was working collapsed under the weight of a train.11

A servant of the contractor was injured owing to negligence in the management of a construction train supplied by the company, but operated by the contractor. The right of action has been denied in cases where the claimant was being carried on the train,12 and in cases where he was run over while engaged in surfacing the track.13

A servant of the contractor was injured owing to the negligence of the master in allowing an appliance furnished by the company to become defective. 14

A servant of the contractor was injured as a result of the derailment of a car used for grading work.15

In a Scotch case, where the cars of the complainant company were injured by reason of a collision with a construction train, operated on a connecting line then under construction, the discussion had reference mainly to the sufficiency of the pleadings; but it was agreed by all the judges that the action would not be maintainable if the evidence showed that the collision was due to the negligence of the contractor performing the construction work.16 This conclusion, however, was based upon the general rule under which an employer is exempted from liability for the torts of an independent contractor, and the

11 Bibb v. Norfolk & W. R. Co. (1891) 87 Va. 711, 14 S. E. 163.

12 Scarborough v. Alabama Midland R. Co. (1891) 94 Ala. 497, 10 So. 316 (injury caused by collision); Miller v. Minnesota & N. W. R. Co. (1888) 76 Iowa, 655, 14 Am. St. Rep. 258, 39 N. W. 188 (injury resulted from running train at excessive speed on an unsafe track); St. Louis, Ft. S. & W. R. Co. v. Willis (1888) 38 Kan. 330, 16 Pac. 728 (injury resulted from derailment caused by defects in the track).

13 Hitte v. Republican Valley R. Co. (1886) 19 Neb. 620, 28 N. W. 284. In Angelina & N. R. Co. v. Due (1914) Tex. Civ. App. —, 166 S. W. 918, where the plaintiff, while surfacing defendant's track, was struck by a work train operated by a lumber company engaged in building an exten

distinction taken by American judges between cases in which the contractor's acts involve an exercise of corporate franchises, and cases in which no such exercise is involved, was not adverted to. In fact this aspect of a railroad company's obligations to the public has apparently not been considered either in England or Scotland.

$5. Conflicting doctrines considered.

A collation of the decisions as they stand will show that there is no clear preponderance of judicial authority, either in favor of or adverse to the application of the theory of a nondelegable duty to cases in which the tort which occasioned the injury complained of was committed while the work of construction was in progress. In the opinion of the present writer the decisions which treat that theory as being controlling embody the more satisfactory doctrine. By none of the courts which have adopted the opposite doctrine has any convincing reason been suggested for holding that the duties which the acceptance of its franchise imposes upon a railroad company with relation to the construction of its plant, are not of the same absolute quality as those which rest upon it in respect of the operation of that plant. So far as appears, any distinction which may be predicated in this regard between the two categories of duties must be purely sion of the road, which was to be turned over to the defendant after it was completed, it was held that a verdict should have been directed for the defendant, because the evidence conclusively showed that the men operating the engine were not in its employ, but in that of the lumber company, and that the defendant was not even the owner of the railroad upon which the plaintiff was working at the time of the injury.

14 King v. New York C. & H. R. R. Co. (1876) 66 N. Y. 181, 23 Am. Rep. 37.

15 Central R. & Bkg. Co. v. Grant (1872) 46 Ga. 417.

16 North British R. Co. v. Leadburn R. Co. (1865) 3 Sc. Sess. Cas. 3d series, 343, 37 Scot. Jur. 163.

arbitrary. This broad consideration may fairly be said to afford a conclusive answer to the argument relied on by the courts whose decisions are reviewed in § 3, supra, viz., that a charter of the normal type does not impose upon a railroad company the duty of constructing its plant by the labor of its own servants and by means of its own instrumentalities. This circumstance does not of itself warrant the inference that the duties attached to the franchise which authorizes it to perform the work of construction are susceptible of being delegated to the contractor. Such an inference involves a palpable non sequitur. Manifestly it is possible without any logical inconsistency to affirm both the proposition that a company is at liberty to employ a contractor to execute the work of construction, and the proposition that, after having employed the contractor, it still remains liable for the proper performance of its duties.

