licensor. In other cases the liability of the licensor was affirmed without any explicit reference to the legality or illegality of the agreements involved.1

to, transfer their franchises to another company, and absolve themselves from the obligations connected therewith. The utmost that can be claimed for that section is that it gave the right to other persons to run engines and cars upon the defendants' railroad, subject to such rules and regulations as they might prescribe." Ohio.

In Quigley v. Toledo R. & Light Co. (1913) 89 Ohio St. 68, L.R.A.1918E, 249, 105 N. E. 185, Ann. Cas. 1915D, 992, where a boy was run over by a street car, the court thus stated its position: "The liability of the owning company rests upon the principle that, having received valuable rights and privileges to operate dangerous agencies in populous thoroughfares, it incurs obligations of high care in exchange therefor. It should not be permitted, in the absence of express statutory provision, to escape this responsibility by a contract with another company, under which it secured a share in the profits of the traffic, continued its own business, and retained the right and power to direct the management and operation of the cars of that other company."

3 Massachusetts.

In Ingersoll v. Stockbridge & P. R. Co. (1864) 8 Allen, 438, and Davis v. Providence & W. R. Co. (1876) 121 Mass. 134, where damage resulted to property from fires kindled by sparks emitted from the engines of trains operated by licensee companies, the liability of the licensor companies was affirmed with reference to the provision in Gen. Stat. chap. 63, § 101, which declares that "every corporation shall be responsible in damages to any person or corporation whose buildings or other property may be injured by fire communicated by its locomotive engines." In the former case the court reasoned thus: "The locomotive engine from which the fire originated was running upon the defendants' road, with their consent, in the transaction of the business for the accommodation of which their franchise was conferred. If it was run without the precautions necessary to make it safe to the property of oth

From the language used by the courts it would seem to be not an unreasonable inference that most of the decisions proceeded upon an assumed

ers, we can see no reason why the corporation owning and having the profit of the franchise should not be held primarily responsible, as in other cases of injury to persons and property."

Missouri.

In McCoy v. Kansas City, St. J. & C. B. R. Co. (1888) 36 Mo. App. 445, the court, having determined that, if the agreement in question was a lease to a foreign corporation, the Missouri statute operated so as to render the defendant liable (see § 16 note 1, supra), held (on rehearing) that, assuming the agreement to have been merely a license, the defendant's liability was still predicable: "If a company permits another to exercise its franchise, it is responsible for the negligence of that other. Whether this permission is by lease or license can certainly make no difference."

4 United States courts.

St. Louis, I. M. & S. R. Co. v. Chappell (1907) 83 Ark. 94, 10 L.R.A. (N.S.) 1175, 102 S. W. 893 (hay in warehouse ignited by sparks from locomotive). The court distinguished the cases in which it had previously denied the liability of a lessor for the torts of a lessee. See § 12, note 1, supra.

In Memphis, D. & G. R. Co. v. Richardson (1916) 126 Ark. 236, 190 S. W. 434 (cotton ignited by sparks from locomotive), both the licensor company and the lessee were held liable, but none of the cases of the type discussed in this subtitle were referred to.

Colorado.

In Willson v. Colorado & S. R. Co. (1914) 57 Colo. 303, 142 Pac. 174, where property adjacent to a station was injured by an explosion of dynamite, the court proceeded upon the

doctrine, of general scope, that the torts of the licensee company are imputable to the licensor.

broad doctrine that "a railroad company which permits another to make joint use of its track is liable for the negligence of the company to which the permission is granted."

Georgia.

"A railroad company which allows the trains of another chartered company to use its depot, and run over a short section of its track for approaching and leaving the depot, must protect its own passengers, who are themselves not out of place, against injury from the trains of such other company." Central R. & Bkg. Co. v. Perry (877) 58 Ga. 461 (passenger running to catch his train was struck by engine of licensee). See also Atlanta, B. & A. R. Co. v. Bramwell (1912) 138 Ga. 569, 75 S. E. 645 (negligent operation of engine).

Kentucky.

Louisville & N. R. Co. v. Breeden (1901) 111 Ky. 729, 64 S. W. 667 (traveler injured by train at highway crossing); O'Bannion v. Southern R. Co. (1908) 33 Ky. L. Rep. 436, 315, 110 S. W. 329 (child strayed on track and was run over).

Louisiana.

Hollins v. New Orleans & N. W. R. Co. (1907) 119 La. 418, 44 So. 159 (child killed while stealing a ride on a train).

North Carolina.

Aycock v. Raleigh & A. Air Line R. Co. (1883) 89 N. C. 321 (sparks from engine caused fire on adjacent property).

