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ple is one of comparatively recent growth. Only quasi public corpora

Pawtucket Street R. Co. (1896) 19 R. I. 537, 33 L.R.A. 564, 35 Atl. 67.

"The franchise carried with it the liability, and defendant, in accepting the privilege, accepted the liability, which could no more be contracted away than could the franchise itself." Philadelphia, B. & W. R. Co. v. Karr (1912) 38 App. D. C. 193.

In West v. St. Louis, V. & T. H. R. Co. (1872) 63 Ill. 545, the court, referring to a class of cases which it regarded as being distinguishable from the one before it, said: "These were all cases in which redress was sought against a chartered company for wrongs done by persons while in the performance of acts which they would have had no right to perform except under the charter of the company. The court laid down the salutary rule that, as to such acts, the company could not escape corporate liability by having the acts performed or the work done by contractors or lessees. These persons must be regarded, in such cases, as the servants of the company, acting under its directions, and the company must see that the special privileges and powers given to it by its charter are not abused." The correct principle was considered to be substantially this: "The company may be held liable, when the person doing the wrongful act is the servant of the company, and acting under its direction; and though such person is not a servant, as between himself and the company, but merely a contractor or lessee, still he must be regarded as a servant or agent when he is exercising some chartered privilege or power of the company, with its assent, which he could not have exercised independently of such charter. In other words, a company, seeking and accepting a special charter, must take the responsibility of seeing that no wrong is done through its chartered powers by persons to whom it has permitted their exercise." This statement was approved in North Chicago Street R. Co. v. Dudgeon (1900) 184 III. 477, 56 N. E. 796, affirming (1899) 83 Ill. App. 528.

"A railway corporation takes the responsibility of seeing that no wrong is done through the exercise of its chartered powers by persons whom it permits to exercise them, and, if the corporation has a public or statutory

tions, such as railway companies, gas companies, and others performing

duty to perform, the employment of an independent contractor with control of the work will not relieve it from liability. It must perform such duties, or be liable for any neglect thereof." Boyd v. Chicago & N. W. R. Co. (1905) 217 Ill. 332, 108 Am. St. Rep. 253, 75 N. E. 496.

In Solomon R. Co. v. Jones (1883) 30 Kan. 601, 2 Pạc. 657, the court laid down the law as follows: “Where a corporation is organized for the purpose of doing any work, the work will be presumed, in the absence of any showing to the contrary, to be done by it, and it will be held responsible for all that transpires. Especially is this true of a railroad corporation, for to it alone has the state given the privilege of exercising the right of eminent domain. And where the state grants a franchise of such importance, it has a right to assume for itself and all citizens that the party receiving the franchise is executing the work, and responsible for all that is done in such execution. Indeed, without some authority from the state, it cannot transfer the franchise, or devest itself of responsibil ity; so, where all that is patent to the public is the franchise, and the work done under it, the public has a right to treat the beneficiary of the franchise as responsible for the work."

It may be mentioned that a doctrine similar to the one stated in the text has been applied in a case in which it was held that a railway company is responsible for the acts of trustees who, as representatives of bondholders, have taken over the management of the company's business. Woodhouse v. Rio Grande R. Co. (1887) 67 Tex. 420, 3 S. W. 323, where the action was brought to recover the statutory penalty for unjust discrimination in freight charged. The theory rejected was that, "while railway companies are subject to all the laws of this state made for the purpose of compelling them to discharge their duties to the public faithfully and impartially, so long as they manage and control their own property, they have the power to relieve themselves from liability arising under these laws, by placing their roads under the management and control of other persons.'

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2 The present writer has not found any earlier specific instance of its

some function for the direct benefit of the community at large, or some particular portion, come within its scope.

The cases which illustrate the nondelegable quality of the duties incidental to the privileges conferred by municipal permits and licenses are reviewed in §§ 20 to 23 of the monograph in 25 A.L.R. pp. 426, et seq.

