Brow v. Boston & Albany Railroad

Field, C. J. It would have been competent for the jury to find, on the facts recited in the exceptions, that there was a contract between the railroads that the Boston and Albany Railroad Company should furnish a gateman, who should raise and lower the gates for each of the railroads at the crossing, and that the gateman actually employed was employed by the Boston and Albany Railroad Company for this purpose. It is argued that such a contract would be ultra vires. But when the tracks of different railroad corporations are on one road-bed, and are crossed at grade by a highway, and gates are required, it is not necessary that each railroad company should maintain gates, and it might be a source of danger if each railroad company maintained separate gates along the line of its tracks. One set of gates across the highway and outside the line of all the tracks might be the best practicable means of protecting the public from injury." We have no doubt, that when the tracks of different railroads are laid so near to each other across a highway that only one set of gates is required, the railroad companies [402] can enter into a contract with each other that the gates shall be erected at the common expense, and a gateman be employed as a common agent, or one company can agree with the others that it will erect the gates and employ a gateman for the benefit of all the roads. It is therefore unnecessary to consider whether, if a corporation undertakes to do business which is beyond its corporate powers, it is liable to third persons for the negligence of its agents in the performance of this business. See Hutchinson v. Western & Atlantic Railroad, 6 Heisk. 634. Undoubtedly a ease can be stated in which a gateman would he regarded as the separate agent of each of the railroads. We think, however, that one inference that could be drawn from the facts stated in the exceptions is that the Boston and Albany Railroad Company undertook the management of the gates for the benefit of all the railroads. The station of the gateman was alongside the tracks of that road, and it employed and paid him. The other roads paid to the Boston and Albany a part of his wages, but it might be inferred from the facts stated that the Boston and Albany Railroad Company exercised the exclusive right of selecting the gateman and of controlling and discharging him, and that it was in a legal sense his master. See Swainson v. Northeastern Railway, 3 Ex. D. 341. It does not necessarily follow from this that the New York, Providence, and Boston Railroad Company may not also be liable, either on the ground that it cannot delegate the performance of the duty of properly closing the gates to another person or corporation so as to escape liability for injuries on its road occasioned by the negligence of the gateman, or on the ground that the jury might find that it, jointly with the other roads, employed a common agent, for whose torts in the performance of his duty each and all were responsible, but these questions are not involved in the decision of this case. Exceptions sustained.