Sawyer v. Rutland & Burlington Railroad

The opinion of the court was delivered, at the circuit session, in September, by Isham, J. We perceive no objections to the plaintiff’s recovery in this case on the ground of variance, and we think the defendants-are directly liable to the plaintiff for the injury he has sustained-The gist of this action does not arise from any contract between the; parties, but from the non-observance of a duty imposed by Iaw.Tn such case, it is necessary to state in the declaration the facts from which the law creates the duty, the non-observance of which is the ground of complaint. The material averments only are put in issue, and though the plaintiff may fail in the proof of many particulars as they are stated, yet if so much is proved as leaves him a good cause of action, he is entitled to recover. Winn v.White, 2 Black. 840. Max v. Roberts, 12 East. 89. 1 Chitty on Plea, 371. The declaration contains the averment of those facts which were proved on the trial of the case, that the defendants were incorporated with power to construct a railroad for the transportation of persons and property, that the charter was accepted and the road made, that the defendants were in the use of the road, and that the person having charge of the switch was in their employment and under their direction and control. It was also in proof as it is in substance averred, that under an agreement with the defendants, the Rutland & Washington Railroad Company were permitted to run their trains upon this road to and from Mill Tillage and the Rutland depot, and that while the plaintiff was conducting a train over the road the engine and ears were diverted from the track by the negligence of the defendants’ servant placed in charge of the-switch, and the injury sustained for which this action is brought-To this extent, there is no variance- between- the substance of theaverments and the- proof- The fact that a contract of that kind was made between the railroad companies becomes material only as showing that the plaintiff wa,s lawfully on the road at the time-he was injured. That was the object and is the substance of the averment, and all that is material or necessary to be proved. The Comp. Stat. 204, § 66, 67, authorises such an- agreement to be made, and forbids the running of any engine or other power on any railroad in this state without the consent of the corporation to-which the road belongs. If the consent or license of the defendants was given for the use of the road on that occasion, the plaintiff. — 377 — «m3 the train in his charge, and all persons connected with it, were lawfully on the road. It is immaterial whether the contract between, the different railroad companies was made with or without a consideration, or whether it could at any time have been revoked or not. The duties imposed on the defendants by the use of their road does not depend on such considerations. The contract was sufficient as a licence or consent of the defendants for the plaintiff to pass over the road on that occasion, and so long as it remained unrevoked, the plaintiff was lawfully upon the road. Under such circumstances, it was the duty of the defendants, as it is averred in the declaration, to keep their road in a safe and proper condition for use, and to exercise that care in the management of the switch that was necessary to prevent any injury arising from that source. >í,hat duty is imposed upon the defendants at common law, and it arises, not from any contract of the parties, but from the acceptance of their charter, and from the character of the services they have assumed to perform. The obligation to perform that duty is as coextensive as the lawful use of the road, and is required as a matter of public security and safety^,/ These general principles were sustained by the supreme court of the United States, in the case of the Philadelphia and Reading R. Co. v. Derby, 1 Phil. Law Register, 397, and in the case of the Northern Railway Co. v. Harrison, 26 Eng. L. & Eq. Rep. 444. The direct liability of the defendants to the plaintiff in this case, we think, is fully established by the authorities. If the ground of this action was the non-performance of the contract made between the railroad companies, or of some duty arising out of it, the action obviously could not be sustained. In such case, whether the action be in form ex contractu or ex delicto, the principle governing the case would generally be the same. The same averments and proof would be required, that would be if the action was brought on the contract itself. The right of action in such case would be in the Rutland & Washington Railroad Company only; there would be no privity which would enable the plaintiff to sustain the action. It was upon that ground the cases were decided to which we were referred by the defendants. Winterbottom v. Wright, 10 M. & W. 109. Tollett v. Shaeston, 5 M. & W. 283. Lopes v. De Tastet, 1 Brod. & Bing. 538. Green v. Greenbank, 2 Marshall 485. Wright — 378 — v. Geer, 6 Vt. 151. The principles involved in those cases, however, have no application where a person has sustained an injury from a neglect of duty created by law, and which duty exists irrespective of any contract, or where the statement of a contract is merely introductory. A sufficient privity, in all cases of this character, exists between parties from and to whom a legal duty is owing, and where the breach of which is the cause of the injury. In cases of fraud a person injured can sustain an action, though he could sustain none upon the contract out of which the fraud arose. The cases of Langridge v. Livy, 2 M. &Wels. 518, Gerhard v. Bates, 20 Eng. L. & Eq. R. 130, are strong illustrations of that rule. “ If a stage proprietor, who may have contracted with the master “ to carry his servant, is guilty of neglect, and the servant sustains “ personal damage, he is liable to him; for it is a misfeasance “ towards him, if after taking him as a passenger, the proprietor “ or his servant drives without due care, as it is a misfeasance “ towards every one travelling on the road.” In that case a legal duty was owing to the servant, irrespective of the contract between the proprietor and the master, and though he could sustain no action on that contract, he could for the neglect of duty. “ If a “ mason contract to build a bridge or other work on a p ublic road ‘‘ which he constructs, but not according to the contract, and the “ defects of which are a nuisance, he may be responsible if