§ 2. Doctrine that the company is liable for the torts of a contractor. The doctrine underlying a considerable number of cases may be thus formulated:

A railroad company

recognition than a passage in the opinion delivered in Hilliard v. Richardson (1855) 3 Gray (Mass.) 349, 63 Am. Dec. 743. There the following comments were made upon Lowell v. Boston & L. R. Corp. (1839) 23 Pick. (Mass.) 241, 34 Am. Dec. 33, where a railroad company was held to be liable for injuries caused a traveler by the negligence of a contractor in failing to replace a protective barrier which had been set up along a deep cut intersecting a highway: "It is plain that it is the corporation that is intrusted by the legislature with the execution of these public works, and that they are bound, in the construction of them, to protect the public against danger. It is equally plain that they cannot escape this responsibility by a delegation of this power to others. The work was done on land appropriated to the purpose of the railroad, and under the authority of the corporation, vested in them by law. for the purpose. The court

which intrusts the construction of its road to an independent contractor is liable for any injuries that may result from tortious acts committed by him, while engaged in operations which are in a reasonable sense incidental to the exercise of the corporate franchise authorizing the construction of the road. For the purposes of this doctrine the generic term "construction" is assumed to mean not merely the building of a new road, but the reconstruction, alteration, or repair of one already in operation. The right of action has been affirmed with relation

poses of the present discussion the only material point is the theory to which the decision was referred in the later case.

For other early instances of a recognition of the principle, see Wyman v. Penobscot & K. R. Co. (1858) 46 Me. 162; Chicago & R. I. R. Co. v. Whipple (1859) 22 III. 105; Veazie v. Penobscot R. Co. (1860) 49 Me. 119; Vermont C. R. Co. v. Baxter (1850) 22 Vt. 55.

In two cases decided about the same time as those mentioned above, the applicability of the principle was an issue so clearly suggested by the circumstances that the omission to consider the remedial rights of the claimants with reference to it may fairly be regarded as indicating that it had as yet received very little attention from the courts. Blackwell v. Wiswall (1855) 24 Barb. (N. Y.) 355 (§ 30, note 1, infra); Gwathney v. Little Miami R. Co. (1861) 12 Ohio St. 92.

3 In Chicago Hydraulic Press Brick Co. v. Campbell (1904) 116 Ill. App. 322, it was held not to be applicable to a cartage company.

might well say that the fact of Noonan being a contractor for this section did not relieve the corporation from the duties or responsibility imposed on them by their charter and the law, especially as the failure to replace the barriers was the act of their immediate servant, acting under their orders." An examination of the Lowell Case shows that the decision was, in point of fact, founded on the broad doctrine applied in Bush v. Steinman (1799) 1 Bos. & P. 404, 126 Eng. Reprint, 978, as to the absolute liability of owners of fixed property for injuries caused by work on, or near, or in respect of it. See § 14 of monograph in 18 A.L.R. 1In Hughes v. Cincinnati & S. R. Co. pp. 801, et seq. But for the pur- (1883) 39 Ohio St. 461, where the

Compare also De La Vergne Refrigerat ng Mach. Co. v. McLeroth (1895) 60 Ill. App. 529, where it was held that a concession from the Columbian Exposition Company, prohibiting an assignment thereof save by the written consent of the company, does not make an independent contractor with the concessionaires for the erection of certain structures an employee of the latter, so as to make them liable for his negligence, resulting in an acciIdent while the structures are being erected.

to the occurrences specified in the following paragraphs:

A traveler was injured owing to

liability of the defendant was denied, it was observed by the court, arguendo, that "any condition imposed upon the right to construct its road must be performed, and the company cannot shift responsibility for its performance."

The

2 In Veazie v. Penobscot R. Co. (1860) 49 Me. 119, a town was held entitled to recover from a railway company the damages which it had been compelled to pay to a traveler who had fallen into an unguarded and unlighted cutting which the company had made through a highway. court said: "We place the decision on this point on the well-settled doctrine that where the legislature, as guardian of the rights of the public in a highway, permits a corporation or individual to use or interfere with the way, and to obstruct its use, on condition, express or implied, that all re quisite care is to be taken to protect others from injury, the right thus granted must be exercised by the party to whom it is granted, and cannot be assigned so as to relieve the party from the faithful execution of the power. The company may doubtless make contracts for the performance of the work, but cannot avoid their obligation to protect the public against danger, by the stipulations they may make. The grant of the legislature is to a known and responsible company, as it is to be presumed, over which the legislature has more or less control. Important rights are to be affected, and it would be a dangerous as well as an unsound doctrine to allow such a body to transfer their liabilities and obligations to the public and the individual citizens, to irresponsible or transient contractors. In the execution of such a trust, or power, the company must be responsible, whatever contracts they may make." Commenting upon this case in a later judgment, the same court said: "No private person or corporation has a right to interfere with a highway, and can only do so by authority from the legislature; and then, as the authority is personal, the act, by whomsoever done, remains personal. The act of a contractor, being unauthorized except from the legal privilege of his employer, logically

dangerous conditions created on a highway in the course of the stipulated work.2 The rule deducible from becomes the act of the latter, permitted by law in derogation of the public right. That is the doctrine of Veazie v. Penobscot R. Co. (Me.) supra, and it is not applicable here." Leavitt v. Bangor & A. R. Co. (1897) 89 Me. 509, 36 L.R.A. 382, 36 Atl. 998, 1 Am. Neg. Rep. 605. The explanation thus given disposes of the criticisms made upon the Veazie Case in Eaton v. European & N. A. R. Co. (1871) 59 Me. 520, 8 Am. Rep. 430, where the court misapprehended the true rationale of the decision.

