took, in a sale of the tickets, that they should be recognized and honored by the Lake Erie & Western Railway Company as good for transportation over its line. The only way in which the Lake Erie & Western Railway Company could recognize and honor the tickets was by carrying the passengers; in other words, by performing the contract. And this would be making an agent responsible that his principal should recognize the agency and carry out the contract. That is not the liability of an agent. An agent does impliedly contract that he is an agent, and has authority to do the act. But in this case there is no question that such was the fact. * * * That defendant might have made a contract for the carriage of passengers over the entire line, where its road was a part of the route, is not doubted; but the evidence did not tend to prove that any such contract had been made.

It is suggested that the defendant might be liable on the ground of a partnership between it and the Lake Erie & Western. But the evidence does not tend to prove partnership. The fact that each road sells through tickets, taking its own share of the price according to its mileage, does not constitute them partners. 25 Am. & Eng. Enc. Law, p. 1087. And corporations cannot enter into partnership with each other. Bishop v. Preservers' Co., 157 Ill. 284, 41 N. E. 765, 48 Am. St. Rep. 317.

There were other questions in the case, but, as there was no evidence tending to prove any contract different from that implied by law, the conclusion that defendant was not liable cannot be escaped, and the motion of the defendant should have been sustained. The judgments of the appellate and circuit courts will be reversed, and the cause remanded. Reversed and remanded."

Parts of the opinion are omitted.

Acc. Hartan v. Eastern R. Co., 114 Mass. 44 (1873). Compare Chicago & Alton R. Co. v. Dumser, 161 III. 190, 43 N. E. 698 (1896); Pa. Co. v. Loftis, 72 Ohio St. 288, 74 N. E. 179, 106 Am. St. Rep. 597 (1905), tickets bought in reliance on advertisement of through trip; Hutchins v. Pa. R. Co., 181 N. Y. 186, 73 N. E. 972, 106 Am. St. Rep. 537 (1905), ticket issued in response to request for through transportation; Talcott v. Wabash R. Co., 159 N. Y. 461, 54 N. E. 1 (1899), sample trunk checked through on payment of excess baggage charge; held on second trial, not a through contract, 109 App. Div. 491, 96 N. Y. Supp. 548, affirmed 188 N. Y. 608, 81 N. E. 1176 (1907); Cherry v. Kansas City, etc., Ry. Co., 61 Mo. App. 303 (1895), ticket containing no reference to connecting carrier; Central R. Co. v. Combs, 70 Ga. 533, 48 Am. Rep. 582 (1883).

In Atchison, etc., R. Co. v. Roach, 35 Kan. 740, 12 Pac. 93, 57 Am. Rep. 199 (1886), Johnston, J., said: "But where a railroad company sells a through ticket for a single fare over its own and other roads, and checks the baggage of the passenger over the entire route, more is implied, it seems to us, than the mere acceptance of the property marked for a destination beyond the terminus of its own line. The sale of a through ticket and the checking of the baggage for the whole distance is some evidence of an undertaking to carry the passenger and baggage to the end of the journey."

And see Kansas City, etc., R. Co. v. Washington, 74 Ark. 9, 85 S. W. 406, 69 L. R. A. 65, 109 Am. St. Rep. 61 (1905).

BLOCK v. FITCHBURG R. CO.

(Supreme Judicial Court of Massachusetts, 1885. 139 Mass. 308, 1 N. E. 348.) Contract, against the Fitchburg Railroad Company and seven other railroad corporations, described in the writ as "doing business together as a line for the purpose of carrying freight, under the name of 'Erie & North Shore Despatch,'" and having a usual place of business in Boston. * * Trial in the superior court before Staples, J., who ordered a verdict for the defendants. The plaintiff alleged exceptions, which appear in the opinion.