II. Liability of a railroad company for torts committed by its lessee or li

censee.

$ 6. In general.

When considered with relation to the subject discussed in the present monograph, a lease of a railroad may be regarded as belonging to a class of contracts which has already been dealt with from a particular standpoint in § 44 of the monograph in 19 A.L.R. pp. 1172, et seq.-viz., contracts by which the contractor agrees to carry on the business of the contractee, or a portion thereof, for a definite or an indefinite period, and to perform such duties, service, and operations as may be incidental to the undertaking. But ordinary contracts of this nature, even when they

1 The early Ohio case cited in note 2, infra, is an explicit recognition of the similarity between the position of a lessee and of an independent contractor.

2 Gwathney v. Little Miami R. Co. (1861) 12 Ohio St. 92. The contract under review granted the right to lay tracks alongside those of the defendant, and to have the exclusive use of them for the purpose of making con

are drawn in the form of leases, are distinguishable from leases of railroads in this material particular-that leases of the latter description involve an assignment of public franchises. Consequently, in every instance in which it is sought to charge a lessor railroad company with liability for the torts of its lessee, the enforceability of the claim will depend mainly upon the answer to these questions: (1) Was the lease valid? (2) If it was valid, did it devest the lessor of its responsibility with respect to the matters out of which the alleged cause of action arose? The cases in which the right of action has been determined with reference to these criteria are reviewed in the following sections.

In many of these cases the expression "lease" is applied to contracts which, in substance, were merely licenses to operate trains over a certain road. As the elements to be considered in determining the enforceability of claims arising out of arrangements of this description are, in some respects, materially different from these which are controlling where the effect of leases providing for a complete surrender of a road is in question, it has been deemed advisable, for the purposes of classification, to include in the sections relating to leases only the cases relating to contracts which involved such a surrender.

In a case decided before the general acceptance of the doctrine that the duties correlative to corporate franchises are absolute, the liability of a railroad company for injuries caused by a nuisance created by a company to which it has surrendered possession of a portion of its right of way was denied on the broad ground that the land in question has passed out of its control.2

nections with the defendant's line. The plaintiff's injury was caused by the failure of the grantee to cover properly a trestle which the public were allowed to use as a pathway. The court relied upon cases which, like Clark v. Fry (1858) 8 Ohio St. 358, 72 Am. Dec. 590, proceeded upon the general doctrine as to the nonliability of an employer for the torts of an independent contractor.

$7. Lease unauthorized.

The doctrine applied by all the American courts is that the execution of an unauthorized lease by a railroad company does not operate so as to relieve it of its responsibility in respect of the performance of the duties which an acceptance of its franchise imposes upon it.1 The effect of this doctrine is that the lessor

"It is the accepted doctrine in this country that a railroad corporation cannot escape the performance of any duty or obligation imposed by its charter or the general laws of the state, by a voluntary surrender of its road into the hands of lessees. The operation of the road . . . does not change the relations of the original company to the public." Washington, A. & G. R. Co. v. Brown (1873) 17 Wall. (U. S.) 445, 21 L. ed. 675.

or

Corporations of a quasi public nature "incur certain duties and obligations to the public, which adhere firmly to the franchises granted, and cannot be separated from them without legislative consent." Green v. Coast Line R. Co. (1875) 97 Ga. 15, 33 L.R.A. 806, 54 Am. St. Rep. 379, 24 S. E. 814. "A railroad company is charged with certain duties to the public. It cannot devolve the exercise of its franchises upon another person corporation without the express consent of the state; and it has no implied power to lease its road and franchises, and thus affect the public. If it makes a lease, or licenses another to exercise its franchises in whole or in part, without express legislative authority, it remains liable for the acts of the lessee or licensee in such operation." Georgia R. & Bkg. Co. v. Haas (1906) 127 Ga. 193, 119 Am. St. Rep. 327, 56 S. E. 313, 9 Ann. Cas. 677.

