
    RAILROADS — INTERLOCKING SWITCHES.
    [Franklin (2nd) Circuit Court,
    February 1, 1904.]
    Sullivan, Summers and Wilson, JJ.
    Toledo & Ohio Central Ry. Co. v. Charles E. Hydell.
    t. Leverman at Crossing is Sole Agent op Railroad Using Crossing at Particular Time.
    Railroad companies whose tracks cross each other .at grade may enter into a contract whereby one company shall maintain, at its sole expense, a competent leverman to operate a system of interlocking installed at the point of crossing under authority of Secs. 247 and 3333 Rev. Stat., subject, however, to the limitation that neither company can delegate to the other the performance of its statutory duty to third persons and the public at such crossing, or shift its responsibility to them for damages resulting from the negligence of the leverman in operating the interlockers. Hence, a leverman employed by one of such companies is, so far as third persons and the public are concerned, the agent of the particular company which may be using the crossing at any particular time, which company, is alone liable for the consequences resulting from the negligent operation of the interlocker at the time it is so using the crossing, although, as between the companies themselves, the leverman may only be the agent of the other company.
    
      2. Proper Party Defendant for Breach of Statutory Duty.
    Where a railroad company has neglected to perform a statutory duty owing to a third person and which it cannot delegate, it alone can be sued for the consequences arising from its nonperformance, and not another company which may have contracted with such company to assume its performance; a fortiori, where plaintiff is not in privity with such contract.
    Error to court of common pleas of Franklin county.
    C. T. Lewis .and Barger & Barger, for plaintiff in error:
    The persons operating the interlocking system at the time of this accident, both by contract and by operation of law, when signalling or performing any duty for The Pittsburg, C. C. & St. L. Ry. Q>., were the servants and agents of that company. Cleveland, C. C. & I. Ry. Co. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321] ; Mills v. Crange A. & R. Co. 2 McArthur 314; Wood, Mas. & Serv. Sec. 7; Patterson, Railway Acc. Law 138, 139; Wood, Railroads 1335; Wabash, St. L. & P. Ry. Co.. v. Wolff, 13 Ill. App. 437; Black’s Law & Practice in Accident Cases Sec-13;]; Wabash, St. L. & Pac. Ry. Co. v. Peyton, 106 Ill. 63-1 [46 Am. Rep. 705].
    One bound to perform a duty cannot relieve himself from liability from its nonperformance, by a contract he may make for its performance by another. Shearman & Redfield, Negligence Sec. lo; Story, Agency Sec. 543; Webb v. Railway Co. 5? Me. 117, 128.
    The towerman at the T. & O. C. and P. C. C. crossing was pro hac vice the servant of The P. C. C. & St. L. Ry. Co. and that company is liable for his negligence. Shearman & Redfield, Negligence Sec. 73; Oil Creek & A. R. Ry. Co. v. Kleighorn, 74 Pa. St. 316; Vary v. Railway Co. 42 .Iowa 246; Laughler v. Pointer, 5 Bam. & Cr. 539; Wabash, St. L- & P.. Ry. Co. v. Wolff, 13 Ill. App. 437; Wabash, St. L. & P. Ry. Co. v. Pey-ton, 106 Ill. 534 [46 Am. Rep. 705].
    The duty was owing by the Pan Handle company to maintain a watchman at the crossing, or an interlocker, as well as The T. & O. C. Ry. Co. This duty could not be delegated to any other person or company, and if the Pan Plandle saw fit to adopt or use a man in the general employment or special employment of another company, to perform this duty1' that devolved upon it, then it would be adopting such employe, .and whilst so employed he would become legally the employe of the Pan Handle company. Railway Co. v. Snyder, 45 Ohio St. 678 [17 N. E. Rep. 321],