MORTON, C. J.10 The evidence at the trial tended to show that the several defendant corporations formed an association or company, under the name of "The Erie & North Shore Despatch," for the transportation of merchandise between Boston and Chicago; that the association had an agent in Boston who was authorized to receive goods at Boston for transportation over the line to Chicago, and to give bills of lading or contracts for transportation like the one upon which the plaintiff sues; that the plaintiff delivered goods to such agent, and received the bill of lading in suit; and that a part of the goods were lost between Boston and Chicago. By the bill of lading, "The Erie & North Shore Despatch" contracts to carry the goods from Boston by the Fitchburg Railroad, and thence by the Erie & North Shore Despatch to Chicago, and there to deliver them to connecting railroad lines to be forwarded to Denver, their destination. The several railroad companies which form the association are not named in the contract. It is a single and indivisible contract, by which the Erie & North Shore Despatch Line agrees to carry the goods to Chicago, the freight to be earned upon the delivery there to the connecting line. So far as the question in this case is concerned, it is unlike those cases where a railroad forming one link in a line of connecting roads between two points receives goods to be transported over its line and delivered to the connecting road, in which it has been held in this commonwealth that each railroad in the continuous line is liable only for loss or damage happening on its own road. Darling v. Boston & W. R. Co., 11 Ailen, 295; Gass v. New York, P. & B. R. Co., 99 Mass. 220, 96 Am. Dec. 742; Burroughs v. Norwich & W. R. Co., 100 Mass. 26, 1 Am. Rep. 78; Aigen v. Boston & M. R., 132 Mass. 423.

The defendants formed a company, and in its name made a special contract to carry the plaintiff's goods from, Boston to Chicago. They are, so far as the plaintiff is concerned, partners, and liable jointly and severally for any loss or damage to his goods between Boston and Chicago, unless they are exempted from liability by the terms of the contract. * * *

Exceptions sustained.11

10 Parts of the statement of facts and of the opinion are omitted.

11 See, also, Swift v. Pacific Mail S. S. Co., 106 N. Y. 206, 12 N. E. 583 (1887); Peterson v. Chicago, etc., Ry. Co., 80 Iowa, 92, 45 N. W. 573 (1890).

SECTION 2.—DELEGATION OF CARRIER'S DUTY

I. LIABILITY OF THE CARRier Who Delegates

BUCKLAND v. ADAMS EXPRESS CO.

(Supreme Judicial Court of Massachusetts, 1867. 97 Mass. 124, 93 Am. Dec. 68.) See ante, p. 19, for a report of the case.

HEGEMAN v. WESTERN R. CORPORATION.

(Court of Appeals of New York, 1855. 13 N. Y. 9, 64 Am. Dec. 517.) The action was brought to recover damages for injuries to the person of the plaintiff, alleged to have been caused by the negligence of the defendant. The cause was tried at the Rensselaer county circuit, held by Justice Wm. F. Alien, in October, 1852. The plaintiff proved that the defendant was the proprietor of a railroad extending from Greenbush to Boston; that in September, 1850, the plaintiff was a passenger on the railroad, having taken the train at Greenbush for Boston, and when near Hinsdale, Mass., an axle of the car in which he was riding broke, and three of the passengers in the car were killed and the plaintiff was seriously and permanently injured. * * * The jury returned a verdict in favor of the plaintiff, and assessed his damages at $9,900. The defendant appealed to this

court. * * *

* *

*

GARDINER, C. J.12 * * * Two questions were presented for the consideration of the jury. First, was there a test known to and used by others, and which should have been known to a skillful manufacturer, by which the concealed defect in the axie of the car could have been detected; and if so, then, secondly, was the injury to the plaintiff the consequence of that imperfection? There was evidence. tending to establish these facts, which the jury have found.

*

**

It was said that carriers of passengers are not insurers. This is true. That they were not required to become smelters of iron, or manufacturers of cars, in the prosecution of their business. This also must be conceded. What the law does require is, that they shall furnish a sufficient car to secure the safety of their passengers, by the exercise of the "utmost care and skill in its preparation." They may construct it themselves, or avail themselves of the services of others; but in either case, they engage that all that well directed skill can do

12 Parts of the statement of facts and of the opinion are omitted.

has been done for the accomplishment of this object. A good reputation upon the part of the builder is very well in itself, but ought not to be accepted by the public, or the law, as a substitute for a good vehicle. What is demanded, and what is undertaken by the corporation, is not merely that the manufacturer had the requisite capacity, but that it was skillfully exercised in the particular instance. If to this extent they are not responsible, there is no security for individuals or the public. * * * The judgment of the Supreme Court should be affirmed.13

THORPE v. NEW YORK CENT. & H. R. R. CO.

(Court of Appeals of New York, 1879. 76 N. Y. 402, 32 Am. Rep. 325.) ANDREWS, J.14 The defendant's counsel, upon the conclusion of the evidence, moved for a nonsuit, on the ground that the porter, by whom the alleged assault was committed, was not the servant of the defendant, and that the defendant was not therefore responsible for his acts.

