carried as a passenger; and to a horse straying on the track.9

A servant of the railroad company was injured by reason of negligence which rendered the place of work unsafe.10 But it would seem to have been quite unnecessary, under the circumstances thus presented, to invoke the conception of an absolute duty as arising out of the exercise of corporate franchises. The decision might well have been referred

In Macon & A. R. Co. v. Mayes (1873) 49 Ga. 355, 15 Am. Rep. 678, where a tracklayer in the employ of a contractor was held entitled to recover for injuries received while he was temporarily working as a fireman on a train operated by the contractor, the court said: "In our judgment, if a railroad company sees fit to permit another person or corporation to run steam cars over its road, it is liable to third persons for damages caused by the negligence of such persons or corporations, just as though the company had itself been running the cars.

Here Hull & Company were using the franchise of running steam cars through the country, across the public roads, and by the side of them, -an act which is a nuisance unless by legislative grant,-and in the, doing of this the damages came to the plaintiff. If the engine and tender were at the time under the orders of the president of the road, the case is clear. If under the orders of Hull & Company, it was by the consent or permission of the company, and the case stands upon the rule we have discussed. We put the case, in this view, upon the ground that the use of the engine and tender for the purpose set forth in the record, to wit, to pass over the road with steam cars, from point to point, for the purpose of carrying Mr. Hazlehurst, was a use of the franchise of operating the railroad by steam, and that the corporation is liable, no matter who did it. The case might be different if the contractors were in the prosecution of their proper work, as moving dirt, etc., under circumstances when they were not exercising the franchise of the company in operating the railroad by steam cars, so as to do that which, without the franchise, would be a nuisance." In this case the evidence did not show whether the road had been turned over to the defendant, 28 A.L.R.-9.

to the second ground relied upon by the court, viz., that a master is liable to his servant for a breach of nondelegable duty, although the unsafe conditions which caused the servant's injury were produced by the negligence of an independent contractor.11 A servant of the contractor was injured through the negligence of the railroad company's servants in managing its cars.12

A servant of the contractor was inwhen the accident occurred. The authorities relating to the situation which would have been presented, supposing the contractor to have been a licensee of a completed road, are collected in § 22, infra.

9 Wyman v. Penobscot & K. R. Co. (1858) 46 Me. 162, where one of the grounds on which the action was held to be maintainable was that the accident was the result of the company's failure to perform its charter duty to build fences.

10 In North Chicago Street R. Co. v. Dudgeon (1900) 184 Ill. 477, 56 N. E. 796, affirming (1899) 83 Ill. App. 528, where an action was held to be maintainable against a street railway company by a conductor who, when attempting to board his car, was injured by coming into collision with a pile of stones left in the street by a contractor engaged in repairing the defendant's track, one of the grounds upon which the decision proceeded was thus stated: "There is an exception to the general rule that the doctrine of respondeat superior does not apply to cases of independent contractors, viz., where the defendant company is exercising some chartered privilege or power which could not be exercised independently of its 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." The relation of this case to certain other Illinois decisions is discussed in § 3, note 12, infra.

11 This doctrine had before the date of the decision cited in note 10, supra, been adopted in Pullman Palace Car Co. v. Laack (1892) 143 III. 242, 18 L.R.A. 215, 32 N. E. 285, 14 Am. Neg. Cas. 291.

12 In St. Louis, I. M. & S. R. Co. v. Coutch (1914) 111 Ark. 5, 162 S. W.

jured by reason of the defective condition of a hand car.18

Reference may also be made to the remarks of the court in a case in which the actual point involved was whether a foreign construction com

