The general principles governing cases of alleged liability of masters for injuries occasioned by the negligence of heir servants have, from the frequency of the occurrence o. *51questions of this nature, come to be well settled. The difficulty consists in applying them to any given case in which a new state of facts is developed, and in ascertaining whether the relation and the legal responsibility arising from it attach to the particular case.

In the present case the defendants, having voluntarily assumed the relation of mortgagees of the Norfolk County Railroad, and trustees for the bondholders, and having entered into possession of the road, and taken the control and direction of operating it, under their legal right so to do, became the controlling power in relation to the running of cars upon the road, and the various agents employed in relation thereto, and thus assume'd all the responsibility of that position. Such was the state of the road, and such the responsibility of the defendants prior to the 22ci of July 1862, when the defendants, being lawfully authorized so to do, executed a lease of the road extending from Dedham to Blackstone, and of its depots, tracks, rolling stock, &c., for a period of five years, under certain conditions therein mentioned, to a corporation known by the name of the Midland Land Damage Company. The effect of this lease, had the lessees entered under it upon the road, and taken upon themselves the running of the trains and the conducting of the operations of the road, would have been to divest the defendants of the right further to control and direct as to the same, and to free them from all liability for negligence of the servants employed by the 'essees in operating the road.

For reasons not distinctly stated, but the apparent object of vhich was the more effectually to secure the payments to be made to them by the lessees, by taking themselves the income of the road which daily accrued from the running of trains, the defendants did not withdraw from the active management, direction and control of the road on the 22d of July, but agreed verbally with the lessees that they, “ the defendants, should continue to operate the road for the lessees and receive the earnings, and that, after paying the expenses, the balance should be applied by the defendants toward the payment of the rent due from the 'essees under the lease.” The understanding of the parties to *52this agreement, and their action upon it to the present time, are thus stated in the report of the case made to the court: “ The defendants receiving the earnings of the road, paying the expenses, selecting, contracting with and discharging the persons employed on the road, and exercising all the powers usually exercised by railroad corporations over their own roads.”

■ Such was the status of the parties. The defendants were by a lawful agreement in the full exercise of all the powers incident to a supreme control and authority as to the running of trains on the road, and especially so as to the servants employed and connected therewith. Their position was a totally different one from that of a superintendent or conductor authorized to employ servants for a corporation, but over whom and the servants they employ the corporation has the control. Such superintendent or conductor would be responsible only for his own acts, and not for those of the servants thus selected. The corporation would be the party responsible to third persons for any injuries occasioned by the-negligence of the persons thus employed.

In the present case, there was above the defendants no such superior power, which had any control over the appointment or continuance in office of the persons employed on the road, or the mode of discharging their duties. It is precisely for this reason that the defendants have made themselves liable as principals, and must take responsibilities as such, looking for their indemnity to the receipts from the earnings of the road, over which they have full control. We have not overlooked the fact that the language of the agreement as stated is, “ they shall continue to operate the road for the lessees.” The last clause is an ambiguous one, and standing alone it might be supposed to signify that the lessees were to be the principals, although the words may also be satisfied by treating it as a form of expression indicating that the defendants had become substitutes for the lessees. But the construction put by the parties on this new arrangement, and what they intended by it, are made clear oy the further statement in the report of the nature of this con tract, and what was the actual mode in which the defendants were to continue to operate the road, and what powers were *53and have been at all times exercised by them. The real inquiry is, in whose name were they in fact operating this road ? As already stated, they have always exercised the sole power of selecting, contracting with and discharging the persons employed on the road. They exercised all the powers usually exercised by railroad corporations over their own roads. The switchman, whose negligence is alleged to have caused the injury tc the plaintiff, was, as is admitted, employed by the defendants, and, in the view we take of this arrangement between the lessees and the* defendants, as to continuing to operate the road, was their servant in the same unqualified sense that he would have been the servant of an ordinary railroad corporation that might have employed him in their business.

The inquiry in each case must be, whether the person whose negligence caused the injury is to be considered as a servant of the defendant. If he be such, then by the rules of law the party who stands in the relation of master is answerable for the injury resulting-from the negligence of the servant in the performance of the business committed to his charge. Laugher v. Pointer, 5 B. & C. 547.

The tests of such relation of master and servant will be found often stated. Thus in Fenton v. Dublin Steam Packet Co. 8 Ad. & El. 835, the owner of a chartered vessel, by retaining the right to appoint and dismiss the officers and crew, made himself liable for the negligence of the crew. In Quarman v. Burnett, 6 M. & W. 509, it was held that “ he who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey,” stood in this relation of master, and was responsible for the acts of his servant. In Dalyell v. Tyrer, 1 El. & Bl. 908, it is said, “ The crew of the steam-tug were the servants of the defendants. The defendants bad hired and paid them, had entire control over them, and had power to substitute others in their place.”

In the case before us, all these circumstances, stated as tests, existed, and must necessarily establish the relation of master and servant between these defendants and the switchman, through *54whose negligence the injury is alleged to have occurred. The effect must be to subject them to the ordinary liabilities attaching to this relation, and to make them responsible for an injury to a third person, occasioned by the negligence of such servant in the performance of the business in which he was employed by his masters.

The case therefore must be sent to a new trial.