"We think it may be stated, as the just result of these cases and on sound principle, that unless specially authorized by its charter, or aided by some other legislative action, a railroad company cannot, by lease or any other contract, turn over to another company, for a long period of time, its road and all its appurtenances, the use of its franchises, and the exercise of its powers, nor can any other railroad company, without similar authority, make a contract to receive and operate such road, franchises, and property of the first corporation, and that such a contract is not among

remains still liable, after the execution of the lease, for injuries occasioned by acts of the lessee which constitute a violation of those duties. The cases in which its applicability with respect to the claims of persons other than the servants of the lessor or lessee has been explicitly affirmed are collected in the footnote. The authorities bearing upon the extent

the ordinary powers of a railroad company, and is not to be presumed from the usual grant of powers in a railroad charter." Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. (1885) 118 U. S. 290, 309, 30 L. ed. 83, 92, 6 Sup. Ct. Rep. 1094 (a case which did not involve the right of action for a tort).

2 United States courts.

Washington, A. & G. R. Co. v. Brown (1873) 17 Wall. 445, 21 L. ed. 675 (lessor was held liable for the expulsion of a colored woman from a car on a road which was operated on joint account the receiver appointed for a portion of the road and by the lessees of the residue).

In Arrowsmith v. Nashville & P. R. Co. (1893) 57 Fed. 165, Lurton, J., remarked, arguendo: "Where a railway company leases its line without authority of law, such lease is void; and it will continue liable for all the negligence of the lessee affecting the public."

The liability of the lessor for the defaults of the lessee was also recognized in Welden Nat. Bank v. Smith (1898) 30 C. C. A. 133, 86 Fed. 398 (arguendo); and Van Dresser v. Oregon R. & Nav. Co. (1891) 48 Fed. 202 (passenger on train of lessee injured).

Alabama.-Rome & D. R. Co. v. Chasteen (1889) 88 Ala. 591, 7 So. 94 (arguendo).

California.-Lee v. Southern P. R. Co. (1897) 116 Cal. 97, 38 L.R.A. 71, 58 Am. St. Rep. 140, 47 Pac. 932 (arguendo); Johnson v. Southern P. R. Co. (1908) 154 Cal. 285, 97 Pac. 520 (buggy struck at crossing).

Connecticut.-Driscoll v. Norwich & W. R. Co. (1894) 65 Conn. 230, 32 Atl. 354 (arguendo).

Georgia. See cases cited in note 1,

supra.

Illinois. Ohio & M. R. Co. v. Dunbar (1858) 20 Ill. 623, 71 Am. Dec. 291 (plaintiff entitled to recover for injuries caused to live stock by un

of the remedial rights of such servants are reviewed in § 8, supra.

The doctrine predicating the lessor's liability is based upon two grounds, viz.

due delay in transportation); Pell v. Joliet, P. & A. R. Co. (1908) 142 Ill. App. 362, affirmed in (1909) 238 Ill. 510, 87 N. E. 542 (passenger injured on street car controlled by lessee).

Kentucky. Brooker v. Maysville & B. S. R. Co. (1904) 119 Ky. 137, 83 S. W. 117 (passenger injured on ferryboat operated by lessee railroad company).

Louisiana.-Muntz v. Algiers & G. R. Co. (1903) 111 La. 423, 64 L.R.A. 222, 100 Am. St. Rep. 495, 35 So. 624 (child on track of street railway company was struck by car operated by lessee).

Mississippi.-Buckner v. Richmond & D. R. Co. (1895) 72 Miss. 873, 18 So. 449.

Missouri.-Booth v. St. Louis, I. M. & S. R. Co. (1909) 217 Mo. 710, 117 S. W. 1094 (arguendo).

New York.-Abbott v. Johnstown, G. & K. Horse R. Co. (1880) 80 N. Y. 27, 36 Am. Rep. 572 (passenger injured on car of lessee); Bath Gaslight Co. v. Claffy (1896) 151 N. Y. 24, 36 L.R.A. 664, 45 N. E. 390 (arguendo).

