
    NEGLIGENCE IN THE OPERATION OF A RAILWAY INTERLOCKED.
    [Circuit Court of Franklin County.]
    The Toledo & Ohio Central Railway Company v. Charles E. Hydell.
    Decided, February 1, 1904.
    
      Negligence — Railways—Interlocking Devices at Crossings of, at Grade —Responsibility for Operation of — Can not be Shifted to Company Controlling the Operator — Agency—Parties—Privity of Contract.
    
    
      1. Where an interlocker is maintained at a crossing of two railroads at grade, it is competent for the companies to enter into a contract providing that the device shall be operated by one of them, subject to the limitation however, that the responsibility of the other company for the proper operation thereof on its own road is not thereby shifted, in so far as the public and third parties are concerned.
    2. No new liability arises upon such contract against the railroad companies, in favor of parties not in privity therewith; but each company is responsible to the public and third parties, for the full preformance of its statutory duty at such crossing.
    3. The leverman in control of the interlocker under such contract is, except as between the companies themselves, the agent and servant of the company whose road and trains he is, for the time being, assisting to operate.
    Wilson, J.; 'Summers, J., and Sullivan, J., concur.
   On tbe 4th day of January, 1901, Charles E. Hydell, who was at that time in the employ of the P., C., C. & St. L. Ry. Co. as a brakeman, was injured by the derailment of a freight train of that road on which he was serving, through the negligence of a leverman who was operating the interlocker at Mound Station, six miles west of Columbus, where the T. & O. C. Railroad crosses the Pennsylvania line at grade. The crossing and interlocker were maintained and operated by the T. & 0. C. Company under a contract for that purpose entered into with the Pennsylvania Company, in consideration of the right to cross the tracks at grade.

Iiydell filed his petition in the court of common pleas against the T. & 0. C. Company, setting out the contract between it and the Pennsylvania Company under which the interlocker was being operated at the time of the accident, the negligence of the leverman, and the extent of his injuries.

The defendant demurred to the petition for defect of parties defendant, and that it did not state a cause of action against the T. & 0. C. Company. The demurrer was overruled, and the defendant answered in the way of a general denial, and with an affirmative defense, alleging that the plaintiff had settled with and released the .Pennsylvania Company, which was liable, by accepting the benefits of its voluntary relief department, and had thereby released the T. & 0. C. Company, if it had been liable. The reply was, in effect, a general denial of the affirmative defense. Upon the trial of the case the plaintiff obtained a verdict for seven thousand dollars. A motion for a new trial was overruled, and judgment was entered on the verdict. A bill of exceptions embodying all of the evidence was taken, and the ease is brought into this court upon the whole record, seeking a reversal of the judgment.

At the time of the injury, which is the predicate of the action, it was the duty of the railroad companies crossing at grade, under the statute, to see that the crossings were put in and kept in repair; to employ a watchman at the crossing; to stop all trains at a given distance, and to cross only upon a given signal — unless, under a further provision of the statute, they installed and maintained, to the satisfaction of the commissioner of railroads and telegraphs, a system of interlocking, or other works or fixtures, which would render it safe for engines or trains to pass over such crossing without stopping. Revised Statutes, Section 3333, 247g.

Such an interlocking system was installed at this crossing under the contract of date July 24, 1893, hereinbefore mentioned. By its terms the T. & O. C. Company, among other things, agreed to ‘ ‘ erect and thereafter maintain and operate at its own expense, at the place of said crossing, an interlocking system which shall be satisfactory to the signal officer of the first party (the P., C., C. & St. L. Ry. Co.), and under the operation of which trains of either party may be permitted, under the laws of the state, to cross over said crossing without coming to a stop.”

The trains of both roads were being controlled at the crossing, by the interlocker operated under this contract, by lever-men employed and paid by the defendant company, and it was the negligence of one of these levermen that caused the injury.

The contention of the plaintiff below, defendant in error here, is that the leverman was the agent, exclusively, of the defendant company, and that, consequently, it alone is liable for the .injury. This contention is supported, in argument, by a long line of authorities, the most persuasive of which are, perhaps, the contracts for tracking privileges, such as Smith v. New York & Harlem Railroad Company, 19 N. Y., 127; Merrill v. Railroad Co., 54 Ver., 200, and Hurlbert v. Wabash Ry. Co., 130 Mo., 657. These cases are, we think, distinguishable however, in that it was the duty of the roads held to be liable, under the contracts, as well as under their franchise to keep the tracks or the machinery in repair, the failure to do which was the negligence complained of. Another class is the gates at crossing cases, of which Brow v. Boston & Albany Railroad, 157 Mass., 399, and Buchanan v. The Chicago, M. & St. P. Ry. Co., 75 Iowa, 393, are examples; but these authorities, in so far as they would seem controlling, are in conflict with Railroad Company v. Schneider, 45 O. S., 678.

The defendant’s claim is, first, that it and the Pennsylvania Company were without authority in law to enter into a contract as against the public and third parties, whereby one road should agree to perform the statutory duty of the other, and that, therefore, the defendant conld not, under such a contract, become liable for the mismanagement of the Pennsylvania Company’s track and trains at this crossing.

