Murray v. Lehigh Valley Railroad, 66 Conn. 512

Murray v. Lehigh Valley Railroad

66 Conn. 512 | Conn. | 1895

Lead Opinion

Andeews, C. J.

The controlling question presented by the appeal in this case, arises on the charge of the court to the jury. That being disposed of, the other assignments of error become unimportant. And in the charge that question is narrowed to this: Was the court correct in saying to the jury that the servants of the Central Railroad Company while operating its trains on that portion of its track used in common by that company and this defendant, might, for the purposes of this case, be regarded as the servants of this defendant? A recurrence to the duties which the law imposes on every railroad company as a carrier of passengers, will serve to make the answer to this question more distinct.

A railroad corporation, by the contract for a passage over its road, assumes the obligation to exercise the highest practicable degree of human skill to carry the passenger in safety, and undertakes absolutely to protect him against any injury or willful misconduct of its servants in the performance of its contract; and the obligation in these respects continues until the contract is fully performed. Dwinelle v. R. R. Co., 120 N. Y., 117. Every carrier of passengers for hire — although not like a common carrier of goods, an insurer against everything but the act of God and the public enemies — is bound to use the utmost care which is consistent with the nature of the business, to guard the passenger against all dangers from whatever source arising, which may reasonably and naturally *519be expected to occur, in view of all the circumstances and of the number and character of the persons with whom the passenger will be brought in contact. The carrier must provide safe, sufficient and suitable vehicles for transportation, and must provide such servants for the management of the same, and make all such reasonable arrangements therefor, as the highest care of a prudent man would suggest as necessary to a safe passage. Hall v. Conn. River Steamboat Co., 13 Conn., 319; Fuller et Ux. v. Naugatuck R. R., 21 id., 557; Flint v. Nor. & N. Y. Trans. Co., 34 id., 554; Simmons v. Steamboat Co., 87 Mass., 361; Palmeri v. M. Ry. Co., 133 N. Y., 261; Pendleton v. Kingsley, 3 Clif., 416.

This duty is imposed by law; and this measure for its performance rests upon a railroad corporation to its full extent. A railroad corporation is a carrier of passengers by virtue of the franchise granted to it by its charter; a franchise intended to be used for the public good. By asking for and receiving the franchise, the corporation comes under the obligation to answer in damages to every one who may be injured by any negligence in the use of the privilege it' has so received. And public policy will not permit the corporation to relieve itself from this obligation by any contract with others. 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. It is held to the exercise of due care for the safety of all persons, while exercising its franchise, whether on its own road or that of another company. This duty was imposed by law when it received its charter, and this duty holds good at all times and in all places. If the company operates its trains over the road of another company, 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. If a railroad company permits another company to run its trains upon its track, it is liable for any want of care of its *520lessee, and may be sued therefor, the same as though the trains were its own. 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. Driscoll v. Nor. & Wor. R. R. Co., 65 Conn., 230; Lakin v. Willamette Valley & Coast R. R. Co., 13 Oregon, 436; Va. Midland Ry. Co. v. Washington, 86 Va., 629; Whitney v. A. & St. Lawrence R. R. Co., 44 Me., 362; Stearns v. Same, 46 id., 95, 116; Wyman v. R. R. Co., ibid., 162; Nugent v. R. R. Co., 80 id., 62; Nelson v. Vermont & Canada R. R. Co., 26 Vt., 717, 721; Clement v. Canfield, 28 id.; 302; McElroy v. R. R. Co., 4 Cush., 400; Railroad Co. v. Barron, 5 Wall., 90, 104. And on the other hand, if one railroad company runs its trains over a portion of the road of another company, pursuant to a contract whereby it is agreed that its trains, while on such leased road, shall be under the control and direction of the servants of the lessor company, then the servants of the lessor company at such place and for the time being, are the servants of the lessee company, and it will be liable for any injury to a passenger caused by the negligent act of such servant, as though he was its own employee.