1103, the material facts, as stated by the court, were as follows: The ties used by the contractor were loaded on a train furnished by the railway company, and in charge of its servants, in so far as it was necessary to protect the other trains running over the road. The contractor, under the terms of the agreement, had charge of the train while engaged in loading the car. The railway company would designate what piles of ties it wanted loaded, and the contractor had exclusive authority over the movement of the train in loading the ties. The cars were spotted under the direction of the contractor, and were moved from one pile to another for the purpose of loading the ties under his direction. In such cases, the foreman of the contractor gave the signal to the engineer to move the train, and at the time plaintiff was injured he gave the signal to the engineer to move the train. The claimant, a servant of the contractor, was injured by the sudden starting of the train. The contention that the railway company was not liable for the failure of the contractor to furnish his employees a safe place in which to work was thus dealt with: "The courts have frequently said that the creation of a corporation to operate a railroad is the exercise of a sovereign power, and includes the grant of important franchises. Such corporations have power to exercise the right of eminent domain, and various rights and privileges not possessed by natural persons, in return for which they are placed under obligation to perform certain duties to the public. Upon principles of public policy and the general rules applicable to contracts, a railway company cannot, without the consent of the state, absolve itself from any duties imposed by its charter and the general laws of the state, by any agreement made with a third person. In the present case the railroad was already constructed and in operation for the purpose of traffic. Applying the principles above announced to the facts stated in this case, the railroad company could not, by agreement with a

pany was entitled to sue a domestic railroad company for the price of the work performed by it, without having complied with the statutory conditions precedent to doing business in Alabama.14

third person, delegate to him the right to operate and control its trains so as to relieve itself from responsibility therefor. Although De Camp might be considered an independent contractor, so far as loading the ties was concerned, the railroad company could not go further and, by contract with him, relieve itself from any liability arising from the operation of its trains."

13 Toledo, St. L. & K. C. R. Co. v. Conroy (1890) 39 Ill. App. 351. The ratio decidendi was that the work in progress when the accident occurred, viz., the change of the track from a narrow to a standard gauge, was being done in pursuance of the defendant company's charter powers to construct a railroad. In this case the hand car was the property of the defendant, and its liability might apparently have been predicated on that ground also.

14 Alabama Western R. Co. v. Talley-Bates Constr. Co. (1909) 162 Ala. 396, 50 So. 341. The essence of the defendant's plea was that it could not be sued in Alabama because it had not complied with § 3642 of the Code of 1907, providing that every corporation not organized under the laws of the state shall, before it transacts any business in the state, file an instrument in writing in the office of the secretary of state, designating at least one known place of business in the state, and an authorized agent residing thereat. To this plea the plaintiff interposed a demurrer, based mainly upon the theory that the fact of the work in Alabama having been done by independent subcontractors relieved the plaintiff of the charge of having offended against this provision. Held, that a demurrer to this plea had been improperly sustained. The court said: "Looking at the question from the standpoint taken by the state when it adopted the constitutional and statutory regulations bearing upon the subject, the character of intervening agencies employed by the plaintiff in carrying out its contract to build the railroad appears to be immaterial. The question is:

Where a company is empowered by its charter to enter upon land contiguous to its road, and carry away "such materials as may be necessary for building or repairing the road," an action may be maintained against it Did it engage in the business of building railroads? The ease of plaintiff's way to the conclusion that it did not is supposed to be increased by the fact that the subcontractors were independent. Rather, it may be said, the entire contention turns upon the merits of the word 'independent.' If plaintiff and its subcontractors stood to one another in the mere relation of contractee and contractors, then, according to the general and correct understanding, the relation of principal and agent existed. Does not a corporation engage in the performance of its corporate functions when it secures the doing of the thing it was chartered to do, through the employment of contractors; and, if so, does it not transact business at the place where the work is done? We think so.

The exemption from liability for the acts of subcontractors, relied upon as differentiating this from the ordinary case of principal and agent, if pertinent to the issues, is not universal. The plaintiff could not thus evade its public duties. It could not, for example, escape responsibility for the negligence of its subcontractors in crossing roads and streams along which the public travel; and, of course, it could not, on this ground, evade responsibility to the defendant and its own subcontractors, arising out of the physical execution of the contract in this state. Our

conclusion, then, is that if the plaintiff constructed the railroad by the employment of subcontractors, under the conditions predicated in the count and plea, it had more than a mere pecuniary interest in the work. It was not a mere guarantor. It was interested as principal. It engaged in the exercise of its corporate functions in this state, notwithstanding it employed independent subcontractors to do the actual work." It was furthermore held that the subcontractors were to be considered as agents of the plaintiff, this relationship being produced by the operation of the stipulations in their contracts against subletting.