Pennsylvania.

In Sanders v. Pennsylvania R. Co. (1909) 225 Pa. 105, 133 Am. St. Rep. 857, 73 Atl. 1010, where a traveler was injured at a highway crossing by a train, the court laid down the general rule that a licensor company is liable for injuries caused by the negligence of a company enjoying a permissive use of its track under a traffic arrangement. But the defendant's liability was also affirmed on the ground that the proximate cause of the accident was the negligence of its gate

(2) Passengers on trains operated by the licensee. In two cases the right of action was predicated on the

S. W. 779, where a fire ignited on the defendant's right of way by sparks from the locomotive of another company operating trains over the road spread to plaintiff's premises, the liability of the defendant was regarded as being equally predicable, whether the second company was a lessee or a licensee.

In Gulf, C. & S. F. R. Co. v. Miller (1904) 35 Tex. Civ. App. 116, 79 S. W. 1109, affirmed in (1904) 98 Tex. 270, 83 S. W. 182, the licensor company was held to be liable for injuries received by a person who, while walking on the track, was struck by an engine.

Wisconsin.

In Jefferson v. Chicago & N. W. R. Co. (1903) 117 Wis. 549, 94 N. W. 289, the defendant was held liable for the value of the plaintiff's lumber which, while lying on the right of way, had been destroyed by a fire communicated from a defective locomotive, which belonged to a lumber company, and was used for hauling loaded cars onto the "loading track," and removing them when emptied. This operation was said to be "essentially an act in the course of the defendant's own business, and partly, at least, for its own benefit." The court reasoned thus: The defendant "has received its franchise to operate a railroad subject to certain well-defined duties as to the machinery which it uses. It cannot, while exercising those franchises, allow others to come in with defective machinery and use the quasi public highway jointly with it, and escape the duty laid upon it by its charter to use safe machinery. Such a rule would open a door by which public servants, while reaping all the pecuniary benefits of their franchises, could easily escape from a considerable portion of their correlative duties by licensing irresponsible third persons to transact certain portions of their business. In the present case it is clear that while the lumber company was moving its engine over the defendant's sidetracks it was operating the franchises of the defendant with its consent. It was as much the duty of the defendant company to see that this engine was not defective while using such tracks as to see that its own were not defective."

ground that the licensing agreement was unauthorized. In one case the court relied upon the analogy of the decisions which embody the theory that, where a lease is made in pursuance of an enabling statute which does not contain an exemption, the lessor company remains liable for the torts of the lessee. In other cases

5 Texas.

Texas & N. O. R. Co. v. Jones (1918)

Tex. Civ. App. -, 201 S. W. 1085 (car was backed against the one in which the plaintiff was standing, and caused a jolt which threw him on the floor).

In Collins v. Texas & P. R. Co. (1897) 15 Tex. Civ. App. 169, 39 S. W. 643, 2 Am. Neg. Rep. 241, the Texas & Pacific Railway Company made a contract to furnish a train to carry a party of excursionists over its own line and that of the Weatherford, Mineral Wells, & Northwestern Railway Company, the other defendant. Held, that both companies were liable for insulting language used by one of the excursionists to the wife of another. The court said: "It was a joint undertaking on the part of the two railroad companies to carry the excursionists from Fort Worth to Mineral Wells and return, and for this the Texas & Pacific Company was paid a single consideration of $200. The contract was made with the Texas & Pacific Company, for the joint benefit of both companies, and, the undertaking being a joint one on the part of both companies, and both sharing equally in the profits, it was in the nature of a partnership, and both companies were jointly and severally liable for any damages occasioned by the neglect of either in the performance of any duty or care imposed by law upon common carriers of passengers. It is well settled that a railroad company cannot lease its road to another, without the consent of the legislature, so as to absolve itself from its duties to the public as a common carrier, or avoid liability for damages occurring on its line of road to the public, although another company may be operating the road, and in full and exclusive control thereof, and, of course, selling the tickets to persons who are passengers thereon. And we can see no reason why the same rule should not apply in cases where the railroad company lets or

the liability of the licensor was affirmed without any reference to the legality or illegality of the licensing agreements. To the cases which belong to this category the remark made in the last sentence of the preceding paragraph is seemingly applicable.

(3) Passengers in trains operated hires its trains, or coaches, or engines to another corporation, company, or person for a day or trip." West Virginia.

