
    Ernest Schopman vs. The Boston and Worcester Railroad Corporation.
    A. railroad company, receiving upon its track the cars of another company, placing them under the control of its agents and servants, and drawing them by its locomotive, over its own road, to their place of destination, assumes towards the passengers coming upon its road in such cars, the relation of common carriers of passengers, and all the liabilities incident to that relation.
    The contract created between a railroad company and a purchaser of one of it? tickets, and the rights and liabilities of the parties to such contract, are the same, whether the ticket was purchased at one of the company’s stations, or at a station of a contiguous railroad, or of any other authorized agent of the company.
    
      This was an action on the case, to recover damages of the defendants, for an injury alleged to have been sustained by the plaintiff’s wife, while being transported as a passenger over the defendants’ railroad. It was tried in this court before Bigelow, J., by whom it was reported in substance as follows : —
    The writ avers, that the defendants received the plaintiff’s wife into their cars at "Worcester, to be transported as a passenger from that place to Boston, for a certain price paid them by the plaintiff; and that, while on the passage, she mei with the injury complained of.
    At the trial, it appeared that the plaintiff and Ms wife cami upon the defendants’ railroad, on the day of the accident, ii a car belonging to the Western railroad, which made part of a train which had come from Springfield that morning; that the plaintiff bought no ticket of the defendants, and paid them no money for his own or his wife’s passage, except as hereinafter stated; but, at some stage of the route between Worcester and Boston, surrendered to the defendants’ conductor tickets which he had purchased of the Western railroad corporation, at Albany or Springfield, entitling himself and wife to a passage over the defendants’ railroad from Worcester to Boston, which tickets were distinguished from Western railroad tickets by their color, and for which the conductor gave Mm Boston and Worcester railroad checks. It further appeared that, by an arrangement entered into between the defendants and the Western railroad corporation, the latter corporation sold tickets to passengers, entitling them to a passage over the Western railroad, and also over the railroad of the defendants to Boston, and that the ticket of the plaintiff’s wife was sold in pursuance of tMs arrangement; that the defendants received a certain portion of the price paid to the Western railroad corporation for each ticket so sold; that the regular fare or price of a passage in a first class car from Worcester to Boston was one dollar and twenty-five cents, and two tifirds of that price in a second class car, for passengers going only from Worcester to Boston ; but that for passengers who purchased tickets under said arrangement to go over the Western railroad, and also over the railroad of the defendants, the Boston and Worcester railroad corporation received one dollar and ten cents for first class passengers, and two thirds of that price for second class passengers. It also appeared that the Boston and Worcester railroad corporation took passengers who had purchased tickets under said arrangement from the Western railroad, in the cars of the Western railroad, and conveyed them to Boston, and took the cars back.
    It further appeared that the car in which the plaintiff and his wife were riding, and a portion of the remainder of the train, were Western railroad cars, and were drawn by the defendants’ locomotive, in connection with other cars belonging to the defendants, on the route of the train, to Boston, where it met with the accident.
    On this state of facts, the defendants contended that the relation of carrier and passenger, as alleged in the plaintiff’s suit, did not subsist between them and the plaintiff’s wife, iut that they were responsible only to the Western railroad corporation for any want of care in transporting the Western railroad corporation’s passengers; and that the measure of care, if any, which they were bound to exercise towards the plaintiff’s wife, was only that of ordinary diligence.
    But the presiding judge ruled, that, upon these facts, the relation of passenger and carrier did subsist between the plaintiff’s wife and the defendants, and that they were bound to the exercise of care and caution, as common carriers for hire.
    The defendants further asked the instructions of the judge to the point that, by the provisions of their charter and the general laws, they stood towards the public and the Western railroad corporation in the relation merely of proprietors of a toll-way, accountable for no more than ordinary care in the construction and maintenance of their track or road-bed ; supposing any accident to have occurred by reason of a defect in said track or road-bed, to passengers passing over their road in cars which they were compelled by law to draw for a toll or compensation; and that, if the jury should find that the plaintiff’s wife suffered injury only in consequence of a defect in their track, or the rails appurtenant to it, then they would not be responsible in this action, if guilty of no want of ordinary care.
    But the presiding judge instructed the jury, that the defendants stood in the relation of common carriers of passengers towards the plaintiff’s wife, and were responsible as such for any want of care and caution in the management and maintenance of their track and rails.
    Full instructions were given as to the legal duties and responsibilities of common carriers of passengers, to which no exceptions were taken.
    In reply to an inquiry from the judge, the jury, -’ho found a verdict for the plaintiff under these instructions, stated that they based it solely upon the negligence of the defendants, in permitting any elevation of the rails to exist, which gave rise to the accident.
    