Oregon.-Lakin v. Willamette Valley & Coast R. Co. (1886) 13 Or. 436, 57 Am. Rep. 25, 11 Pac. 68 (arguendo).

Pennsylvania. Van Steuben v. Central R. Co. (1896) 178 Pa. 367, 34 L.R.A. 577, 35 Atl. 992 (damage to property resulting from a fire caused by the emission of sparks from a locomotive); Hanlon v. Philadelphia & W. C. Turnp. Road Co. (1897) 182 Pa. 115, 37 Atl. 943, 3 Am. Neg. Rep. 606 (horse frightened by dummy engine).

South Carolina.-National Bank v. Atlanta & C. Air Line R. Co. (1886) 25 S. C. 216 (nondelivery of goods received for transportation); Hart v. Charlotte, C. & A. R. Co. (1890) 33 S. C. 427, 10 L.R.A. 794, 12 S. E. 9 (traveler injured by lessee's train at crossing); Davis v. Atlanta & C. Air Line R. Co. (1902) 63 S. C. 370, 41 S. E. 468 (fireman in employ of lessor was run over at a crossing, when he was not on duty); Smalley v. Atlanta & C. Air Line R. Co. (1906) 73 S. C. 572, 53 S. E. 1000, 6 Ann. Cas. 868 (traveler killed by train at highway crossing);

(1) "That where the power to sell a lease is not expressly conferred upon a public corporation, it will not arise by implication. The enumeration of the powers of a public corporation Harbert v. Atlanta & C. Air Line R. Co. (1906) 74 S. C. 13, 53 S. E. 1001 (traveler killed by train at crossing); Franklin v. Atlanta & C. Air Line R. Co. (1906) 74 S. C. 332, 54 S. E. 578 (lessee's trainmen failed to protect female passenger against assault).

In National Bank v. Atlanta & C. Air Line R. Co. (1886) 25 S. C. 220, where damages were claimed for the nondelivery of goods by the lessee company, the rule as to the effect of an unauthorized lease was declared to be the same both in actions ex delicto and in actions ex contractu.

Texas.-Woodhouse v. Rio Grande R. Co. (1887) 67 Tex. 416, 3 S. W. 323 (unjust discrimination in in freight charges); International & G. N. R. Co. v. Underwood (1887) 67 Tex. 589, 4 S. W. 216 (passenger on lessee's train injured by collision with another one); Central & M. R. Co. v. Morris (1887) 68 Tex. 49, 3 S. W. 457 (failure to transport freight); International & G. N. R. Co. v. Koehn (1888) 70 Tex. 582, 8 S. W. 484 (traveler injured by train at crossing); International & G. N. R. Co. v. Eckford (1888) 71 Tex. 274, 8 S. W. 679, 6 Am. Neg. Cas. 568 (passenger on lessee's train fell through trestle on which train had stopped); International & G. N. R. Co. v. Moody (1888) 71 Tex. 614, 9 S. W. 465 (fire destroyed carload of fruit at depot); East Line & R. River R. Co. v. Lee (1888) 71 Tex. 538, 9 S. W. 604 (passenger unlawfully expelled from lessee's train); East Line & R. River R. Co. v. Culberson (1888) 72 Tex. 375, 3 L.R.A. 567, 13 Am. St. Rep. 805, 10 S. W. 706 (arguendo); Trinity & S. R. Co. v. Lane (1891) 79 Tex. 643, 15 S. W. 77, 16 S. W. 18 (arguendo); Galveston, H. & S. A. R. Co. v. Garteiser (1895) 9 Tex. Civ. App. 456, 29 S. W. 939 (train struck hand car on which a servant of an independent contractor was riding); Ft. Worth Street R. Co. v. Ferguson (1895) 9 Tex. Civ. App. 610, 29 S. W. 61 (passenger on street car was killed when it collided with a freight car of a steam railway); Missouri, K. & T. R. Co. v. Owens (1903) Tex. Civ. App. -, 75 S. W. 582 (train struck servant of lessee on track, when he was not on

implies the exclusion of all others not necessary to the reasonable enjoyment of those conferred." 3

(2) "That where a corporation, like a railroad company, has granted to it by charter a franchise intended in large measure to be exercised for the public good, the due performance of those functions being the consideration of the public grant, any contract which disables the corporation from performing those functions, which undertakes, without the consent of the state, to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposes, is a violation of the contract with the state, and is void as against public policy."

duty); Texas & N. O. R. Co. v. Jones (1918) Tex. Civ. App. —, 201 S. W. 1085 (passenger injured on lessee's train).