    Even if it is assumed that the towermen were in the general employment of the T. & O. G, and that the Pan Handle had nothing whatever to do, either with their employment, the payment of wages, or the power to discharge them, still if that company expected these servants to perform a duty devolving upon them, they would become their employes exactly the same as if they had rented them from the general employer and were using them for the time being. 2 Thompson, Negligence 893; Kimball v. Cushman, 103 Mass. 194 [4 Am. Rep. 528] ; Wood v. Cobb, 95 Mass. (13 Allen) 58; Taylor v. Railway Co. 45 Cal. 323: Baltimore & O. Ry. Co. v. Walker; 45 Ohio St. 577 [.16 N. E. Rep. -1-75],
    There are numerous cases in which employes in the general service, of one company, were held to be the employes of another company, if at the time they were in the service of that company, or were performing for that company a duty which devolved upon it, viz.: Murry v. Currie, 6 I.,aw Rep. 22; Powell v. Construction Co. 88 Tenn. 692 [13 S. W. Rep. 691; 17 Am. St. Rep. 925].
    In the same case the court, referring to the cases of Rourke v. Colliery Co. 2 Law Rep. 208; Missouri Pac. Ry. Co. v. Jones, 75 Tex. 151 [12 S. W. Rep. 912; 16 Am. St. Rep. 879] ; Johnson v. Boston, 118 Mass. 144; Vary v. Railway Co. 42 Iowa 246; Ewan v. Lippincott, 47 N. J. Law 192 [54 Am. Rep. 148] ; Wabash, St. L. & P. Ry. Co v. Peyton, 106 Ill. 534 [46 Am. Rep. 705] ; Byrne v. Railway Co. 61 Fed. Rep. 605 [9 C. C. A. 666] ; Clark v. Geer, 86 Fed. Rep. 447 [32 C. C. A. 295; 57 U. S. App. 473]; Taylor v. Railway Co. 45 Cal. 323, 324.
    The towermeu were fellow servants of the plaintiff, and if the injury to the plaintiff was occasioned by their negligence, the plaintiff would be unable to recover of the Pan Handle company or of the defendant. Manville v. Railway Co. 11 Ohio St. 417.
    If the defendant has any liability in this case it can only be under the doctrine as has been held by this court in the case on the preliminary questions, that the plaintiff would have the right to sue both • or either of said companies; and on the theory that they were joint tort feasors, and that as such the}'’ were each liable to- the plaintiff. Such being the case, and the plaintiff having received satisfaction from the Pan Handle company, he thereby discharges the defendant. Pittsburg, C. C. & St. L. Ry. Co. v. Cox, 55 Ohio St. 497 [45 N. E. Rep. 641; 35 L. R. A. 507] ; Ellis v. Bitzer, 2 Ohio S9 [15 Am. Dec. 534],
    The same doctrine is clearly established in the case of Seither v. Traction Co. 125 Pa. St. 397 [17 Atl. Rep. 338; 4 L. R. A. 54; 11 Am. St. Rep. 905]; McCabe v. Railway Co. 23 Ky. Law 2328 [66 S. W. Rep. 1054] ; Raleigh (City) v. Railway Co. 129 N. C. 265 [40 S. E. Rep. 2] ; Ohio & M. Ry. Co. v. Dunbar, 20 Ill. 623 [71 Am. Dec. 291] ; Harden v. Railway Co. 129 N. C. 354 [40 S. E. Rep. 184; 55 L. R. A. 784; S5 Am. St. Rep. 747] ; Chicago & W. I. Ry. Co. v. Doan, 195 Ill. 163 ■[62 N. E. Rep: 826] ; Pennsylvania Co. v..Ellett, 132 Ill. 654 [24 N. E. Rep. 559] ; Louisville & N. Ry. Co. v. Breedens, 23 Ky. Law 1021 [64 S. W. Rep 667] ; Caruthers v. Railway Co. 59 Kan. 629 [54 Pac. Rep. 673; 44 L. R. A. 737] ; Perry v. Railway Co. 129 N. C. 333 [40 S. E. Rep. 191] ; Baltimore & Ohio Ry. Co. v. Charvat, 94 Md. 569 [51 Atl. Rep. 413] ; Lee v. Railway Co. 116 Cal. 97 [47 Pac. Rep. 932; 58 Am. St. Rep. 140] ; Perry v. Railway Co. 128 N. C. 471 [39 S. E. Rep. 27] ; Central of Georgia Ry. Co. v. Wood, 129 Ala. 483 [29 So. Rep. 775] ; Suburban Ry. Co. v. Balkwell, 94 Ill. App. 454.
    Assumed risk. Texas & Pac. Ry. Co. v. McLane, 24 Tex. Civ. App. 321 [62 S. W. Rep. 565] ; Baltimore & O. S. W. Ry. Co. v. Peterson, 156 Ind. 364 [59 N. E. Rep. 1044] ; Ortlip v. Traction Co. 198 Pa. St. •586 [48 Atl. Rep. 497] ; Hurst v. Railway Co. 163 Mo. 309 [63 S. W. Rep. 695; 85 Am. St. Rep. 539].
