Eaton v. Boston & Lowell Railroad

At the time of the injury complained of, the relation of passenger and carrier existed by contract between the plaintiff and the defendants; they had received the plaintiff upon their cars, and were bound tó the exercise of all that care and caution which the relation imposes. The degree of care required is measured by the extent of the peril to human life and limb which would be occasioned by neglect; and was therefore the highest which may reasonably be exercised in order to prevent those injuries which human foresight could avert. The *505plaintiff has the right to look to the defendants in the first instance for the discharge of this obligation assumed. And it is no answer to an action by a passenger against a carrier, that the negligence or trespass of a third party contributed to the injury. These propositions would be more manifest if this action had been brought in form upon the implied undertaking of the defendants ; but the plaintiff may elect to sue in tort or contract, and the rule of duty is the same in either form of action. Warren v. Fitchburg Railroad, 8 Allen, 227. Ingall v Bills, 9 Met. 1. McElroy v. Nashua & Lowell Railroad, 4 Cush. 400. Sullivan v. Philadelphia, &c. Railroad, 30 Penn. State R. 234.

Even if no privity of contract existed, and the injury was the result of the joint act of the defendants, the owner of the load of hay and the Eastern Railroad Company, it would furnish no defence to this action ; for, in actions of this description, nonjoinder of defendants cannot be availed of in bar. And this is true although the party contributing by his negligence was acting without concert with and entirely independently of the defendants. Illidge v. Goodwin, 5 C. & P. 190. The cases cited by the defendants, in opposition to these propositions, against towns for injuries occasioned by defects in highways are reconciled by the consideration that, this liability of towns is wholly statutory; and, by the construction given to the statute, no action can be maintained unless the injury arises wholly from the defect. Rowell v. Lowell, 7 Gray, 100. Kidder v. Dunstable, Ib. 104. Richards v. Enfield, 13 Gray, 346. Moore v. Abbot, 32 Maine, 46.

The first, second and fourth prayers for instructions, exonerating the defendants if the negligence of other parties contributed to the injury, were therefore properly refused, unless the case is taken out of the scope of these principles by the provisions of St. 1851, c. 128, upon which the defendants rely. By this statute, certain railroad corporations, including the defendants and tne Eastern Railroad Company, were authorized to enter upon and use a portion of the Essex Railroad in common. Numerous provisions are therein made regulating the manner of the use and the compensation to be paid. A superintendent *506is to be appointed by the companies, and the directors of all the corporations are to make such arrangements as are necessary for the joint management and repair of the road; and in case of disagreement, each of said companies is empowered to apply to the county commissioners, who shall act as arbitrators on all points of difference between them. By section 6 it is provided that “ in case of any accident occurring upon that part of the Essex Bailroad,” “ that company shall be held liable for the same by whose act, neglect or default it was occasioned; and if it shall occur in consequence of any defect in the road, the damage shall be borne by the three companies respectively, in the same proportion in which they are required to pay for repairs of the road.”

It is contended that, as these provisions establish a tribunal, consisting of the directors of all the roads, for the settlement of the arrangements for the joint management, the defendants are not liable in any form for injuries to third persons from any want of safety in the management fixed upon. But the defendants cannot escape liability for injuries occasioned by arrangements with the other roads to which they assented, by which the safety of passengers was endangered. It was not the purpose of the statute to establish a tribunal to settle these arrangements, whose adjudications should be conclusive upon all persons upon the question of their propriety. The instructions of the presiding judge upon this point were carefully given, and were in no respect erroneous. All the provisions of this statute, including § 6, were intended, we think, to regulate the use of the road and define the liability of these corporations among themselves for injuries happening on the road so used in common. As to strangers and other parties not in privity of contract, the liability of each stands upon common law principles.

The third instruction asked for was fully covered by the instructions given. It was wholly for the jury under all the circumstances to say whether due care required the defendants’ servants to remove the passengers from the car, and it was so left to them.

All the instructions not given were rightly refused, and those which were given were sufficiently favorable to the defendants.

Judgment on the verdict.