A company, having through its servants the exclusive control and direction of a train, is liable for injuries caused by the negligent management of the train by its servants, or by a defective track, although the engine and cars, or the railroad belong to · another company,2 or the company is using the land of a private owner outside of its location by his consent, or the negligence of another company using the same track contributed to the injury. A company is liable to passengers riding on its trains, although they purchased their tickets of other companies.5

Two companies, by their servants, being both in control of a train, are each liable for an injury caused by negligence in its management. If an injury happens by a collision between the trains of two companies caused by their common negligence, they are liable in a joint action to the injured party.7

A passenger riding in a train, over whose movement he has no control, is not so identified with the company which is operating it as to have imputed to him the negligence of its servants, and can maintain an action against another company for an injury suffered by him in a collision resulting from the concurring negligence of both companies. Nor does the concurring negligence of any third person defeat the injured person's right to recover against a company by whose negligence he has suffered.

A person riding in the carriage of another by invitation, and having no control over its movement, has been held, in case of a collision with a railway train, not to be affected by the contribu

1 Fletcher v. Boston & M. R., 1 Al- Berringer v. Great Eastern R. Co., L. R. len, 9. 4 C. P. Div. 163.

2 Nashville & C. R. Co. v. Carroll, 6 Heisk. 347; Stetler v. Chicago & N. W. R. Co., 46 Wis. 497; Seymour v. Chicago, B., & Q R. Co., 3 Biss. 43; Great Western R. Co. v. Blake, 7 Hurl. & N. 987; John v. Bacon, L. R. 3 C. P. 437.

3 Commonwealth v. Boston & L. R. Co., 126 Mass. 61.

4 Eaton v. Boston & L. R. Co., 11 Allen, 500.

5 Foulkes v. Metropolitan Dist. R. Co., L. R. 5 C. P. Div. 157, L. R. 4 C. P. Div. 267.

6 Nashville & C. R. Co. v. Carroll, 6 Heisk. 347; Vary v. B., C., R., & M. R. Co., 42 Iowa, 246.

7 Colegrove v. New York & N. H. R. Co., 20 N. Y. 492, 6 Duer, 382. But see

8 Chapman v. New Haven R. Co., 19 N. Y. 341; Colegrove v. New York & N. H. R. Co., 20 N. Y. 492, 6 Duer, 382; Barrett v. Third Av. R. Co., 45 N. Y. 628; Bennett v. New Jersey R. & T. Co., 7 Vroom, 225; Danville, L., & N. Turnp. Co. v. Stewart, 2 Met. (Ky.) 119. Contra, Thorogood v. Bryan, 8 C. B. 115; Child v. Hearn, L. R. 9 Exch. 176; Armstrong v. Lancashire & Y. R. Co., L. R. 10 Exch. 47; Lockhart v. Lichtenthaler, 46 Pa. St. 151. See Prideaux v. Mineral Point, 43 Wis. 513, 526.

9 Sheridan v. Brooklyn City & N. R. Co., 36 N. Y. 39; Webster v. Hudson River R. Co., 38 N. Y. 260; Slater v. Mersereau, 64 N. Y. 138, 147.

tory negligence of the driver, if he is a fit person to manage a horse; but, in view of the conflicting authorities, the doctrine is open to further consideration.2 The wife will be affected by her husband's negligence when riding in a carriage of which he is the driver.3

Liability of the Company for Injuries committed by Lessees and others using its Track, and Liability of Lessees. The company cannot, in the absence of special statute authority and exemption, divest itself of responsibility for the torts of persons operating its road by transferring its corporate powers, or leasing the road to them. It cannot by its own act absolve itself from its public obligations without the consent of the legislature. It is liable for injuries to its passengers caused by the negligence of another company which it allows to use its road.5