    The servant,- in order to recover for defects in the appliances of the business, is called upon to show that the appliances were defective; that the master had notice thereof or knowledge, or ought to have had itthat the servant did not know of the defect and had not equal means of knowing with the master. Coal & Car Co. v. Norman, 49 Ohio St. 598, 607 [32 N. E. Rep. 857] ; Coal Co. v. Estievenard, 53 Ohio St. 43, 44 [40 N. E. Rep. 725] ; Hesse v. Railway Co. 58 Ohio St. 167 [50 N. E. Rep. 354]; Wellston Coal Co. v. Smith, 65 Ohio St. 70, 82 [61 N. E. Rep. 143; 87 Am. St. Rep. 547] ; Southern Pac. Co. v. Yeargin, 109 Fed. Rep. 436 [48 C. C. A. 497]; Ortlip v. Traction Co. 9 Pa. Dist. Rep. 291; see also, Altha & Illingworth Co. v. Costello, 63 N. J. Law 27 [42 Atl. Rep. 766] ; Am. Dig. 1899-B, page 2966, Sec. 108; Bailey, Master’s Liability for Injuries to Servant 185; Railway Co. v. Spangler, 44 Ohio St. 471 [8 N. E. Rep. 467; 58 Am. Rep. 833],
    Negligence of master for failure to perform duty. Mattise v. Ice Mfg. Co. 46 La. Ann. 1535 [16 So. Rep. 400; 49 Am. St. Rep. 356] : Missouri, K. & T Ry. Co. v. Hamilton, 30 S. W. Rep. 679 (Tex. Civ. App.) ; Promer v. Railway Co. 90 Wis. 215 [63 N. W. Rep. 90; 48 Am. St. Rep. 905] ; International & G. N. Ry. Co. v. Cook, 16 Tex. Civ. App. 386 [41 S. W. Rep. 665] ; Texas & Pac. Ry. Co. v. Johnson, 89 Tex. 519 [35 S. W. Rep. 1042]; Jones v. Shaw, 16 Tex. Civ. App. 386 [41 S. W. Rep. 690] ; Lloyd v. Hanes, 126 N. C. 359 [35 S. E. Rep. 611] ; Union Stock Yards Co. v. Goodwin, 57 Neb. 138 [77 N. W. Rep. 357]; Pittsburgh Bridge Co. v. Walker, 170 Ill. 550 [48 N. E. Rep. .915] Wharton, Negligence Sec. 206; Texas & Pac. Ry. Co. v. Eberhart, 91 Tex. 321 [43 S. W. Rep. 510] ; George v. Clark, 85 Fed. Rep. 608 [29 C. C. A. 374; 56 U. S. App. 505] ; Wabash Ry. Co. v. Heeter, 7 Circ. Dec. 485 (14 R. 257, 267).
    It is not competent for the railroad company to stipulate with its employes at the time and as a part of their contract of employment that liability for negligence shall not attach to it. Railway Co. v. Spangler, 44 Ohio St. 471 [8 N. E. Rep. 467; 58 Am. Rep. 833], Also see the following cases: Roesner v. Hermann, 8 Fed. Rep. 782; Western etc. Ry. ■Co. v. Bishop, 50 Ga. 465; Kansas Pac. Ry. Co. v. Peavey, 29 Kan. 169 [44 Am. Rep. 630] ; Johnson v. Railway Co. 86 Va. 975 [11 S. E. Rep. . 829] ; Louisville & N. Ry. Co. v. Orr, 91 Ala. 548 [8 So. Rep. 360] ; Hissong v. Railway Co. 91 Ala. 514 [8 So. Rep. 776] ; 2 Thompson, Negligence 1025; 1 Cent. Law J. 465; Arnold v. Railway Co. 83 Ill. 273; Jacksonville S. E. Ry. Co. v. Southworth, 135 Ill. 250 [25 N. E. Rep. 1093] ; Purdy v. Railway Co. 125 N. Y. 209 [26 N. E. Rep. 255; 21 Am. St. Rep. 738]; Maney v. Railway Co. 49 Ill. App. 105; Runt v. Harring, 2 Mise. 105 [2I N. Y." Supp. 244]; James v. Hendree, 34 Ala. 488; Pullman Palace Car Co. v. Laack, 143 Ill. 242, 256 [32 N. E. Rep. 285; 18 L. R. A. 215] ; Capper v. Railway Co. 103 Ind. 305 [2 N. E. Rep. 749]; Lindvall v. Woods, 41 Minn. 213 [42 N. W. Rep. 1020; 4 L. R. A. 793].
    An act or duty which a master is bound to perform for the safety and protection of his servant cannot be delegated so as to exonerate him from liability. Fuller v. Jewett, 80 N. Y. 46 ; Plannibal & St. J. Ry. Co. v. Fox, 31 Kan. 586 [3 Pac. Rep. 320] ; Atchison T. & S. F. Ry. Co. v. Moore, 29 Kan. 632; Daves v. Railway 'Co. 98 Cal. 19 [32 Pac. Rep. 708; 35 Am. St. Rep. 133] ; Pennsylvania Co. v. Whitcomb, 111 Ind. 212 [12 N. E. Rep. 380] ; Mobile & M. Ry. Co. v. Smith, 59 Ala. 245, 246 ; Miller v. Southern Pac. Co. 20 Ore. 285 [26 Pac. Rep. 70]; Moon v. Railway Co. 78 Va. 745 [49 Am. Rep. 401] ; Corcoran v. Holbrook, 59 N. Y. 517, 519 [17 Am. Rep. 369].
    Risks that employe assumes. Baxter v. Roberts, 44 Cal. 187 [13 Am. Rep. 160] ; Patterson v. Railway Co. 76 Pa. St. 389, 390 [18 Am. Rep. 412] ; Drymala v. Thompson, 26 Minn. 40 [1 N. W. Rep. 255],
    Nash, Lentz, Addison & Fritter, for defendant in error,
   WILSON, J.

