McElroy v. Nashua & Lowell Railroad

Shaw, C. J. The court are of opinion, upon the facts agreed, that the defendants are liable to the plaintiffs for the damage sustained by the wife, whilst travelling in their cars. As passenger carriers, the defendants were bound to the most exact care and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of passengers. The wife having contracted with the defendants and paid "fare to them, the plaintiffs had a right to look to them, in the first instance, for the use of all necessary care and skill. The switch in question, in the careless or negligent management of which the damage occurred, was a part of the defendants’ road, over which they must necessarily carry all their passengers ; and although provided for and attended by a servant of the Concord Railroad Corporation, and at their expense, yet it was still a part of the Nashua and Lowell railroad, and it was within the scope of their duty to see that the switch was rightly constructed, attended and managed, before they were justified in carrying [403] passengers over it. Had the action been, in form, on the implied contract of the defendants, in undertaking to carry a passenger, to have a safe road, and apply and use all necessary care and skill, the liability of the defendants might have been more clear and manifest; but the duty is the same, and in most cases of this kind of carelessness, negligence or want of due skill, in the performance of duty undertaken to be done for hire and reward, it is at the election of the plaintiff to declare in assumpsit, and rely on the promise, or to declare in tort, and rest on the breach of duty. Whether the plaintiffs might have maintained an action on the case against the Concord Railroad Corporation for the negligence of their servant, or whether the defendants may have a remedy over against the Concord Railroad Corporation, by the terms of the statute under which the latter were allowed to come on to the defendants’ road, or by the terms of their contract, we give no opinion. Waland v. Elkins, 1 Stark. R. 272. Judgment on the verdict for the plaintiffs.