defect in the gangway without his own fault, it was held the dock owners were responsible.1 4. And one who, by favor, is allowed to travel upon a freightcar, contrary to the usual custom of the company, is bound to be satisfied with such facilities and accommodations as usually exist upon freight trains, as railway companies are not to be regarded as common carriers of passengers upon their freight trains, unless they make it an habitual business.3 5. It has been held that natural persons, who assume no pubcompany is bound to fence a station so that the public may not be misled, by seeing a place unfenced, into injuring themselves by passing that way, being the shortest to the station. Where a passenger, in waiting for a train, had gone to a public house for refreshments, the porter showing him the way with his lantern, and hearing the bell ring started out for the station, and mistaking the light of the engine for that of the station crossed an open space direct, and was injured by falling into a hole three feet deep, it was held the company were liable. Burgess v. Great Western Railw., 6 C. B. N. S. 923. Nor is a railway company liable for an injury through the defect of a crane which they had furnished to enable the consignee of heavy goods to unlade them from the cars, although such crane was known to them to be inadequate for the use for which it was furnished, the party injured having been employed to assist the consignee, and thereby lost his life. The case is put upon the ground of want of privity, it being admitted that the company would, in such case, have been liable to the party to whom they furnished the crane, if he or his ordinary servants had sustained injury in its prudent and lawful use. But the party here was called in for the occasion. Blakemore v. The Bristol & Exeter Railw., 8 El. & Bl. 1035. It seems to us the principle of want of privity is here misapplied. This is a clear case of tort and not of contract, and the party injured, although called in for the occasion, was pro hac vice a servant of the borrower, and it was the same as if the borrower himself had been injured. The furnishing the instrument had express and direct reference to its use by the consignee and his servants, extraordinary as well as ordinary. 4 Smith v. London & St. Katherine's Dock Co., Law Rep. 3 C. P. 326. lic duties, are liable, if they suffer their property to remain in a dangerous condition; as that the occupier of land is bound to fence off a hole or area upon it which adjoins or is so close to a highway that it may be dangerous to passers-by if left unguarded.5 *6. The same rule has often been extended to turnpike roads 6 and to plank roads, where the statute made no provision for the liability of the company. And the same rule has been extended generally to railway companies in this country, without question, so far as persons are rightfully in the use of the same. It was held that the owner of a car which was in the use of another party, upon a railway, by contract between him and the company, and suffered an injury by reason of the bad state of the railway, might maintain an action against the company. 8 7. This principle, or an extension of it, has been a good deal discussed in a case in the House of Lords.9 The * plaintiffs, 5 Barnes v. Ward, 2 Carr. & K. 661. Randall v. Cheshire Turnpike Co., 6 N. H. 147; Townshend v. Susquehannah T. Co., 6 Johns. 90. 7 Davis v. Lamoille County Plank Road, 27 Vt. 602. In the case of Gibbs v. Trustees of the Liverpool Docks, 3 H. & N. 164; s. c. 31 Law Times, 22, it was held, in the Exchequer Chamber, reversing the judgment of the Court of Exchequer, that it is the duty of those receiving tolls, whether as trustees or otherwise, not to allow a dock to remain open for public use, when they know that it is in such a state that it cannot be used without danger, citing Parnaby v. Lancaster Canal Co., 11 Ad. & Ell. 223, and distinguishing the case from Metcalfe v. Hetherington, 11 Exch. 257. But it seems the party is never liable in such case, unless he knew or might have known of the defect but for his own neglect of duty. McGinity v. Mayor of New York, 5 Duer, 674. See post, n. 9. 8 Cumberland Valley Railw. v. Hughs, 11 Penn. St. 141. The Mersey Docks & Harbor Board v. Penhallow, Law Rep. 1 Ho. Lds. 93; s. c. 12 Jur. N. S. 571. The recent cases bearing upon the general question of the responsibility of one party for negligence in his own business, which incidentally operates to produce injury to another, and which are here discussed by court or counsel, are the following: Metcalfe v. Hetherington, 5 H. & N. 719; Coe v. Wise, 10 Jur. N. S. 1019; Holliday v. St Leonard's, Shoreditch, 8 Jur. N. S. 79; s. c. 11 C. B. N. S. 192; Pickard v. Smith, 10 C. B. N. S. 470; Southampton & I. Bridge Co. v. The Local Board of Health, 8 Ellis & Bl. 801; Ruck v. Williams, 3 H. & N. 308; Whitehouse v. Fellowes, 10 C. B. N. S. 765; Brownlow v. The Metropolitan Board, 8 Jur. N. S. 891; s. c. 13 C. B. N. S. 768; Jones v. The Mersey Board, 11 Jur. N. S. 746. There is obviously considerable conflict in the decisions bearing upon the general question involved. The result of the discussion in the latest case before the court of last resort in England, supra, seems to be, that the statute is the only a corporation, were empowered by act of parliament to make and maintain docks for the use of the public, and to take tolls from persons using them. The corporation did not, nor did its individual members, derive any emolument from the tolls, but was bound to apply them in maintaining the docks, and in paying a debt contracted in making them. The corporation had the usual powers of appointing water-bailiffs, harbor-masters, and servants, by whose hands the duties of superintendence were carried out. A ship, in entering one of the docks, struck against a bank of mud left at its entrance, of the existence of which the corporation was either aware, or negligently ignorant. The ship and cargo being both injured, separate actions were brought by the respective owners. It was held, affirming the judgment of the Exchequer Chamber,10 that as long as the docks were open for the use of the public, the corporation were bound, whether they received the tolls for private or fiduciary purposes, to take care that the docks were navigable without danger, and consequently that they were liable in damages. 8. It was here held, that in construing statutes creating bodies corporate, such as the plaintiffs, the legislature must be considered, unless the contrary appears, to intend that the corporate body shall have the same liabilities and duties as are imposed by the general law upon private persons doing the same things. 9. A railway company which for an agreed compensation receives and draws over its own line the cars of a connecting road and sufficient warrant for creating any such public work as a railway, harbor, or canal. But the responsibility of those to whom the power is given, depends upon the provisions and construction of the statute; that it is unimportant whether the grantee of the power be a natural or corporate person, the responsibility in either case will be the same; that in the absence of all special statutory provision to the contrary, the builders of such works, and those who operate the same for their own benefit, or that of others, are bound to see that they are constructed with reasonable care and skill, and maintained in the same manner. It was at one time supposed the grantee of such a power might excuse himself from all responsibility by showing good faith and diligence in the discharge of the public duty imposed by the grant of the power. Sutton v. Clarke, 6 Taunt. 29, where Chief Justice Gibbs said: "He has done all that was incumbent on him, having used his best skill and diligence." But it has since been held that this is not enough, and that the grantees of such a power are bound to conduct themselves in a skilful manner, and to do all that any skilful person could reasonably be required to do in such a case. Jones v. Bird, 5 B. & A. 837. 10 3 H. & Norm. 164, 4 Jur. N. S. 636. |