The case of the Wabash, St. L. & P. Ry. Co. v. Peyton, 106 Ill., 534, 540, is an application of'-' this rule. That was a case almost exactly like the one now before us. That case was an appeal. In the lower court the appellee had recovered judgment. It was shown that the appellant, by a lease of a portion of the road of the Chicago & Western Indiana R. R. Co., was permitted to run its trains over a portion of the track of the latter company near to a station, to and from which its trains ran and departed. By the terms of the lease the lessor company had the control of the passenger train of the appellant while on that portion of track, and its servants directed and controlled the trains of the appellant in coming to and going from that station. The appellee was injured

*521while a passenger on a train of the appellant, by the negligence of the yard master of the lessor company. The court said: “The controlling question of the case, * * * is whether the appellant is freed from liability by placing, by the lease or agreement, its employés and trains, at the place where the injury occurred, under the control of the road master of the other road. Appellant did so as a matter of interest or choice, and not from overpowering necessity. When the charter was granted the corporation became a common carrier of persons and property, and the law imposed the duty of common carrier, with all the liabilities incident to the occupation, and the responsibility was assumed by the corporation, and imposed on it by law. Nor can the corporation exonerate itself from the duty and responsibility by contract with others, nor in anywise escape or free itself from the liability, unless released by the General Assembly. Appellant voluntarily placed its engine and cars, at that place, under the control and direction of the employés of the other road, and for the time being, and for that purpose, the roadmaster of the other road became the servant of the appellant. The engine and train belonged to the appellant; the engine-driver, the fireman, the conductor and the brakeman on board of the train were its servants, under its control, and the yardmaster, under the agreement, pro hae vice, for the time and place, was its servant. Had the agreement not been made he would not have controlled the starting of the -train. Appellant,' by the agreement, authorized him to act as its yardmaster, and to act for it at that time and place, and it must be held responsible for his acts. The company cannot escape by saying he was employed and controlled by the other road. He was, as we have seen, the servant of the appellant, to the full extent he acted, in this case.” Oil Creek Allegheny River Ry. Co. v. Keighron, 74 Pa. St., 316; Vary v. B., C. R. & M. R. Co., 42 Iowa, 246; Laugher v. Pointer, 5 B. & C. 547, 559; Eaton v. Boston & Lowell R. R. Co., 11 Allen, 500; Abbott v. Horse R. R. Co., 80 N. Y., 27; St. Louis, W. & W. Ry. Co. v. Curl, 28 Kan., 622; Balsbey *522v. St. L., Alton, etc., R,. R. Co., 119 Ill., 68; Eureka Springs Ry. Co. v. Timmons, 51 Ark., 459.

The plaintiff was a passenger on the railroad of the defendant from Allentown to Jersey City. He was entitled to be carried in safety, and it was the duty of the defendant to so carry him the entire journey, whether it carried him over a track owned by itself or over a track hired of another. If the defendant for its own convenience chose to carry him a part of the journey over a hired track, it was its duty to make the track hired as safe as the track owned. If by reason of being carried on a hired track the plaintiff was exposed to a danger from which he would have been free had the track been owned by the defendant, and suffered injury therefrom, then for such injury the defendant is liable to him. Pierce on Railroads, 288.

The ease shows that in the use of the portion of track owned by the Central Railroad Company, this defendant was bound by its agreement with that company to obey the orders and signals given by the servants of that company. The case shows then, that to the extent of that agreement and for the purposes included in it, this defendant had, by the terms of that agreement, made the servants of that company its own servants. And as the case further shows that the train on which the plaintiff was a passenger, was upon this portion of track, and was being operated in obedience to the orders of those persons who, by the agreement, were the servants of this defendant, we think the charge was fully justified.

The verdict having established that the danger of collision to which the train of the defendant was exposed, was caused by the negligence of the defendant’s own servants, the several rulings in respect to the admission of testimony become immaterial. This fact being settled, it matters not whether the men on the trains were friendly or unfriendly to one another, nor whether the train of the defendant was behind time, or the train of the Central Company ahead of time, nor what any person on the rear train may have said, or omitted to say.

The motion for a new trial on the ground that the verdict is against the evidence must be denied. In considering the *523evidence the jury was bound to accept the charge of the court as correct. And in the light of the charge there was abundant evidence to support the verdict. Indeed, the jury could not well have reached a different result.

There is no error. A new trial is denied.

In this opinion Fenn and Hamersley, Js., concurred.

Dissenting Opinion

Baldwin, J.

