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 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 the 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 engines 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 road-master of the other road became the servant of appellant. The engine and train belonged to appellant; the engine-driver, the fireman, the conductor and brakeman on board of the train were its servants, under its control, and the yard-master, under the agreement, pro hac 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 yard-master, 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 appellant, to the full extent he acted, in this case.

Again, this company was held to care for the safety of all persons whilst exercising its franchises, whether on its road or the road of another. This was the duty imposed by law when it received its franchises, and the duty inheres whenever and wherever the company exercises them. This is a duty that attaches at all times, and at all places where the company operates its road. It was, then, the duty of appellant, by its servants, to see and know that the track was in a good and safe condition-not only to the passengers, but to those rightfully near to and liable to be injured by its being operated when in an unsafe condition. By slight attention this danger could have been seen and avoided. Appellant, by the contract, for the purpose of running into and out of the depot, made this portion of the track its own, and must be responsible for all injuries resulting from negligence in keeping or permitting it to be in an unsafe condition. Had this part of the road being used by appellant in fact belonged to it, and been operated by its servants, no one, we apprehend, would claim appellant would not be liable. Then, when it acquired the right to so use the road, and its use to be controlled by the road-master, and obstructed by him, or those under him, appellant must be equally liable. By the contract appellant yielded, instead of retaining, the necessary control to secure the safety of other persons. Moreover, the ser

vants of appellant in charge of the engine were not prohibited from seeing and removing the obstruction, and it was their duty to have seen and remove it.

The law thus rendering appellant liable, it becomes a fruitless question, in this case, to inquire whether the Chicago & Western Indiana Railroad Company was liable. If it was, then appellee had her option to sue either alone, and, it may be, both, as tort feasors. But she was not required, by .any rule of which we are aware, to sue either one instead of the other, or to sue both jointly. The court below instructed in accordance with the views we have expressed, and refused to instruct in accordance with the views contended for by counsel for appellant, and the giving and the refusing of the instructions was not erroneous.

On the entire record we perceive no error, and the judgment of the appellate court is affirmed.

Judgment affirmed.

Liability for Torts When One Company Uses Track of Another.Where a railroad company by contract uses the track of another company, it is in general liable for all injuries occasioned while using that track, as though it were his own Murch v. Concord R. Corp., 9 Fost. (N. H.) 124; Stetler v. Chicago & N. W. R. Co., 49 Wis. 609.

Relative Liability of Lessor and Lessee.-Where one railroad is leased and operated by another exclusively, the company lessee is alone responsible for injuries committed in the course of operating the road. McMillan v. Michigan S. & N. I. R. R. Co.. 16 Mich. 79, 102; Sprague v. Smith, 29 Vt. 421; McClure v. Manchester & L. R. R. Co., 13 Gray, 124; Festal v. Middlesex R. Co., 109 Mass. 398; Ditchett v. Spuyten Duyvil & P. M. R. Co., 67 N. Y., 425; Pittsburgh, C. & St. L. R. Co. v. Campbell, 86 Ill. 443; Wasmer v. Delaware, L. & W. R. Co., 80 N. Y. 212; s. c. 1 Am & Eng. R. R. Cas. 122; Fontaine v. Southern Pacific R. Co., 1 Am. & Eng. R. R. Cas. 159. Dickson v. Chicago, R. I. & P. R. Co,, 2 Am. & Eng. R. R. Cas. 538; Pittsburgh, etc., R. Co. v. Hunt, 2 Am. & Eng. R. Cas. 649; Central R. R. Co. v. Brinson, 8 Am. & Eng. R. R. Cas. 343; Atchison, T. & S. F. R. Co. v. Cruzen, 15 Am. & Eng. R. R. Cas. 515.

Sta utory Provisions.--Sometimes the relative liability of the lessor and lessee is settled by statute. Stephens v. Davenport & St. P. R. Co., 36 Iowa, 327; Clary v. Iowa Midland R. Co., 37 Iowa, 344; Guested v. Newburyport Horse R. Co., 127 Mass. 204.

MCGRATH, Adm'x,

V.

NEW YORK & NEW ENGLAND RAILROAD CO.

(Advance Case, Massachusetts, January 26, 1884.)

A railroad workman after finishing his work was told by his foreman that there were twenty minutes before the next train, which was understood to mean the next regular train. Whereupon the workmen with others mounted a hand-car to go to the next station, was overtaken by a special train and was killed. No carelessness was attributable to the special train,

after the hand-car was discovered on the track; no flags were sent out by the hand-car men, and a rule of the railroad company known to the handcar men stated that they may expect a train in either direction without signals being shown for it."

66

In an action brought to recover damages for the death:

Held that the action could not be maintained as the workmen assumed the risk of riding on the hand-car by voluntarily and without objection mounting it when no flags had been sent out, and also the risk of any omission on the company's part to signal the special train, by mounting the car with full knowledge of the above rule.

DEFENDANT's petition for a new trial.

This action was trespass on the case charging the defendant with negligence which resulted in the death of the plaintiff's intestate. He was a workman employed by the defendant and was riding with other workmen on a hand-car from Providence to Olneyville, when the car was overtaken by a special train from Providence, and he was killed. The accident happened November 27, 1879, as the workmen were returning home from their work.