6

Fisher v. West Virginia & P. R. Co. (1894) 39 W. Va. 366, 23 L.R.A. 758, 19 S. E. 578, 10 Am. Neg. Cas. 440. Chicago R. Co. v. Kramer (1916) 148 C. C. A. 147, 234 Fed. 245 (street car operated by the servant of the licensor ran into a stationary one operated by the servants of the licensee). Both the licensor and licensee were held liable by a Federal court sitting in Illinois, the evidence not being sufficient to show whether the servants of the licensor or those of the licensee were in fault.

7 Illinois.

Peoria & R. I. R. Co. v. Lane (1876) 83 Ill. 448 (passenger killed by overturning of baggage car, but recovery was denied on the ground that he was negligent in being on the car); Chicago & W. I. R. Co. v. Newell (1904) 113 Ill. App. 263, affirmed in (1904) 212 Ill. 332, 72 N. E. 416, 17 Am. Neg.

Rep. 210; Chicago Terminal Transfer

Co. v. Young (1905) 118 Ill. App. 226 (conductor of licensee's train assaulted passenger); Smith v. Chicago & E. I. R. Co. (1911) 163 Ill. App. 476 (pilot of passing engine struck passenger on station platform, and threw her under a car on another track). Kentucky.

In Chesapeake & O. R. Co. v. Osborne (1895) 97 Ky. 112, 53 Am. St. Rep. 407, 30 S. W. 21, where the plaintiff was ejected by force from an excursion train, for which he had purchased a ticket, the court laid it down that "public policy and the law alike forbid that a railway company shall be allowed to place its road, train, hands, and cars in the hands of, or under the control of, a stranger, for such purpose as is claimed in this action, and thus evade liability for the wrongs done by such person."

by the licensor.-The liability of the licensor to claimants belonging to Minnesota.

Heron v. St. Paul, M. & M. R. Co. (1897) 68 Minn. 551, 71 N. W. 706 (property damaged by fire). Oklahoma.

Toomer

In Midland Valley R. Co. v. (1917) 62 Okla. 272, L.R.A.1917D, 344, 162 Pac. 1127, where the claimant was held to be entitled to recover for an injury received while he was a passenger on a motor car, running on the defendant's track, the court based its decision on

grounds thus stated: "Under the authorities, and as a matter of elementary justice, license to use the track of a railway company may be established by continuous acquiescence on the part of the company, especially when the company, as in the case at bar, had open and notorious notice of the acts of the licensee and adopted no measures to prevent the public from being misled. We hold in such a case that the railway company owes passengers of the licensee the degree of care and protection due to passengers on the trains of the company; that such passengers are not mere licensees; that in such a case the company is liable for negligence of the licensee to the same extent as if there existed express permission or contract to so use the company's track; that a railway company, having obtained valuable franchises from the public, enters into an implied contract with the public that its franchises shall be used by itself, and that it will answer to the public for any abuse of such franchises by third persons, consented to or acquiesced in by the railway company. Whenever a railway company, by longcontinued silence and acquiescence, leads the public to believe, and to act upon the belief, that any person or corporation assuming to exercise its franchises, or any portion thereof, with knowledge on the part of the officers and agents of the company, has the consent of such railway company so to do, it may be compelled to respond in damages to third persons acting upon such belief, in whose favor a cause of action may arise for injury, brought about at the particular time of the injury either by the immediate negligence of the company, or by the negligent acts of those in whom the apparent authority existed

this category has been affirmed in several cases.8 So far as the reports

to exercise the franchise or franchises. Such silence and acquiescence of the company go to the question of negligence as well as to that of agency." The language used in the latter part of this extract, in so far as it may be construed as reflecting an assumption that the "belief" of the public that the licensor company had acquiesced in the running of the car upon its track was an essential element of the liability imputed, is apparently not supported by any of the other cases cited in this section, which affirm the liability of the licensor. The rationale of all those cases is simply that the duties correlative to the franchises conferred on the licensor are absolute and non-delegable.

South Carolina.

Carlton v. Southern R. Co. (1912) 93 S. C. 354, 76 S. E. 984 (traveler injured by train at highway crossing).

8 United States courts.

In Illinois C. R. Co. v. Barron (1866) 5 Wall. 90, 18 L. ed. 591, where the appeal was taken from a decision rendered by a judge sitting in the Illinois district, the court, proceeding upon the doctrine which it understood to be embodied in certain Illinois cases, held that a licensor company was liable for the death of a passenger on one of its trains, caused by a collision attributable to the negligence of the licensee's servants. With regard to this oft-cited case, it may be observed that, as none of the decisions relied upon related to the operation of a completed road by a licensee, it was only by way of analogy that they were precedents in point. Moreover, was stated in Heron v. St. Paul, M. & M. R. Co. (1897) 68 Minn. 550, 71 N. W. 706, the statement of facts is so meager that it is impossible to tell whether the lease or trackage agreement was or was not under legislative authority, or whether that fact was considered material. In Booth v. St. Louis, I. M. & S. R. Co. (1909) 217 Mo. 710, 117 S. W. 1094, it was remarked that the case "is probably responsible for much that has been written on that subject, but when read in the light of its own facts it does not justify all that has been written." Obviously, it is not, as has been assumed by various courts and