(dissenting). If the apparent danger of collision, which induced the plaintiff to jump from the car, was due to the negligence of the Lehigh Valley Railroad Company or its servants, there was a good cause of action against it; but there was none, in my opinion, if the accident was due to .the willful act of a servant of the Central Railroad Company, outside of the scope of his employment. The Lehigh Valley Railroad Company claimed, upon the trial, that it was due to such a willful act, on the part of those in control of the locomotive of the Central Railroad Company. In support of this claim it offered testimony from its division superintendent, that on the day in question there was a strike on its road, and its trains were being operated by non-union men, while the Central Railroad trains were being run by union men; that there was ill feeling on the part of these union men towards the non-union men; that in consequence thereof the accident occurred which resulted in the damage to the plaintiff for which the suit was brought; and that a certain remark was heard by John M. Robinson, the rear brakeman of the car on which the plaintiff was, from a person on the engine of the Central Railroad Company, “ at the time of the approach and stopping of said engine, threatening a collision.” The exclusion of all this testimony constitutes, in my opinion, sufficient ground for maintaining the appeal.

The finding shows that the plaintiffs evidence tended to prove that a train of the Central Railroad, upon a dark and foggy night, was pushed up within ten or fifteen feet of the car in which he was riding, and was apparently about to crash into it, when he jumped off to save his life.

The Lehigh Valley Railroad Company, in explanation of *524this dangerously near approach to its train of the train behind it, offered to show that it occurred in consequence of unfriendly feeling on the part of those controlling the Central Railroad train towards those controlling the train ahead of it. Such a consequence, from such a cause, could only have been occasioned by a willful and wrongful abuse of the power intrusted by the Central Railroad Company to its servants, for managing the course and speed of the train in question. If the union men on the Central Railroad engine were apparently intending to use it as a catapult, or were threatening to do so, in order to intimidate the non-union men in charge of the Lehigh Valley Railroad train, it was a malicious tort, so far outside the scope of their employment as to exonerate even their own employer from any liability for such damage as might be occasioned. Crocker v. New London, Willimantic & Palmer R. R. Co., 24 Conn., 249, 265. It would be “ an act of positive and designed injury not done with a view to the master’s service, or for the purpose of executing his orders.” Pierce on Railroads, 279. “If the servant, under guise and cover of executing his master’s orders, and exerting the authority conferred upon him, willfully and designedly, for the purpose of accomplishing his own independent, malicious, or wicked purpose, does an injury, then the master is not liable.” Cohen v. Dry Dock, etc., Railroad Co., 69 N. Y., 170, 174.

The trial court has found that “ no testimony was offered to prove that any person in control of the Central Railroad train was, in fact, actuated in this affair, by any feeling of hostility, or did any intentional act which sprung from that motive.” The evidence, however, was at the same time certified up at length by the court, for our consideration upon the motion for a new trial on the ground that the verdict was against the evidence. In the evidence thus certified, appears that of John M. Robinson, the rear brakeman of the car upon which the plaintiff was riding. He testified that a stop signal was given by the Lehigh Valley Railroad train, the customary answer to which was two whistles; that the engineer of the Central Railroad train did not give this *525answer, but continued right on, and, as he neared them, blew a long, shrill whistle; and that some one on the latter’s engine, just as it finally slackened speed, a short distance behind the rear car of the train ahead, shouted to the witness, “ you scab sons of bitches ”; “ scab ” being a word of reproach used by union men in referring to non-union men. The court ruled that these words might have been a mere expression of vexation at finding the Lehigh Valley train on the track, and behind time; and struck out the testimony regarding it.

The only reference to the particular nature of this testimony in the finding prepared for the purposes of the appeal, is that which I have previously mentioned; and whether in that finding the words “ threatening a collision ” can be understood as characterizing the remark which was excluded, is quite doubtful. It might with perhaps more propriety be read as referring to the engine, or the approach and stopping of the engine. Be this as it may, both parties have argued this exception as if the remark in question had been duly incorporated in the finding, and it would seem to me a sacrifice of substance to form to disregard it, in view of the passage which I have quoted from the finding, to the effect that no testimony was offered to prove any intentional act of malice on the part of the union men in charge of the Central Railroad train. The reason given by the trial court for ordering Robinson’s testimony about this remark to be stricken out, shows that that order was based on the opinion that as the words used might have indicated mere vexation, they ought not to be allowed to go to the jury as evidence of hostility or hostile acts. In my judgment this ruling proceeded upon a mistaken view of the law which, under the special circumstances of this case, may and should be taken into account by us in determining the true meaning and effect of the finding. Styles v. Tyler, 64 Conn., 432, 439. What this language, heard by Robinson, meant, what disposition it evinced, who said it, and what light it threw on the accompanying acts, were all questions, it seems to me, proper for the consideration of the jury. Ritchie v. Waller, 63 Conn., 155.