In Metropolitan West Side Elev. R. Co. v. Dick (1900) 87 Ill. App. 40, where a workman engaged in the construction of an elevated railway dropped a piece of steel on a pedestrian, the court considered that the circumstances brought it within the scope of the broad principle that "a contractor exercising the chartered power of a corporation, with its assent, must be regarded, in so far as the public and third persons are concerned, as the servant or agent of the corporation."

In Deming v. Terminal R. Co. (1901) 169 N. Y. 1, 88 Am. St. Rep. 521, 61 N. E. 986, affirming (1900) 49 App. Div. 493, 63 N. Y. Supp. 615, the essential facts involved were as follows: The supreme court of New York, acting in pursuance of its statutory powers, had authorized the defendant railway company to build a bridge over its track at a point where it was crossed by a street, and had also ordered the defendant to comply with the requirements of the General Railroad Law of that state, which authorizes railroad companies to excavate, fill in, or change the grade of a highway, when necessary to carry its line across the roadway. When the embankment by which the overhead crossing was to be approached had been partially formed, the plaintiff's carriage came into collision with the obstruction thus made on the highway, the contractor for the work having failed to guard it by lights. For the injury caused by the upsetting of the carriage the defendant was held liable, on the ground that the duty imposed by the statute involved care and vigilance in the prosecution of the work, as well as a substantial restora

the cases cited may be formulated thus: Whenever a railroad company is authorized by the state to interfere with, or temporarily obstruct, a public highway, such permission carries with it, and imposes upon the corporation, a corresponding duty to protect travelers by such precautionary measures as may be appropriate under the circumstances, and this duty cantion of the highway when the work was completed. The liability of the railroad company for the resulting injury was affirmed on grounds thus stated: "Dominion over the highway was by the operation of the statute, upon the order of the supreme court, for the purpose of carrying the highway over the railroad tracks, vested in the defendant railroad company, which, having accepted the privileges and benefits conferred upon it by statute, necessarily took, with them, all the obligations and liabilities in respect to the highway which its absolute dominion over it for the purpose of carrying it across the railroad track made necessary, among which was the duty of so guarding the obstructions to the highway which were made under its direction as to save passers-by from injury." The following remarks of the supreme court may also be quoted: "Manifestly, as it seems to us, the obligation assumed by a railroad company when it takes possession of a highway for the purpose of effecting a crossing thereof is analogous, for the time being, to that which pertains at all times to a municipality in its care of its streets, and we are consequently of the opinion that the statute under which the defendants were prosecuting their work imposed upon them duties similar to those which would have rested upon a municipality engaged in the same character of work, and for precisely the same reason. It is true that the statute does not, in express terms, declare that when carrying its line of road across a public highway a railway company must guard and protect the traveling public from such damages as may reasonably be anticipated from its interference with the highway; but it does confer the right to excavate, fill in, and change the grade of the highway, and this necessarily involves some obstruction and inconvenience to travelers thereon. If. therefore, in the conduct of its opera

not be so delegated to a contractor as to relieve the licensee from the consequences of his failure to perform it. The subjacent support of a building was weakened by the construction of a tunnel.3

Damage was occasioned to adjoining premises by acts done in the course of the stipulated work.

Cattle were killed by a train opertions, the obstruction is unnecessarily dangerous, or if it is permitted to remain for an unreasonable length of t.me, or if, while it remains, it is not properly guarded, it becomes a public nuisance, and certainly it is not the policy of the law to sanction the creation or maintenance of a nuisance which would be a constant menace to life and property."