Virginia. For cases in which the liability of the lessor was affirmed in respect of an injury inflicted after the railroad had been operated for several years by the trustees specified in a deed of trust, see Naglee v. Alexandria & F. R. Co. (1887) 83 Va. 707, 5 Am. St. Rep. 308, 3 S. E. 369; Acker v. Alexandria & F. R. Co. (1888) 84 Va. 648, 5 S. E. 688.

Lurton, J., in Arrowsmith v. Nashville & D. R. Co. (1893) 57 Fed. 165. The second reason mentioned by the learned judge was that embodied in the passage quoted in the text from the opinion in the Thomas Case.

Thomas v. West Jersey R. Co. (1879) 101 U. S. 71, 83, 25 L. ed. 950, 952. The precedent relied on was York & M. Line R. Co. v. Winans (1854) 17 How. (U. S.) 30, 15 L. ed. 27. There all the stock in a company chartered to build and maintain a railroad in Pennsylvania was taken by a Maryland company. The entire management of the road was committed to the latter company, which appointed all the officers and agents upon it, and furnished the rolling stock. In reference to this state of things, and its effect upon the liability of the Pennsylvania corporation for infringing a patent of Winans, the court said: "This conclusion [argument] implies that the duties imposed upon the plaintiff by the charter are fulfilled by the construction of the road, and that by alienating its right

For the purposes of the application of the doctrine the lessee.is regarded as being, in a juristic point of view, the agent of the lessor, so far as the conduct of the transportation is concerned. In one case it was held that this relationship of agency exists in such a sense as to render a service of process upon the lessee valid as regards the lessor.6

In England the effect of an unauthorized lease has apparently not been considered with relation to the enforceability of claims based on the torts of the lessee. But as such a lease has always been treated as void by the courts of that country in actions sounding in contract," it may reasonably be inferred that they will apply

to use, and its powers of control and supervision, it may avoid further responsibility. But those acts involve an overturn of the relations which the charter has arranged between the corporation and the community. Important franchises were conferred upon the corporation to enable it to provide facilities for communication and intercourse, required for the public convenience. Corporate management and control over these were prescribed, and corporate responsibility for their insufficiency provided as a remuneration to the community for their grant. The corporation cannot absolve itself from the performance of its obligations without the consent of the legislature."

For cases in which this conception was explicitly adverted to, see Lee v. Southern P. R. Co. (1897) 116 Cal. 97, 38 L.R.A. 71, 58 Am. St. Rep. 140, 47 Pac. 932, 1 Am. Neg. Rep. 208; Abbott v. Johnstown, G. & K. Horse R. Co. (1880) 80 N. Y. 27, 36 Am. Rep. 572; Murray v. Lehigh Valley R. Co. (1895) 66 Conn. 512, 32 L.R.A. 539, 34 Atl. 506.

• Van Dresser v. Oregon R. & Nav. Co. (1891) 48 Fed. 202. See, however, Chicago, B. & Q. R. Co. v. Weber (1905) 219 Ill. 372, 4 L.R.A. (N.S.) 272, 76 N. E. 489, § 10, note 3, infra.

East Anglian R. Co. v. Eastern Counties R. Co. (1851) 11 C. B. 775, 138 Eng. Reprint, 680, 7 Eng. Ry. & C. Cas. 150, 21 L. J. C. P. N. S. 23, 16 Jur. 249, 22 Eng. Rul. Cas. 21; Beman v. Rufford (1851) 1 Sim. N. S. 550, 61 Eng. Reprint, 212, 20 L. J. Ch. N. S. 530, 15 Jur. 914; Great Northern R.