      S. Bartlett, for the plaintiff,
    cited Angelí on Common Carriers, §§ 67, 98, 587; Cutler v. Winsor, 6 Pick. 335; Abbott on Shipping, 46, 47; Sproul v. Hemmingway, 14 Pick. 1; Ingalls v. Bills, 9 Met. 1; New Jersey Steam Navigation Co. v. The Merchants’ Bank, 6 How. 344; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251. The defendants were liable for the highest degree of care, and for any injury arising from a want of such care, case would lie against them by the passengers. See Grote.v. The Chester and Holyhead Railway Co. 2 Welsby, Hurlstone & Gordon, 251.
    
      T. Hopkinson, for the defendants.
    The relation of common carrier of merchandise does not exist between the plaintiff and defendants. St. 1845, c. 191, § 2; St. 1831, c. 72, § 14; Humphreys v. Reed, 6 Whart. 435; Catón v. Rumney, 13 Wend. 387 ; Pennsylvania, Delaware, & Maryland Steam Navigation Co. v. Dandridge, 8 G. & Johns. 248 ; Alexander v. Greene, 3 Hill, 9.
    There is no contract, express or implied, between the plaintiff and defendants. The defendants are obliged by law to carry the passengers, for a compensation to be paid by the Western railroad corporation. St. 1845, c. 195.
    
      The liability of the Western railroad corporation extends to Boston. Weed v. Saratoga & Schenectady R. R. Co. 19 Wend. 534; Watson v. Ambergate, Nottingham & Boston R. Co., 3 Eng. Law & Eq. 497; M-usckamp v. Lancaster & Preston Junction R. Co., 8 M. & W. 421; St. John v. Vcm Sauivoord, 25 Wend. 660 ; Yam Sautvoord v. St. John, 6 Hill, 157.
    As to the liability of common carriers of passengers, see Camden & Amboy R. R. Co. v. Burke, 13 Wend. 626 ; Laing v. Colder, 8 Barr, 479.
    The liability of proprietors of a road merely is for neglect of common and ordinary prudence. Lobdell v. New Bedford, 1 Mass. 153; Reed v. Northfield, 13 Pick. 94; Humphreys v. Reed, 6 Whart. 435 ; Catón v. Rumney, 13 Wend. 387 ; Alexander v. Greene, 3 Hill, 9.
    The common law liability being one of great rigor, should not be extended to new cases. Boyce v. Anderson, 2 Peters, 150.
   Dewey, J.

It is not contended, on the part of the plaintiff, that the defendants are chargeable to the extent of common carriers of merchandise ; but it is insisted that there existed the relation of carriers of persons, and that all the liabilities incident to that relation attached to the defendants, as respects the wife of the plaintiff, while being transported from Worcester to Boston. The plaintiff’s wife, for an injury to whom this action is brought, did not procure her original ticket for a passage from Worcester to Boston at any station office of the Boston and Worcester railroad, but at some point on the Western railroad; and at one of their offices, purchased a through ticket from Springfield, or some place further west; to Boston, entitling her to pass over the Western railroad and the Boston and Worcester railroad. Whether, at /the time of the purchase of the ticket, she received a Boston and Worcester railroad ticket, or only a through ticket to Boston, however that may be, she became, before reaching Worcester, by exchange of ticket, as practised by the conductors, the holder of a ticket of the Boston and Worcester railroad, and one entitling her to a passage from Worcester to Boston, and received by the conductor as such.