In the case of Railway Company v. Schneider, supra, it is said in the body of the opinion, page 696:

“It (the railway company) might, by proper stipulation in the agreement of the railroad company with which it contracted, require it to furnish competent servants for the transaction of its business, and hold it responsible for any breach of the agreement; but it can not by such contract, or by its failure to so contract, shift either the duty it owes to those using the street, or its responsibility to them.”

So here it was competent to contract for the services of efficient levermen, subject to the limitation that the Pennsylvania Company could not shift its responsibility, so far as the public and third parties were concerned.

But, secondly, it is contended that, notwithstanding this contract, and that under it the defendant was employing and paying the levermen whose duty it was to operate the inter-locker, when it was so operated for the benefit of the Pennsylvania Company, in the conduct of its trains on its road, the leverman was, for that time and purpose, the, agent of that company, or, at most, the joint agent of both companies. So that, in either event, the T. & O. C. Company is not liable in this action. We do not find it necessary to review at length the numerous authorities cited by counsel to support' thi,s proposition. From a consideration of all the authorities ¡it would seem there is no hard and fast rule which determines the question of agency, alike in all eases; but that the rule, in a marked degree, is made subservient to the facts in each case, and is fixed accordingly.

The trial court disposed of the case, and supported the judgment upon the theory that it was lawful for the railroad companies to enter into the contract for the employment, by one for the other, of competent agents to operate the interlocker; that the contract did not relieve the Pennsylvania Company from liability for negligence toward the plaintiff; that the lever-man, serving under the contract, was the agent of the T. & 0. C. Company, and not the agent of the Pennsylvania Company; that the Pennsylvania Company could, notwithstanding the contract, be held negligent because it had not kept a leverman in charge of the interlocker; that the jury might find the plaintiff, by entering upon the employment with knowledge of the fact that the Pennsylvania company did not employ a leverman of its own, waived any right of action he might otherwise have had on account of such negligence; and for that reason the plea of settlement with that company would be no defense in this action. To this effect the court charged the jury.

The ease thus made out would appear to be illogical. If it be lawful for the Pennsylvania Company to provide by contract with the T. & O. C. Co. for services of competent levermen to operate the interlocker, and such levermen do operate it, it is difficult to conceive how the company could still be negligent for failure to employ levermen. It had discharged that duty in a way the law permits, and in a way the court held it might do. To hold otherwise would be to deprive the contract, in that particular, of any legal status whatever so far as the plaintiff is concerned; and the court would be driven to the support of the first contention of the plaintiff in error, that the contract for the purpose of this case was null and void.

If the Pennsylvania Company could not be found negligent in that respect, then the proposition that the leverman was the agent of the T. & 0. C. Company only, can not stand with the proposition that the Pennsylvania Company could not contract against liability for negligence. For, not being negligent for failure to employ competent servants to operate the device, and not_ liable for the negligence of the servants of the T. & 0. C. Co. when they are doing the work of the Pennsylvania Company at the crossing, it is permitted to operate that particular part of its road without any liability for negligence; and this would be effected by. the contract.

"When it is conceded that it may contract wth the other company for the employment of levermen to operate the interlocker, but that it can not so contract as to relieve itself against negligence in the performance of that statutory duty, it follows that it must be held liable for the negligence of the servants, who by its procurement are performing that duty. They are pro Jiac vice, its servants. It has adopted and accepted them as such for the performance of that particular duty, at that time and place, by the terms of the contract; by accepting and relying upon their services; by issuing instructions to them, as the statute requires. The leverman whose negligence caused the injury was, at the time, the agent of the Pennsylvania Company. Railway Company v. Schneider, supra; W., St. L. & P. Ry. Co. v. Payton, 106 Ill., 535.

C. T. Lewis and Barger & Barger, for plaintiff in error.

Lentz & Addison, for defendant in error.

The relation of’the T. & O. C. Company to the operation of the Pennsylvania Company’s trains at this crossing was wholly contractual. The plaintiff was not in privity with the contract and can have no rights under it. What are the rights of the respective railroad companies under this contract, with reference to the accident, we are not called upon, to determine in this action.

It follows that the demurer to the petition, in the opinion of this court, should have been sustained, for that it did not state a cause of action against the T. & 0. Company. The action sounds in tort, and not in contract. It was not necessary to the plaintiff’s ease to plead the terms of the contract between the railroad companies, but proper, for the purpose of raising the question, whose agent was the negligent leverman, under the facts pleaded, which is the controlling question in the case.

Having resolved this question against the plaintiff, it follows, also, that there was error in overruling the motion to direct a verdict iior the defendant, which was interposed at the close of the plaintiff’s evidence; and error in the charge of the court.

The request by the defendant to charge, which was given by the court, is inconsistent with the general charge. It is therein stated to be the law that as the Pennsylvania Company could not contract away its responsibility, it would be responsible for the negligence of any one operating the system of interlocking for it by contract. This is a correct statement of the law, but it can not be reconciled with the general charge, which states that the leverman was the agent of the T. & O. C. Company and not the agent of the Pennsylvania Company for any purpose.

We find no other error upon the record. The judgment is reversed, and the cause remanded.  