as

show, none of the decisions referred to turned upon the illegality of the licensing agreements. But in view of the fact that the contractual duty imposed upon a railroad company in respect of the safe carriage of its passengers is absolute, a consideration of this element, or any other that may be relevant where the licensor is sued by a person other than one of its own passengers, would seem to be unnecessary, if not inappropriate, in this class of

cases.

§ 20. Same subject. Liability denied. The grounds upon which the liabilauthors of textbooks, an authority for a general rule applicable to all classes of claimants.

In Denver & R. G. R. Co. v. Roller (1900) 49 L.R.A. 77, 41 C. C. A. 22, 100 Fed. 738, the liability of a Colorado company for an injury caused by the negligence of the servants employed by the receiver of the licensee company was affirmed on the ground that the licensor's duty to carry the plaintiff safely was absolute.

In Central Trust Co. v. Denver & R. G. R. Co. (1899) 38 C. C. A. 143, 97 Fed. 239, certiorari denied in (1900) 176 U. S. 683, 44 L. ed. 638, 20 Sup. Ct. Rep. 1025, a passenger on a train of the licensor company was held entitled to recover for an injury caused by a collision resulting from the negligence of the licensee.

In Barkman v. Pennsylvania R. Co. (1898) 89 Fed. 453, the ratio decidendi was that the injured person had purchased a ticket which entitled him to transportation on the trains either of the licensor or the licensee company. The court said: "The railroad company selling the ticket cannot relieve itself from the responsibility of exercising reasonable care for the safe conveyance of the passenger by placing him in charge of another company. It makes no difference whether they carry the passenger themselves, or permit another to do so. Great Western R. Co. v. Blake (1862) 7 Hurlst. & N. 987, 158 Eng. Reprint, 773, 31 L. J. Exch. N. S. 346, 8 Jur. N. S. 1013, 10 Week. Rep. 388."

Alabama.

Georgia P. R. Co. v. Underwood (1890) 90 Ala. 49, 24 Am. St. Rep.

ity of licensor companies has been denied in various cases are as follows: That a valid licensing agreement operates so as to relieve the licensor company entirely from liability to strangers for the torts of the licensee;1 that a licensing agreement does not cast upon the licensor any implied duty to alter its landings and starting places, and that, even if such a duty is to be implied, it does not inure to the benefit of a passenger on a train of the licensee; 2 that a licensor company is liable for injuries caused to a passenger on a train of the licensee by the structural defects of its road, but not for injuries result756, 8 So. 116 (passenger injured by collision with stationary car left on sidetrack by servant of licensee). Arkansas.

Biddle v. Riley (1915) 118 Ark. 206, L.R.A.1915F, 992, 176 S. W. 134. Kentucky.

In Big Sandy & C. R. Co. v. Blankenship (1909) 133 Ky. 438, 23 L.R.A. (N.S.) 345, 118 S. W. 316, 19 Ann. Cas. 264 (reiterating doctrine laid down in (1909) Ky., 118 S. W. 315 (not officially reported) (cars were left by a licensee logging company on a sidetrack, so close to the main track that a train of the licensee scraped against them), the result being that the plaintiff was injured. Held, that the licensor was liable.

Massachusetts.

Eaton v. Boston & L. R. Co. (1866) 11 Allen, 500, 87 Am. Dec. 730 (passenger injured by collision).

Ohio.

Maumee Valley R. & Light Co. v. Montgomery (1910) 81 Ohio St. 426, 26 L.R.A. (N.S.) 987, 135 Am. St. Rep. 802, 91 N. E. 181 (passenger injured by collision).

1 Clymer v. Central R. Co. (1866) 5 Blatchf. 317, Fed. Cas. No. 2,912 (passenger on train of licensee was injured); Cain v. Syracuse, B. & N. Y. R. Co. (1898) 27 App. Div. 376, 50 N. Y. Supp. 1, affirming (1897) 20 Misc. 459, 45 N. Y. Supp. 538 (traveler injured by train at crossing).

2 Murch v. Concord R. Corp. (1854) 29 N. H. 9, 61 Am. Dec. 631 (passenger fell through a trestle, when passing from a train of the licensee to a train of the licensor). The author