*526The act of running one train almost into another, which was ahead of it on the same track, in disregard of the customary signals, was one of an unusual nature. The circumstances attendant on the strike seem to offer a possible, if not a probable explanation. Coupled with the insulting and indecent remark hurled after the receding train, they might well have led the jury to conclude that the threatened collision was in the nature of a wanton and malicious assault by servants of the Central Railroad Company, not in their master’s service, nor in the execution of any authority which had been confided to them. An act of doubtful meaning can often be explained by the word that went with it, or the circumstances under which it was done. I think that the passage above quoted from the finding, to the effect that no evidence was offered of hostile acts, should be read as if it stated that none was offered unless the testimony of the division superintendent and the rear brakeman could be considered such; and therefore that a new trial should be granted for errors in the exclusion of that testimony.

I concur with the court in the opinion that under the testimony admitted and instructions given, the verdict was not against the evidence in the cause. I dissent from the opinion, so far as it holds that the verdict cures any errors in excluding testimony. The jury, upon the evidence before them, were called upon to consider no other question than that as to whether the conduct of the Lehigh Yalley Railroad Co., or the acts of those in charge of the second train were negligent, or not. They have found these acts to have been negligent; but had they had the excluded evidence before them, they might have attributed to them a different character.

The jury were, in effect, told that for the purposes of this ease they might consider the servants of the Central Railroad Company, in charge of the rear train, as the servants of the Lehigh Yalley Railroad Company. I think this was not a correct statement of the law, in view of the claim made by the latter company, that the plaintiff’s injury was due to the willful and wrongful acts of servants of the other company, *527done wholly outside the scope of their duty; and, furthermore, that it would not have been, had it been undisputed that the injury was due to the negligence of those in charge of the rear train.

The Lehigh Valley Railroad Company was permitted, by contract, to run its trains over a part of the Central Railroad Company’s road, subject to the rules and orders of the latter company; and this is all the record discloses as to the nature of that contract.

Under such an arrangement, and so far as the plaintiff was concerned, this part of the Central Railroad track should undoubtedly be considered, pro hao vice, the track of the Lehigh Valley Railroad; and the servants of the Central Railroad Company, of whose services the Lehigh Valley Railroad Company actually or necessarily made use, in running its trains over it, were, pro Tiac vice, the servants of the latter. But, in my opinion, those servants of the Central Railroad Company, of whose services the Lehigh Valley Railroad Company did not make use for this purpose, either actually or necessarily, were not in law, and as a matter of course, to be regarded as its servants. For example, the Lehigh Valley Railroad Company may be said to have necessarily made use of the track-repairers of the Central Railroad Company to keep this part of the track in good order; and their negligence in this matter would be the negligence of the Lehigh Valley Railroad Company, because they are for that purpose, pro hac vice, its servants. So too, for a similar reason, the man at the signal tower might properly be regarded as the servant of the Lehigh Valley Railroad Company, because it necessarily made use of his services in running its trains upon this portion of the track. It' may be also true that in the management of all the necessary switches and signals and other things of a like nature, appurtenant to this common track, the servants of the Central Railroad Company, who performed these duties, were the servants of both companies, because they were engaged in doing things necessary to the running of the trains of both over the same road-bed.

The Lehigh Valley Railroad Companjr might be held re*528sponsible for any injuries resulting from a failure to make due provision in the contract, under which it made use of the track in question, for the admission of trains upon it only at proper intervals, and under proper conditions for securing the safety of the passengers it might carry. But the servants of each- company, who only managed the trains of each, and who performed no sort of service for the other, were not, I think, in law the servants of that other, but remained throughout the servants only of the company whose trains they managed.

In the present case, the Lehigh Valley Railroad Company had no occasion for, and made no use whatever of, the services of the men in charge of this rear train, and they had no connection of any sort with the running of its trains.

According to the principles laid down in the cases of Wright v. Midland Ry. Co., L. R. 8 Ex,, 137, and in Sprague v. Smith, 29 Vt., 421, 426, I think the court below should have instructed the jury, substantially as requested, that if the injury was wholly due to the negligence of those in charge of the rear train, the Lehigh Valley Railroad Company was not liable.

I therefore dissent also from the opinion of the court as to the propriety of the charge to the jury.

In this opinion Torrance, J. concurred.