Jefferson v. Chicago & Northwestern Railway Co.

WiNsnow, J. It appears that the defendant company allowed a private corporation to use a part of its tracks with a [552] dangerously defective engine, by reason of wbicln tbe plaintiffs’ property was destroyed. The defendant now seeks to avoid liability for the loss because the private corporation was engaged in its own business, and the defendant did not know that the engine it used was defective. It cannot thus escape liability. Leaving out of consideration the fact that the act of drawing loaded cars upon the loading track for transportation, or taking empty ears therefrom for loading, was essentially an act in the course of the defendant’s own business, and partly, at least, for its own benefit, the principle is well established that, when a railroad company permits another to make joint use of its track, it is liable for injuries caused to person or property by the actionable negligence of such licensee. 2 Elliott, Railroads, § 4W; Railroad Co. v. Barron, 5 Wall. 90. It has received its franchise to operate a railroad subject to certain well-defined duties as to the machinery which it uses. It cannot, while exercising those franchises, allow others to come in with defective machinery and use the gwasi-public highway jointly with it, and escape the- duty laid upon it by its charter to use safe machinery. Such a rule would open a door by which public servants, while reaping all the pecuniary benefits of their franchises, could easily escape from a considerable portion of their correlative duties by licensing irresponsible third persons to transact certain portions of their business. In the present case it is clear that while the lumber company was moving its engine over the defendant’s sidetracks it was operating the franchises of the defendant with its consent. It was as much the duty of the defendant company to see that this engine was not defective while using such tracks as to see that its own were not defective. The judgment is fully sustained by the verdict. By the Court. — Judgment affirmed.