6

The lease of a railroad under due authority of law effects a transfer of rights and liabilities in its management, so that the corporation owning the railroad is discharged from responsibility for the lessee's torts; but the corporation will remain liable if it continues, notwithstanding the lease, to operate the railroad,” or allows it to be operated in its corporate name,8 or fails to require other companies using the track to take proper precautions where it has the power to require them.9 Lessees who permit another company under contract to use the road are liable for its torts.10 Statutes imposing police and other duties and liabilities on railroad companies are usually construed to apply to com

1 Robinson v. New York Cent. & H. R. R. Co., 66 N. Y. 11, 65 Barb. 146; Dyer v Erie R. Co., 71 N. Y. 228; Cosgrove v. New York Cent. & H. R. R. Co., 13 Hun, 329; Massoth v. Del. & H. C. Co., 64 N. Y. 524.

2 Prideaux v. Mineral Point, 43 Wis. 513; Otis v. Janesville, 47 Wis. 422.

3 Carlisle v. Sheldon, 38 Vt. 440.

4 Nelson v. Vt. & C. R. Co., 26 Vt. 717; York & M. L. R. Co. v. Winans, 17 How. 30; Alexandria & W. R. Co. v. Brown, 17 Wall. 445; Langley v. Boston & M. R., 10 Gray, 103; Ohio & M. R. Co. v. Dunbar, 20 Ill. 623; Chicago & R. I. R. Co. v. Whipple, 22 Ill. 105; Macon & A. R. Co. v. Mayes, 49 Ga. 355; Abbot v. Gloversville & K. Horse R. Co., 21 Albany L. J. 193. See Graham v.

North Eastern R. Co., 18 C. B. N. s. 229; Thompson v. New Orleans & C. R. Co., 10 La. An. 403.

5 Illinois Cent. R. Co. v. Barron, 5 Wall. 90, 1 Biss. 412, 453; McElroy v. Nashua & L. R. Co., 4 Cush. 400.

6 Mahoney v. Atlantic & St. L. R. Co., 63 Me. 68; Ditchett v. Spuyten Duyvil & P. M. R. Co., 67 N. Y. 425, 5 Hun, 165. See Norton v. Wiswall, 26 Barb. 618.

7 Ballou v. Farnum, 9 Allen, 47, 11 Allen, 73; Alexandria & W. R Co. v. Brown, 17 Wall. 445.

8 Bower v. B. & S. W. R. Co., 42 Iowa,

546.

9 Delaware, L., & W. R. Co. v. Salmon, 10 Vroom, 299.

10 Pittsburg, C., & St. L. R. Co. v. Campbell, 86 Ill. 443.

panies and persons who are in possession under contracts with, or by permission of, the company owning the railroad.1

The lessees of a railroad are presumed, by virtue of a lease duly authorized by law, to succeed to the powers and obligations of the lessor corporation, and are therefore liable for the torts of their servants in its management.2 They cannot, it has been held, set up in defence the illegality of the lease.3 Some statutes make the lessor company liable for the negligence of the lessee's servant in the working of the road.*

Statutes which for the public security make certain conditions in the construction and use of the railroad are sometimes held to affect both the corporation owning the road, and other parties using the road by its permission under a lease or contract authorized by law. Thus, if the duty to fence is prescribed, and in consequence of an omission of the duty cattle are killed by the trains of the company which uses the road under lease or contract, such company and also the company owning the railroad are both liable, the former for using the road, and the latter for permitting its use in a defective condition.5 But some statutes are construed to impose liability resulting from the omission of the legal duty only on the company, whether lessor or lessee, which inflicted the injury. The lessee by whose act cattle were killed was held not relieved from liability under a statute by the fact that by the terms of the lease his trains were to be operated in subordination

1 Linfield v. Old Colony R. Co., 10 Cush. 562; Davis v. Providence & W. R. Co., 121 Mass. 134; Stephen v. Smith, 29 Vt. 160; Pierce v. Concord R. Co., 51 N. H. 590; Hall v. Brown, 54 N. H. 495, 58 N. H. 93; Lamphear v. Buckingham, 33 Conn. 237; McCall v. Chamberlain, 13 Wis. 637.