It is, in our view, quite immaterial where she may have obtained this Boston and Worcester railroad ticket. If the defendants adopt this mode of furnishing their tickets to agents to sell elsewhere, either at other railroad stations, or in connection with stages, or if they agree with another contiguous railroad company, that a ticket be issued which is to entitle the purchaser to pass on both roads, and which, upon being shown to the conductor of the Boston and Worcester road, is to have all the benefits of ordinary tickets, and to be received by him as such ticket, it is, to all intents and purposes, the same thing to the traveller as a ticket purchased at the office of the Boston and Worcester railroad; and the rights of the passenger and the liabilities of the company are the same as if the ticket had been purchased at the office of the Boston and Worcester railroad company, for the mere passage from Worcester to Boston.

Whether the Western railroad might also be charged for this injury, happening on the Boston and Worcester road, if the plaintiff had elected to resort to that company in the first instance, and if the facts had been that the Western railroad had sold to the plaintiff a through ticket, so called, we have no occasion to decide, as no such action is before us. The present case does not raise that question.

It is, however, urged that the liability of a passenger carrier ought not to attach to the Boston and Worcester railroad, as to passengers occupying seats in cars owned by the Western railroad, which pass from Worcester to, Boston. To present this point fully, however, it is to be borne in mind, that, although a car of the Western railroad is thus used by the passengers arriving by the Western railroad on their further transit to Boston, yet this car is at once transferred to the Boston and Worcester railroad, is -attached to their engine, and is wholly committed to the supervision and control of the Boston and Worcester road, their agents and conductors, and the control and agency of the Western railroad is wholly withdrawn. The conductor of the Boston and Worcester road demands of each passenger in these cars the usual fare for a passage to Boston, or a ticket entitling him to the same and, as is stated in the case, on through tickets, entitling to a passage from Boston to Albany or Albany to Boston, the defendants are allowed, by mutual arrangement, for each passenger, a stated and stipulated sum for carrying them over their road.

It is also further found, as a part of the facts of the present case, that the injury sustained by the plaintiff’s wife was not in any degree attributable to any defect in the car used on that occasion. The whole ground of complaint, for which this action is instituted, is for neglect of duty on the part of the defendants in their railroad track, which is alleged to have been out of proper repair; and by reason of negligence in this respect solely, the injury was sustained by the plaintiff’s wife.

It was urged further, on the part of the defendants, that, as the default complained of was a defect in the road track, the defendants should only be held responsible for ordinary care and diligence, agreeable to the rule applicable to common highways.

This point might be more appropriately presented in a case of negligence, as to the road track of one corporation used by another, paying tolls for the use, but running their own engine, cars, &c., and all under the exclusive control and direction of conductors and servants of their own. The question as to the degree of care required as to the road track would, in such a case, directly arise ; and the court might be called upon to say, whether the care and diligence demanded of a railroad corporation, as to its road track, could reasonably be deemed less, considering the peril to life and limb, which would be occasioned by negligence in that respect, than that high degree of care and diligence which the law requires of all carriers of persons; that is, whether the law would not require the highest practical care and oversight, as to safety of the road track, and exonerate the railroad company only from liability for injuries resulting from those latent defects which the most vigilant care and oversight could not guard against.

But, in the view we- have taken of the present ease, the defendants were the carriers of the plaintiff’s wife, and, as respects her, liable to all the duties of common carriers of persons. These duties, as respects a railroad carrying persons upon their own road, would require a suitable road, with rails properly laid, as well as suitable cars, engine, conductors, &c., the whole combined making the mode of conveyance for which the defendants were paid, and as to which their liability attached. In the various cases that have been the subject of judicial investigation, where damages have been claimed for injury to the person while travelling upon the railroad, we believe the rule has always been adopted, of holding the parties to the highest responsibility that attaches to carriers of persons.

In the present case, there' is nothing to take it out of the general rule. The result is, therefore, that judgment must be entered on the verdict for the plaintiff.

Judgment for the plaintiff.  