
    Benjamin Gwathney v. The Little Miami Railroad Company.
    The defendant by a verbal arrangement made with the D., X. and B. Railroad Company, gave to the latter company the right to construct a track on the side of defendant’s road-bed for the purpose of connecting the road of the said D., X. and B. Company with defendant’s'road. Said connecting track passed over a bridge previously constructed by defendant for its track, and which foot passengers had been permitted to use for the purpose of transit. The plaintiff, in passing on foot, over said bridge at night, fell through the same, between the rails of the connecting track, by reason of its imperfect covering, and was injured. Held: That if the nuisance complained of was created solely by the D., X. and B. Company in the construction of said connecting track, and said company had the sole ownership, possession, and use of said track, the contract between the two companies giving the defendant no power of control in the construction or use thereof — the defendant can not be held liable for the plaintiff’s injury, although the defendant may have had a reversionary interest in the premises, subject to the easement of the D., X. and B. Company.
    Error to the district court of Greene county.
    The original action, in this case, was brought in the court of common pleas of Greene county by the plaintiff in error, to recover damages for injuries received by him from falling through a bridge built by defendant in error, on its road, across a small stream, near its depot, at Xenia; and which bridge being a footway for passengers, was, by the negligence of the defendant, left open and uncovered.
    
      The defendant answered, denying, generally, the grievances laid to its charge.
    The case came into the district court by appeal, and was tried by a jury, and 'the defendant obtained a verdict and judgment.
    A bill of exceptions was taken on the trial, embodying all the evidence, from which it appears, among other things, that the bridge in question was originally constructed by the de‘fendant, on the line of its road, on ground which it either owned in fee, or had appropriated for the construction of its .road; and that the road-bed was not, at that place, upon a street, or public higlrway; but that the defendant covered the bridge, upon laying down its track, with a close floor, and placed hand-rails on each side of its track, over the bridge, and that this track or road-bed of the defendant, passing over the bridge, furnished the shortest and most convenient route for persons on foot, in passing and repassing, between the depot and the town of Xenia, and was generally used for that purpose. That, a year or two before the occurrence of the accident to the plaintiff, the Dayton, Xenia and Belpre Railroad Company, wishing to make a connection of their road with the defendant’s road, near the defendant’s depot, made an arrangement with the defendant for that purpose, in pursuance of which, the superstructure of the bridge was widened, on the west side of the defendant’s track; the road-bed was widened at the sides of the bridge, by filling up with earth, near the abutments, and a track was thus constructed for and by the Dayton, Xenia and Belpre Railroad Company, on the west side of defendant’s, track, by means of which the desired connection was effected. The evidence also tended to show, that in laying the new track over the bridge, the close flooring was taken up, and the west hand-rail taken down,-and at the time of the injury to the plaintiff, there was a close floor over the bridge, extending, in width, from the east side of the bridge across the defendant’s track, and across the space between the two tracks (which was about seven feet) ; but the space between the rails of the new track was imperfectly covered with loose boards, through which the plaintiff fell; and that a portion of the new track had been laid by the defendant’s hands, but the whole was done at the expense of the Dayton, Xenia and Belpre Company, and that this company was, at the time of the accident, and for more than a year prior thereto had been, in the exclusive use, occupancy and control of said track.
    The evidence being closed, the court charged the jury, among other things, as follows:
    “ That originally, in the construction of its road-bed from the depot to Xenia, and in crossing the stream known as Shawner creek, the defendant was under no obligation to make a passway across the same for the public; but if the jury find that the defendant built the bridge, and covered it with plank, and graded their road-way from the depot to Xenia, so as to furnish a shorter and more convenient thoroughfare for persons who might desire to take the cars from its depot, and others in passing from the depot to Xenia, and from the latter place to the depot, and that the same had been used for such purpose for several years by the public, then the defendant would be liable to the plaintiff for any injury he might suffer, in passing over the bridge, by reason of its not having kept the bridge in such condition that it was reasonably fit for the purpose of travel, so long as the defendant permitted the public to use the said way as a thoroughfare for foot travel, and had the same in its possession, and under its control. That the conduct of the defendant, in regard to said bridge and way, if such as supposed, might be regarded as an invitation and license to the public to travel over said bridge, and while it continued, the defendant would be bound to keep the bridge in such condition that it might be safely used for that purpose. That if the defendant made an agreement with the Dayton and Belpre Railroad Company whereby the latter company was to have the use of so much of the ground of the defendant, as is covered by the tract of the Dayton and Belpre Company, including the side of the bridge, where the plaintiff received his injuries, for the purpose of constructing its track thereon; and if the defendant agreed to construct so much of the tract as lay this side of the bridge, and did the same, but that the Dayton and Belpre Railroad Company took up the covering of the bridge and laid its own track across the bridge, and left the same in the condition it was at the time the plaintiff fell through or off same, and that since the time of laying said track, and the taking up the part of the covering of said bridge, that part of said bridge, and the said track of said Dayton and Belpre Company, has been in the exclusive control and possession of the latter company — in such case, the defendant would not be liable to the plaintiff; and this would be so, although the agents of the defendant may have known of the condition of the bridge. That if the defendant agreed with the Dayton and Belpre Company to lay its track, and did lay it across the bridge and took up the covering of the bridge, and left the bridge in the condition it was at the time the plaintiff received the injuries complained of — in such case, the defendant would be responsible for the condition of the bridge at the time of the injury to the plaintiff, although the Dayton and Belpre Company may. have had the use, control and possession of that part of the bridge and track from the time of its construction to the date of such injuries.
    “ That the plaintiff can not recover, although the defendant may have been guilty of negligence in regard to the keeping the bridge in proper repair and condition, unless he was at the time of receiving his injuries in the exercise of ordinary care.”
    Thereupon the plaintiff asked the court to charge the jury:
    “ 1. That the defendant, after permitting the public to use said track, and cross said bridge over said culvert, as bound to keep the bridge or covering in such condition, that persons crossing would not be liable to fall through.” The court gave this charge, with this qualification : “ That such liability would not extend beyond so much of said bridge as wTas in the defendant’s possession and control, if the defendant did not originally create the nuisance.”
    “ 2. The plaintiff further asked the court to charge, that if the defendant permitted another railroad company to lay a railroad track on and over the west side of its culvert and permitted said other company to use the western track exclusively, still, if the defendant is the owner of the ground and track on which the culvert is built, the defendant is responsible for the condition of the bridge, although the opening through which the plaintiff fell, was over the western side of the culvert, used by said other railroad company.” Which charge the court refused to give as asked; but gave the same, with this qualification: “ That if the other company was in the exclusive possession of the western part of the bridge through which the plaintiff fell, under an arrangement or agreement for such possession and use, and did itself put and leave that part of the bridge in the condition it was at the time plaintiff was injured — in such case, the defendant would not be responsible for the condition of that part of the bridge.”
    “ 3. The plaintiff further asked the court to charge, that if the opening through the bridge complained of, was made by the Dayton, Xenia and Belpre Company in laying its track on the western side of the bridge, and the defendant permitted it so to remain, being the owner of the entire ground on which said culvert and traqks were built, the defendant is guilty of negligence in permitting such nuisance to remain.” The court refused to give this charge to the jury.
    To these several charges of the court, and to its refusal to charge as requested, the plaintiff excepted, and upon the rendition of the verdict, moved for a new trial, for the reason, among others, that the court erred in the charge given to the jury. This, motion was overruled, and judgment entered for the defendant.
    This judgment the plaintiff seeks to reverse, on the ground of error in the charge given to the jury — and in the refusal to charge as requested.
    