2 Sprague v. Smith, 29 Vt. 421; Mahoney v. Atlantic & St. L. R. Co., 63 Me. 68; Davis v. Providence & W. R. Co., 121 Mass. 134; Pierce v. Concord R. Co., 51 N. H. 590; Hall v. Brown, 54 N. H. 495, 58 N. H. 93; McMillan v. Mich. S. & N. I. R. Co., 16 Mich. 79, 102; Ditchett v. Spuyten Duyvil & P. M. R. Co., 67 N. Y. 425, 5 Hun, 165; Wasmer v. D. L. & W. R. Co., 80 N. Y. 212.

8 McCluer v. Manchester & L. R. Co., 13 Gray, 124; Feital v. Middlesex R. Co., 109 Mass. 398; Sprague v. Smith, 29 Vt. 421, 425.

4 Quested v. Newburyport Horse R. Co., 127 Mass. 204.

5 Whitney v. Atlantic & St. L. R. Co., 44 Me. 362; Stearns v. Atlantic & St L. R. Co., 46 Me. 95; Wyman v. Penobscot & K. R. Co., 46 Me. 162; Webb v. Portland & K. R. Co., 57 Me. 117; Bean v. Atlantic & St. L. R. Co., 63 Me. 293; Ingersoll v. Stockbridge & P. R. Co., 8 Allen, 438; Illinois Cent. R. Co. v. Kanouse, 39 Ill. 272; Toledo, P., & W. R. Co. v. Rumbold, 40 Ill. 143; Nelson v. Vt. & C. R. Co., 26 Vt. 717; Clement v. Canfield, 28 Vt. 302; McGrath v. New York Cent. & H. R. R. Co., 63 N. Y. 522. But see Parker v. Rensselaer & S. R. Co., 16 Barb. 315; Murch v. Concord R. Co., 29 N. H. 935.

6 Stephens v. Davenport & St. P. R. Co., 36 Iowa, 327; Clary v. Iowa Midland R. Co., 37 Iowa, 344.

to time-tables fixed by the lessor, and that the latter was to keep up repairs and fences.1

Mortgagees and Trustees. The company is not liable, at common law or under statutes imposing liability for injuries resulting in death, for the negligence of mortgagees who are operating the road.2 Trustees of bondholders, under a mortgage, who are engaged in operating it, are liable for the torts of their servants; 3 and, in general, when acting under a mortgage made with due authority of law, they succeed to the duties and liabilities of the corporation.4

Receivers. A railroad corporation is not liable in a civil or criminal proceeding for the torts committed in its management, while it is under the exclusive control of receivers appointed by a competent court. The possession of the receiver is the possession of the court.5 The company will, however, remain liable if it retains the entire or partial control of the road, or allows the receiver to use its name. Such receivers, while operating the road only in their official capacity, stand on the footing of public officers, and are not personally liable for the torts of servants whom they employ in their official capacity; but they may be sued by leave of court, and satisfaction obtained for such injuries out of the funds of the company in their hands. The action, when brought against the receivers, will be determined by the same principles as if the corporation were the defendant. Some authorities,

1 Clary v. Iowa Midland R. Co., 37 Iowa, 344.

2 State v. Consolidated European & N. A. R. Co., 67 Me. 479. But see Grand Tower Man. & T. Co. v. Ullman, 89 Ill. 244.

3 Ballou v. Farnum, 9 Allen, 47, 11 Allen, 73; Sprague v. Smith, 29 Vt. 421; Lamphear v. Buckingham, 33 Conn. 237; Rogers v. Wheeler, 43 N. Y. 598; Barter v. Wheeler, 49 N. H. 9.

Daniels v. Hart, 118 Mass. 543.