15 Vermont C. R. Co. V. Baxter

to recover the value of any materials which a contractor employed to construct the road, or a portion thereof, may take for the purposes of his work.15

The liability of the company is

(1850) 22 Vt. 365. The court said: "The power conferred upon railroad corporations, to take the land and other materials adjoining the line of the road for the purpose of constructing the road, is one in derogation of the ordinary rights of landowners, and one which could only be conferred by the legislature by virtue of the right of eminent domain, and because it is necessary to the reasonable exercise of sovereignty. And we think it is one which is as necessary to exist in and be exercised by all the contractors on the road, as by the corporation. Indeed, it is only for that purpose that it is important. And whether the corporation construct their road themselves, or by contract with others, is unimportant. This is a power which must go with the contract, which is indispensable to the building of the road, which must be understood to go with the contract, which is, in fact, never exercised by the board of directors of the company, but always by the builders, under the supervision of the engineers, and which must, of course, be exercised only within reasonable limits and in a proper manner. The very words of the statute show by whom it was expected this power would be exercised,-'by engineers, agents, or workmen.' This, then, being a power which was conferred by charter upon the company, and which of necessity pertains to the contractor, as a necessarily delegated office from the company to the contractor, and which they must expect him to exercise, it is the same as if in express terms it were stipulated that he may exercise it. For this purpose, then, the contractor is the agent of the company. And as the proprietors of the land cannot resist the contractor, because he is clothed with the authority of the company, it would be hard if they could be compelled to look to any and every contractor to whom the company might see fit to turn them over. . . This subject may be very well illustrated by supposing that the landowners had, by contract, conferred upon the company the same rights and privileges as to

predicable only in respect of torts committed by a contractor selected and employed by itself.16

The liability of the company is, of course, predicable on the ground of personal fault, and without any reference to the general doctrine formulated above, if the train which caused the injury complained of was operated under the control of the company's servants.17

$ 3. Doctrine that the company is not liable for the torts of a contractor. The doctrine upon which other cases proceed may be thus enunciated: Unless the enabling statute from which a railway company derives its powers imposes upon it, either expressly or by implication, the duty of building its own road, it is entitled to make a contract with another party for the performance of this work, and a contract of this character is not such

building their road, and upon the same conditions stipulated in the charter, and the company had let the building of the road to this contractor, and he and the landowners had proceeded, in all respects, as they now have. There could be no doubt, I apprehend, that the contractor would have acquired the rights of the company, as to taking and working materials for the road, and, as between himself and the company, would be bound to pay for them; but the landowners might well claim to look to the stipulations in their own contract, and could not, without their own consent, be turned over to the contractor. This illustration, which, as far as we can see, is every way a fair one, brings the whole subject within a very narrow compass, and renders it sufficiently simple."

For similar decisions with regard to a navigation company, see Lesher v. Wabash Nav. Co. (1852) 14 Ill. 85, 56 Am. Dec. 494, and Hinde v. Wabash Nav. Co. (1853) 15 Ill. 72, reviewed in § 27, note 1, infra.

16 See New York, N. H. & H. R. Co. v. Baker (1899) 50 L.R.A. 201, 39 C. C. A. 237, 98 Fed. 694, where a railroad company was held not to be liable to a passenger for an injury caused by the negligence of a servant of a contractor, engaged by a municipal board in pursuance of a statute, the

its

a delegation of its chartered powers and privileges as will involve the continuance of a liability for tortious acts committed by the contractor on his servants while engaged in the stipulated work. In other words, "the principle that a railroad company cannot delegate to an employee chartered rights and privileges, so as to exempt it from liability, does not extend to the use of the ordinary ways and means for the construction of the road, but to the use of such extraordinary powers only as the company itself could not exercise without having first complied with the conditions. of the legislative grant of authority." In this point of view the liability of the company has been denied with reference to the circumstances stated in the following paragraphs:

The work of construction was performed in such a manner as to create a nuisance on adjacent premises.2

effect of which was to take the work in question out of the company's control.

17 See Wyman v. Penobscot & K. R. Co. (1858) 46 Me. 162, where one of the grounds relied on was that, in the agreement between the defendant and the contractor, it was stipulated that the trains used for the purposes of the work were to be "under direction and control" of the former.