3 In Philadelphia, B. & W. R. Co. v. Karr (1912) 38 App. D. C. 193, one of the grounds upon which the liability of the defendant was based is shown by the following extract from the opinion: "The liability of the principal is in each case dependent, not upon the question of whether or not the tort is committed by an independent contractor, but upon whether the circumstances of the case are such as to prohibit the principal from contracting away his liability. In this instance, defendant acquired a right from Congress to construct the tunnel. The grant to defendant was a personal one. Congress, as guardian of the rights of the public in the use of the highway, either on the surface or under the surface, did not intend to grant to defendant the right to so construct its tunnel as to impair private rights without compensation. The franchise carried with it the liability, and defendant, in accepting the privilege, accepted the liability, which could no more be contracted away than could the franchise itself." 4 In St. Louis & C. R. Co. v. Drennan (1887) 26 Ill. App. 263, the company was held liable for damage resulting from the act of a contractor in cutting ditches and raising embankments.

In a case where men employed by a contractor engaged in the construction of a railway committed a trespass by entering upon the plaintiff's land, and digging up the soil, and making embankments, it is not error to refuse to admit evidence that the company had nothing to do in employing the hands doing the work, but that

ated by a contractor for the purpose of his work.5

Owing to the negligence of the contractor's servants in managing a train operated by him for the purposes of they were employed and paid by the contractors. Cairo & St. L. R. Co. v. Woosley (1877) 85 Ill. 370.

In Waters v. Greenleaf-Johnson Lumber Co. (1894) 115 N. C. 648, 20 N. E. 718, where the action was brought to recover for a trespass committed by a contractor employed to construct a railroad for a lumber company, the court, contrasting the circumstances under review, remarked that the company would have been liable for the injuries complained of if the entry upon the plaintiff's land had been made in the exercise of the right of eminent domain.

5 In Chicago & R. I. R. Co. v. Whipple (1859) 22 Ill. 105, the defendant's liability was predicated on the ground that the "contractors derived all their authority from the company, and for their tortious acts, while exercising the franchises granted to the corporation by their charter, the company must be held responsible."

The liability of railroad companies. for injuries of this description, in so far as it has been referred to the conception that statutory duties are nondelegable, is discussed in §§ 2 and 3 of the monograph in 23 A.L.R. pp. 984, et seq.

As to the liability of a lessor company for injuries caused by the failure of its lessee to construct cattle guards, see § 23, note 3a, infra.

• Chattanooga, R. & C. R. Co. v. Whitehead (1892) 89 Ga. 190, 15 S. E. 44.

7 The syllabus of the court in Chattanooga, R. & C. R. Co. v. Liddell (1889) 85 Ga. 482, 21 Am. St. Rep. 169, 11 S. E. 853 (derailment), is as follows: Where the contract between the railroad and construction companies provided that the latter should "operate the railroad so as to be completed and equipped, for two years, and should receive its earnings," the railroad company was liable for injuries occurring by the negligence of the construction company during that period, such operation being by virtue of the franchise of the railroad company, and with its knowledge and sanction.

In Lakin v. Willamette Valley & C.

general traffic, injury was occasioned to a traveler at a highway crossing;" to a member of the public who was being carried as a passenger;7 to a servant of the contractor who was being R. Co. (1886) 13 Or. 436, 57 Am. Rep. 25, 11 Pac. 68, the court held that the company "may contract for the construction of its road, but it cannot escape liability for injuries to passengers caused by the negligence of another, which it permits or allows to use its road for the purposes of traffic." It was declared that, so far as the responsibility of the company was concerned, it was immaterial whether it gave the privilege of using its road to the contractor, or allowed him to use the road, or the using and operating of the road arose out of some stipulation of the contract to build and construct it.

In Cogswell v. West Street & N. E. Electric R. Co. (1892) 5 Wash. 46, 31 Pac. 411, the defendant pleaded that, at the date of the alleged injury, it had a contract with an electrical construction company, under which the latter was to equip the road with electrical appliances, engines, cars and other necessary machinery; that under that contract the construction company had contracted to operate the road satisfactorily for at least ten days before it could require payment for the equipment; and that the car in question and road were then being operated by the construction company, which had not yet transferred to the defendant the railway completed and equipped according to the contract. The court said: "Had this been a car which was being run backward and forward over the line by the construction company, carrying material, or for any other purpose in connection with the equipment of the line, or for the purpose of testing its working condition, the contention of the appellant might have been sustained, but the car in question was a passenger car, which was being operated for profit between Seattle and the town of Ballard. It was run upon a time-table, and was manned by the usual conductor and motorman. The public were invited to take passage thereon upon payment of the usual street-car fare, and in fact, at the time of the accident, it was carrying a load of upwards of eighty passengers."

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