5 State v. Vt. Cent. R. Co., 30 Vt. 108; Ohio & M. R. Co. v. Davis, 23 Ind. 553 (qualifying Ohio & M. R. Co. v. Fitch, 20 Ind. 498, and McKinney v. Ohio & M. R. Co., 22 Ind. 99). See Hopkins v. Connell, 2 Tenn. Ch. 323; Wabash R. Co. v. Brown, 5 Brad. (Ill.) 590.

6 Alexandria & W. R. Co. v. Brown, 17 Wall. 445.

7 Cardot v. Barney, 63 N. Y. 281; Hopkins v. Connell, 2 Tenn. Ch. 323; Erwin v. Davenport, 9 Heisk. 44. The possession of the receiver is not necessarily a valid defence at law, and the court which appointed him may in its discretion allow the action to proceed. Hills v. Parker, 111 Mass. 508.

Meara v. Holbrook, 20 Ohio St. 137; Klein v. Jewett, 11 C. E. Green, 474; Jordan v. Wells, 3 Woods, 527; Kennedy v. Indianapolis & C. R. Co. (U. S. C. C, S. D. Ohio), 10 Reporter, 359, 11 Cent. L. J. 89.

9 Meara v. Holbrook, 20 Ohio St. 137; Potter v. Bunnell, 20 Ohio St. 150; Klein v. Jewett, 11 C. E. Green, 474.

however, impose on them a full personal liability as common carriers when they are doing business as such.1

Liability incurred by a Consolidation. A corporation which acquires by a purchase or consolidation the roads of other companies, may, by force of the statute which authorizes the transfer, become liable for the antecedent torts of such companies.2

Liability for Contractors and their Servants. The company is, in general, responsible for the torts of only such persons as sustain towards it the relation of agents or servants. The relation of master and servant does not arise where the employee, in the exercise of an independent employment, and not being under the immediate direction of the employer, is acting in pursuance of an entire contract, by which he has agreed to execute a job or piece of work on certain terms. When the work is so let out, the employer is not liable for the acts of the contractor, or of his sub-contractors, or of the servants of either, the persons thus employed not being in law his servants. The test which determines whether the relation is that of master and servant, or of contractor and contractee, is, whether the employer retains the power of selecting, directing, and discharging the workmen, the retention of which power makes him responsible as a master, and the surrender of which relieves him of liability as such.3

This doctrine (overruling Bush v. Steinman (1799), 1 Bos. & Pul. 404) is well established in England. Thus, where the company had let out a portion of its line for construction to a contractor, and workmen employed by him in constructing a bridge over a public highway negligently caused the death of a person passing along the highway, by allowing a stone to fall upon him, the company was held not liable, notwithstanding

1 Blumenthal v. Brainerd, 38 Vt. 402; Newell v. Smith, 49 Vt. 255; Paige v. Smith, 99 Mass. 395; Kinney v. Crocker, 18 Wis. 74; Allen v. Central R. Co., 42 Iowa, 683; Wabash R. Co. v. Brown, 5 Brad. (Ill.) 590, 595; Kain v. Smith, 80 N. Y. 458.

2 New Bedford R. Co. v. Old Colony R. Co., 120 Mass. 397; Chicago, R. I., & P. R. Co. v. Moffitt, 75 Ill. 524; Coggin v. Central R. Co., 62 Ga. 685.

3 Brackett v. Lubke, 4 Allen, 138; Forsyth v. Hooper, 11 Allen, 419.

4 Knight v. Fox, 5 Exch. 721; Overton v. Freeman, 11 C. B. 867; Peachey v. Rowland, 13 C. B. 182; Rourke v. White Moss Colliery Co., L. R. 2 C. P. Div. 205; Pearson v. Cox, L. R. 2 C. P. Div. 369; Richmond v. Russell, 11 Cas. Ct. Session, 2d series (Scotch), 1035, 12 Cas. Ct. Session, 2d series (Scotch), 887; Gilbert v. Halpin, 3 Ir. Jur. N. s. 300.