1 Cunningham v. International R. Co. (1879) 51 Tex. 503, 32 Am. Rep. 632. This statement was adopted in Sanford v. Pawtucket Street R. Co. (1896) 19 R. I. 537, 33 L.R.A. 564, 35 Atl. 67.

2 Atlanta & F. R. Co. v. Kimberly (1891) 87 Ga. 161, 27 Am. St. Rep. 231, 13 S. E. 277 (grading work so performed as to cause an accumulation of water; camp of convict laborers established near house). The court reasoned thus: "There was no duty imposed upon the railroad company, either by contract or by statute, to do this particular work, or to do it in a particular way. Its charter does not impose upon it the duty of building the road, and does not specify the manner in which it shall be built; nor is any liability imposed upon it for acts of the kind complained of in this case. The authorities all hold that a railroad company has the right to make a contract with

A trespass was committed on adja

other parties for the construction of its road, and it is held that a contract of this character is not such a delegation of its chartered rights as to render the company liable for unauthorized wrongs committed by the contractor or his servants while engaged in the work." This passage is followed by the statement already quoted from the opinion of the supreme court of Texas in the Cunningham Case, cited in note 1, supra.

In Rooker v. Lake Erie & W. R. Co. (1917) 66 Ind. App. 521, 114 N. E. 998, where excavated earth, etc., had been deposited on the plaintiff's land by a contractor employed to separate the grades of a railway and a highway, the court rejected the contention that the defendant might be held liable on the ground that the work in question "was a work which the law required

[the defendant] to perform, and that the duties and obligations connected therewith were implied covenants of the railroad company's charter, which such company could not lay aside or cast upon the shoulders of another." The theory úpon which the court relied was that the principle thus invoked is not applicable where the action is brought to recover damages for a tort committed on the claimant's own land. But the notion that the mere locality of the acts which produced the injury complained of may constitute a diferentiating factor as regards the applicability or nonapplicability of the principle does not, so far as the writer is aware, find any support in the cases in which it has been held or denied to be controlling.

In Hughes v. Cincinnati & S. R. Co. (1883) 39 Ohio St. 461, it was held that a wilful trespass of which a contractor's workmen had been guilty, in wasting materials on land over which the defendant had not acquired any proprietary rights, was not committed in the exercise of any corporate function. The court said: "It is contended that a railroad company cannot delegate to others the responsibility for the proper performance of work which it alone was authorized to do. The scope of this proposition is not readily perceived. In support of it, it is said in argument that, 'when the legislature gives a railroad corporation the right to take the land of citizens and build its railway thereon

cent premises.3

without their consent, it confers a dangerous and extensive authority, and it cannot be implied that the recipient of such power may redelegate it, or shift the responsibility for its proper exercise. The acts of the contractor's workmen were the acts of the defendant. Except for defendant's charter, those workmen would have been trespassers on plaintiff's land. They were there doing work which the defendant alone was authorized to do. They were, then, in defendant's right and exercising defendant's corporate functions.' This argument is fallacious. These work

men

on plaintiff's land were trespassers, notwithstanding defendant's charter. The defendant was not authorized to do work there. This work was not the exercise of corporate functions. Undoubtedly, the defendant could not transfer to its contractors the right to be a corporation, or the right of eminent domain, or the right to commit a trespass. If the defendant had sent its contractors upon land where it had no right to go, for the purpose of building its road or wasting material, its liability could not be doubted. The question in this case, however, is this: If a railway company, by the exercise of its power of eminent domain, acquires all the land necessary to the construction of its road, and sends its contractors to construct its road thereon, is it necessarily liable for a trespass committed by them while engaged upon the work? We think not. The work of constructing a railroad is not corporate work unless it be done by a corporation through its agents and servants. And a person may contract with a railroad company to construct its road, without becoming its agent or servant. This proposition, therefore, resolves itself into a single question, May a railroad corporation, having power to contract as fully as a natural person in relation to its corporate business, enter into a contract with another person for the construction of its road, without retaining control over the mode and manner of doing the work? We can see no reason to doubt it. Of course, any condition imposed upon the right to construct its road must be performed, and the company cannot shift its responsibility for the performance. But this is no new principle, nor one ap