Number twenty-four of the company's rules is:

"Section foremen are directed to give close attention to the telegraph wires, unite them when broken, reset poles when down or in danger of falling, and render any required assistance to the telegraph repairer. They may expect a train in either direction without signals being shown for it, and will use every precaution to insure safety."

The other facts necessary to make the petition intelligible are stated in the opinion of the court.

The plaintiff recovered a verdict of $2,900, and the defendant filed this petition.

Chas. E. Gorman, for plaintiff.

Wm. P. Sheffield and Frank S. Arnold, for defendant.

PER CURIAM. We think the verdict is against the evidence and the weight thereof. The evidence shows that the intestate was acquainted with rule twenty-four and consequently knew the risk he was running from special trains by riding on the hand-car. It does not appear that he rode there by any positive command or coercion from his superior. The testimony on that point was this: After the work of the day was done, the foreman said to him and others of his gang that there were twenty minutes before the next train, meaning, as was well understood, the next regular train, and therefore time to reach the station before it came along; thereupon the men mounted the car without objection, the intestate as willingly as the others all of them, for anything that ap pears, being ready to take the risk without the delay of sending out red flags, which would have protected them, apparently because they were in a hurry to get home, as it was thanksgiving day. There was no carelessness in the management of the special train

after the hand-car was discovered. The accident may be attributed to two causes, to-wit: neglect on the part of the hand-car to send out the red flags or to take other sufficient precautions, and an omission on the part of the company to signal the coming of the special train. The defendant accepted both risks; the first by riding on the hand-car willingly and without objections, knowing that the flags had not been sent nor other precautions taken; the second, by riding there knowing of rule twenty-four which permitted the despatch of special trains without signaling in advance. By continuing in the service after being informed of the rule he accepted the risk of such unsignaled special trains as one of the risks of the service.

Petition granted.

See Pennsylvania R. R. Co. v. Wachter, and note, 15 Am. & Eng. R. R. Cas. 187.

ILLINOIS CENTRAL RAILROAD COMPANY

v.

FRELKA.

(110 Illinois Reports, 498.)

Where two railroad companies have by agreement a joint occupancy of depot grounds, in which their respective tracks are so situated and used that the servants of the two companies must necessarily, in the proper discharge of their duties, pass over each other's tracks, each company will owe the same duty to the servants of the other company in the matter of observing proper care for their safety when crossing its traeks in the regulor discharge of their duties, that it does to its own servants when crossing the same tracks.

Where the servants of two railroad companies occupying the same depot grounds with their respective tracks, are required in the performance of their duties, to pass over the tracks of both companies, a sign erected upon the grounds warning all persons to keep off the tracks, and informing them if they went upon them it would be at their peril, would not be regarded as applying to the servants of either company.

On an appeal from a judgment of the appellate court affirming the judgment of the trial court in favor of the plaintiff in an action to recover damages for a personal injury, occasioned by the alleged negligence of the defendant, it was assigned for error that the damages were excessive; but it was held, that was a question for the appellate court-not this.

APPEAL from the Appellate Court for the first district-heard in that court on appeal from the Circuit Court of Cook county. The two instructions, numbered one and nine, asked in behalf of the defendant below, and refused by the trial court, are as follows:

"1. The court instructs the jury that upon all the evidence in this case, and under the law that fixes the rights and prescribes

the duties of the parties thereto, the plaintiff has no right to recover, and it is the duty of the jury to find the defendant not guilty."

"9. If the jury believe from the evidence that there were notices, in the English language, on the grounds or yards of the defendant at its depot in Chicago, at the time and before the accident complained of, warning or notifying persons not to go upon its tracks or grounds in said yards, or in words to that effect, then the court instructs the jury that the plaintiff was bound to observe said notices, and that this is the law, even if the plaintiff could not read the language in which said notices were written or painted."

William Barge, for the appellant.
Brandt & Hoffmann, for appeilee.

MÜLKEY, J.-The present appeal brings before us for review a judgment of the appellate court for the first district, affirming a judgment of the Circuit Court of Cook county, for $5,000, lately recovered in that court in an action on the case, brought by Michael Frelka, the appellee, against the Illinois Central Railroad Company, the appellant, on account of personal injuries alleged to have been caused by the negligence of the company in operating a switch engine.

The evidence in the case tends to prove that appellee, on the morning of the 18th of January, 1879, at the hour of six o'clock, or perhaps a little before, entered by way of Randolph street, the depot grounds of the appellant and the Michigan Central Railroad Company, lying immediately south of the passenger depot of the two companies, situated on the west side of Lake Michigan, in the city of Chicago, and that while attempting to cross the tracks of the defendant to reach a caboose standing on the tracks of the Michigan Central Company, he was struck, knocked down and dragged for a considerable distance by a switch engine of the appellant, breaking and crushing the ankle and thigh bones of his right leg, and otherwise seriously injuring him, whereby he was permanently disabled, so that he is now unable to get about, except on crutches. The depot grounds where the accident happened, were, at the time it occurred and for many years before that time had been, in the joint occupancy, use and control of the appellant and the Michigan Central Company, though each company had and operated its own tracks; but in doing so, the grounds in question, for the purpose of passing and repassing in the discharge of their duties, were open alike to the servants and employés of both companies. The greater portion of these grounds lie between Randolph street on the north, and Monroe street on the south, if extended eastwardly, the two streets being about 1,250 feet apart. The employés of the two companies living in the city, generally