On January 4, 1901, Charles E. Hydell, who was at that time in the employ of The P. C. C. & St. L. Ry. Company as a brakesman, was injured by the derailment of a freight train on that road, and 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. & O. C. Company under a contract, for that purpose entered into with the Pennsylvania company, • in consideration of the right to cross the tracks of that road at grade.

Hydell filed his petition in the court of common pleas against the T. & O. 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. & O. 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. & O. 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 $7,000. 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 case 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. Sections 247, 247g and 3333 Rev. Stat.

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 levermen '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. Railway Co. 19 N. Y. 127 [75 Am. Dec. 305] ; Merrill v. Railway Co. 54 Vt. 200, and Hurlbut v. Railway Co. 130 Mo. 657 [31 S. W. Rep. 1051], 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 franchises, 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. Railway Co. 157 Mass. 399 [32 N. E. Rep. 362], and Buchanan v. Railway Co. 75 Iowa 393 [39 N. W. Rep. 663], are examples; but these authorities, in so far as they would seem controlling, are in conflict with Cleveland, C. C. & 1. Ry. Co. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321].

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 could not, under such a contract become iiable for the mismanagement of the Pennsylvania company’s track and trains at this crossing.

In the case of Cleveland, C. C. & I. Ry. Co. 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 cannot 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 lever-men, whose duty it was to operate, the interlocker, 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 this proposition. From a consideration of all the authorities it would seem there is no hard and fast rule which determines the question alike in all cases, 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 leverman, serving under the contract, was the agent of the T. & O. 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 inter-locker; that the jury might find the plaintiff, by entering upon the employment with knowledge of the fact that it did not employ a leverman, waived, any right of action he might otherwise have had on account of such negligence; and for that reason, the plea of settlement with €iat company would be no defense in this action. To this effect the court charged the jury.

The case 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. company 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 hot be found negligent in that respect, then the proposition that the leverman was the agent of the T. & O. C. company only, cannot 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. & O. C. company 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 the . Pennsylvania company may contract with the other company for the employment of lever-men to operate the interlocker, but that it cannot 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 hac 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 <?f the Pennsylvania company. Cleveland, C. C. & I. Ry. Co. v. Schneider, supra; Wabash, St. L. & P. Ry. Co. v. Peyton, 106 Ill. 534, 535 [46 Am. Rep. 705],

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 demurrer to the petition, in the opinion of this court, should have been sustained. The action sounds in tort, and not in contract. It'was not necessary to the plaintiff’s case, 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 lever-man 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 for 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 cannot 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.  