18 Contra, Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537, 31 Am. Rep. 321 (1878). And see Nashville, etc., R. Co. v. Jones, 9 Heisk. (Tenn.) 28 (1871). In Marney v. Scott, [1899] 1 Q. B. 986, an action by a longshoreman against the charterer of a ship for injury received by reason of the defective condition of a fixed ladder leading to the hold, Bigham, J., said: "I think that a man who intends that others shall come upon property of which he is the occupier for purposes of work or business in which he is interested owes a duty to those who do so come to use reasonable care to see that the property and the appliances upon it which it is intended shall be used in the work are fit for the purpose to which they are to be put, and he does not discharge this duty by merely contracting with competent people to do the work for him. If the parties with whom he so contracts fail to use reasonable care and damage results, the occupier still remains liable. * The effect of the authorities is correctly and clearly stated in Pollock on Torts (5th Ed.) at page 477: The duty is founded not on ownership, but on possession—in other words, on the structure being maintained under the control and for the purposes of the person held answerable. It goes beyond the common doctrine of responsibility for servants, for the occupier cannot discharge himself by employing an independent contractor for the maintenance and repair of the structure, however careful he may be in the choice of that contractor. Thus the duty is described as being impersonal rather than personal. Personal diligence on the part of the occupier and his servants is immaterial. The structure has to be in a reasonably safe condition so far as the exercise of reasonable care and skill can make it so.' And on page 482: The possession of any structure to which human beings are intended to commit themselves or their property, animate or inanimate, entails this duty on the occupier, or rather controller. It extends to gangways or stagings in a dock to a temporary stand to ships.'

*

*

to carriages traveling on a railway or road Acc. Hyman v. Nye, [1881] 6 Q. B. D. 685, carriage with driver hired at livery stable.

A railroad company is liable to a passenger for injury caused by a defect in a bridge or embankment due to neglect of the contractor who built it. Grote v. Chester, etc.. Ry. Co., 2 Ex. 251 (1848); Philadelphia, etc., R. Co. Anderson, 94 Pa. 351, 39 Am. Rep. 787 (1880). Or for the defective condition of a station or of tracks which it uses, though under the control of another company. Peniston v. Chicago, etc., R. Co., 34 La. Ann. 777, 44 Am. Rep. 444 (1882); Buxton v. N. E. Ry. Co., L. R. 3 Q. B. 549 (1868).

14 Part of the opinion is omitted.

The plaintiff was a passenger on the defendant's train. He entered the cars at Syracuse, with the intention of riding in one of the ordinary cars to Auburn. He passed through the two ordinary cars. attached to the train, and finding no vacant seat passed into the drawing room car, and when called upon by the porter to pay the extra charge for a seat in that car, declined to pay the sum demanded, for the reason that he could find no seat elsewhere, but expressed a willingness to leave the car, whenever he could get a seat in the other cars. The porter thereupon attempted to eject the plaintiff from the car, and for this assault the action is brought.

The proof shows that all the seats in the two ordinary cars were occupied, and that several persons were compelled to stand in the passageway, and others were seated on the woodbox, for want of other accommodation. The ground upon which the motion for nonsuit was made assumes that, under the circumstances, the plaintiff was justified in going into the drawing room car, and that the act of the porter, in attempting to eject him, was an unjustifiable assault, but the claim. is made, and the exception to the refusal to nonsuit is sought to be supported, on the ground that the porter was the servant of Wagner, the owner of the drawing room car, and was not, in fact or law, the servant of the defendant.

If the right of the plaintiff to maintain this action depends upon the existence of the conventional relation of master and servant, between the defendant and the porter at the time of the transaction in question, the action cannot be maintained. The porter was in fact the servant of Wagner. Wagner employed him, paid him, and could at any time discharge him. His duty was to take charge of the drawing room car on the train, assign seats to passengers desiring seats therein, and collect and receive the sums charged therefor. He was instructed by Wagner to remove from the car persons who refused to pay the extra fare, and looking at the contract of employment only, he was, in attempting to remove the plaintiff, acting as Wagner's

servant.

The general principle is well settled, that to make one person responsible for the negligent or tortious act of another, the relation of principal and agent, or master and servant, must be shown to have existed at the time, and in respect to the transaction between the wrongdoer and the person sought to be charged. *

*

The business of running drawing room cars in connection with ordinary passenger cars has become one of the common incidents of passenger traffic on the leading railroads of the country. These cars are mingled with the other cars of the company, and are open to all who desire to enter them, and who are willing to pay a sum in addition to the ordinary fare, for the special accommodation afforded by them. They are put on presumably in the interest of the road. They form a part of the train, and the manner of conducting the business is an invitation by the company to the public to use them, upon the