a third “ person is injured by the defective construction, and he could not “ be saved from the consequences of his illegal act by showing he “ was guilty of a breach of contract and responsible for it.” The person injured in that case could sustain no action upon the contract for the construction of the work; but for the breach of duty, which was owing to every one lawfully upon the road, he could sustain his action. This general rule, and these illustrations of that rule, are given by Parke, B. in Longmead & wife v. Holliday, 6 Eng. L. & Eq. R, 565. A direct liability exists in all cases where personal injuries have been sustained by the neglect of duties which are of a general and public character, and whore the observance of those duties is required as a matter of public security and safety. The defendants by the acceptance of their charter have assumed the performance of the various duties required by it. Some of those duties are of — 379 — a private character, and due to particular persons, and for their non-performance they alone can complain. Jackson v. R. & B. R. Co., and Hurd v. same, 25 Vt. 151, 116. Other duties, which involve the safety and security of those who are in the lawful use of the road, are of a general and public character, and for their non-performance any person particularly injured can sustain his action. Nelson v. Vt. Canada R. Co., 26 Vt. 717. Mayor &c., of Lyme Regis v. Henley, 1 Bing. N. C. 222. It is that relation to the public, which by the acceptance of their charter the defendants sustain, and their obligation to discharge its corresponding-duties, that is the consideration for the grant of those corporate franchises to them. They have the right to construct and enjoy for private gain, but for public use, that which is termed an improved public highway. White River Turnp. Co. v. Vt. Central R. Co., 21 Vt. 590. It is upon that ground alone, such corporations exercise the constitutional right of taking private property against the consent of the owner for corporate use. In the language of Ch. J. Shaw in the case of Worcester v. The Western R. Co., 4 Met. 566 : “ it is manifest that the establishment of that great thorough- “ fare is regarded as a public work, established by public authority, “ intended for public use and benefit, the use of which is secured “ to the whole community, and constitutes, therefore, like a canal, “ turnpike or highway, a public easement. The company have not “ the general power of disposal incident to the absolute right of “ property: they are obliged to use it in a particular manner, and “ for the accomplishment of a well defined public object.” The duty of the corporation in all such cases to keep their road and the switches on it in a safe and proper condition for use, is of that public character, and is due to every person who is lawfully upon the road, — and for any injury which is not common to all, and which affects his person or property particularly, an action lies for him. A privity exists in all such cases between the parties from and to whom the duty is owing. In the case of Collett v. the London & N. Western R. Co., 6 Eng. Law & Eq. R. 305, this general principle was recognised. The defendants were under obligation to transport the mail. The plaintiff was lawfully in the cars in charge of the mail, as the servant of the Postmaster General, and was injured by the defendant’s negligence in the management — 380 — of the train. It was insisted that, there was no privity which would enable the plaintiff to sustain the action; — -but it was held that, the action was well brought. The defendants were in the use of a public franchise, and upon whom the law imposed the duty to use proper care and skill in transporting, safely, all persons who were lawfully on the road. That duty was owing to the plaintiff personally, though he was there as the servant of another, and that personal duty created a privity which enabled him to sustain his action. Patterson, J. observed that, “ it would be extraordinary “ if the Postmaster General were the person to sue for a personal “ injury to one of its officers.” It would be equally strange, that the plaintiff in this case is without remedy, or that a suit for his personal injury is to be brought by the Rutland & Washington Railroad Company. The same principle applies to physicians and apothecaries, who are directly liable to the parly injured, although they were employed by some other person; as their duties arise from their public relation, as well as from the nature of their employment. Pippin v. Sheppard. 11 Price 400. Gladwell v. Steggall, 5 Bing. N. C. 733. Thomas v. Winchester, 2 Selden, 397. We have no occasion in this case to examine the doctrine whether a principal is liable to one servant or agent for injuries occasioned to him by the negligence of another servant employed in the same service or business, — as we are satisfied the facts in the case do not warrant the application of that principle. There is no propriety in saying that the person having charge of the switch was at that time the servant of the Rutland & Washington Railroad Company, as the fact is otherwise expressly found in the case; neither can it be said that the train, of which the plaintiff was at that time engineer, became pro hac vice the train of the Rutland & Washington Railroad Company, for such was not the intention of either of the parties, and there is no propriety in placing them in a different relation to each other than that which they intended Jp assume. It is obvious from the whole case that, the defendants did not intend to surrender their control of the road, or over their agents and servants placed on the line; neither did the Rutland & Washington Railroad Company intend to assume the government and control of it. They were permitted to pass over the road at given times, the defendants in the mean time keeping in their own — 381 — hands the possession and control of the road, and of the servants and agents thereon, as if no such arrangement had been made. That arrangement probably did not impose on the defendants any additional duties; its effect was to render the plaintiff lawfully on the road at the time he was injured, and being lawfully there, the duties imposed on the defendants by law, to keep their road in all its parts in a safe condition for use, was due to the plaintiff, and for their neglect in that particular', we think, he can sustain this action. The judgment of the county court is reversed, and the case remanded.