Cumberland Valley Railroad v. Hughes

The opinion of this court was delivered by

This writ of error is founded in a misapprehension of the nature of the plaintiff’s action. ' It is case for negligence, not springing, as seems to have been supposed by the defendant below, from any implied contract, originating in the clearance given by the officers of the company to Messrs. Grier. This is only valuable in the cause, as showing that the car destroyed, was placed upon the railway with the defendant’s assent, and in consideration of toll paid or to be paid; which, however, might have been shown by other evidence or necessarily inferred from the fact that, at the time of the accident, the car was propelled by the company’s engine. Nor has the plaintiff’s right to sue any necessary connexion with the express contract between his intestate and the Griers. It served the purpose, undoubtedly, of proving the car belonged to Hughes, though temporarily in the possession of the Griers. But this is not necessary to the action, which does not arise from privity of contract. The plaintiff’s right to damages rests in the universal principle that he who, to the injury of another, neglects a duty that by law he ought to perform, is liable to compensate the injury, and under our system this is effected -by an action on the case. This principle is as old as the common -law itself: 1 Rol. 103.

Thus if a man, by prescription, is bound to repair fences between him and another, and doth not do it, whereby the cattle of the other pei’isheth, or enter and do damage, the defaulting party may *146be called to answer; 1 Vent. 265; 1 Salk. 335. So if one be bound to repair a bridge, by neglect whereof A. hath special damage; 2 Lev. 400; 11 H. 4. 826. An artificial person is equally liable to the operation of the rule. It was applied to turnpike companies, in Randall v. The Cheshire Turnpike Co., 6 New Hamp. R. 145; Townsend v. The Susquehanna Turnpike Co., 6 John. 90; and Turnpike Co. v. Sears, 7 Cow. 86. In these and numerous other cases, the responsibility of such corporations for the safety and sufficiency of their road and its appurtenances, so long as they exact toll, was recognised and enforced. The duty to keep the road in sufficient order and repair, so that persons and property may at all proper times pass in safety, is an implied one, resulting from ownership and the receipt of tolls. This duty is said to be perfect, founded in a valuable consideration, and not a mere casual or contingent one: Bartlett v. Crozier, 17 John. R. 451. It is, in truth, a condition attendant upon a grant of the privilege to construct a public road or highway for profit, which from its very nature enures to the benefit .of all who may have occasion to use the thoroughfare. To found a right of action on this general obligation, it is only necessary to show an injury to person or property, sustained through the negligence of the corporation or its servants. Where a chattel has been the subject of the injury, actual possession of it by the owner is not required. A general property in the thing injured, gives a right to sue, though no doubt, one having a special interest, at the moment, might also sustain an action. In the present case, the Griers must be regarded as the representatives of the owner, in causing the carriage to be placed on the road, under the license-recited in the nan*.: and it may, therefore, be considered as having been in the actual custody of the plaintiff’s intestate, by his agents, at the moment of its destruction.

This wholesome rule of liability for neglect ought, if a distinction in practice were permitted, to be most stringently enforced against railroad corporations, whose slightest inattention to the duties they assume may be, and frequently is, attended with the most frightful results. The almost daily loss of life and property, resulting from the indifference, but too often manifested by the agents of these companies, in the discharge of their obligations, carries with it an admonition that the public safety calls for a strict adherence to a rule suggested by considerations of policy and humanity.

Judgment affirmed.