      JEüsberry &¡ Sexton, for plaintiff in error.
    
      J. J. Winans, for defendant in error.
   Scott, C.J.

We fully recognize the principle contended for by counsel for the plaintiff in error, in this case, that the owner of real property is responsible for all nuisances, created or continued thereon, either directly by himself, or indirectly by his agents, or others acting by his authority, and under his control. Whenever the relation of principal and agent, or master and servant, is shown to exist, the rule of respondeat superior applies, and he who has the power of control is held responsible for its exercise. But thé charge of the court below-does not appear to be in conflict with this rule of liability. On the contrary, it seems fully to harmonize with, and rest upon the very principle we have stated.

The court charged the jury, that if the nuisance complained of was originally created by the defendant, the plaintiff would have a right to recover, although at the time of the injury, the premises were in - the sole possession of another. And the charge contains no denial of the defendant’s liability for the acts of its agents, or person acting under its authority, direction or control.

The defendant’s charter expressly gave to other railroad companies the right to join and connect their respective roads with defendant’s road, on such terms as said companies might agree upon. It was, therefore, competent for the defendant to make such an agreement with the Dayton, Xenia and Belpre Company as would give the latter the right to lay its rails on the side of defendant’s road-bed, and to have the exclusive use of the same, when laid, for the purpose of making such connection. And after having thus parted with the possession and control of a portion of its land, for this lawful purpose, we know of no sound principle which can make the defendant responsible for the improper manner in which the Dayton, Xenia and Belpre Company may have exercised its power of control over the premises. Unless the defendant’s contract contemplated, or its execution necessarily involved the production of a nuisance, it can not be held answerable for the negligent and wrongful manner in which the Dayton, Xenia and Belpre Company constructed a track for its own sole use, upon premises no longer in the possession or control of the defendant. The rule of liability in such cases is sufficiently stated, with a reference to the leading authorities bearing on the subject, in the case of Clark v. Fry, 8 Ohio St. Rep. 358, and a further discussion of it is deemed unnecessary.

Whether the terms of the agreement between the two railroad companies, placed the construction and use of the connecting track, on which the alleged nuisance existed, under the sole control of the Dayton, Xenia and Belpre Company, and whether that company in fact created the nuisance, and had the sole possession and use of that track thence forward until the occurrence of the injury complained of, were questions of fact, which were properly left to be ascertained by the jury, from the evidence. If the evidence answered these questions affirmatively, then the jury was properly instructed to find for the defendant.

In relation to that part of the charge, which holds the defendant bound to keep the bridge in repair, so as to afford the means of safe transit for foot passengers, so long as the company permitted it to be used for that purpose, the plaintiff in error can have no just ground of complaint. The defendant was held responsible for the condition of the bridge, to the full extent of the defendant’s possession and power of control.

Judgment affirmed.

Sutliee, Peck, Gholson. and Bbinkerhoee, J J., concurred.  