
    THOMAS MILLS vs. THE ORANGE, ALEXANDRIA AND MANASSAS RAILROAD COMPANY.
    At Law.
    No. 9637.
    The defendant is a Virginia railroad-corporation, and had an agreement with a similar corporation in the District of Columbia, by which the defendant ran its trains over the track of the latter, into said District, and through the city of Washington, said trains being in the charge of the servants and agents of the defendants except the conductor, who was in the employment of the company whose track the defendant so used.
    Held, that the defendant is liable for a personal injury produced by carelessness on the part of defendant’s agents in running a train of cars through the city of Wasington on the track of the other company.
    STATEMENT OR THE CASE.
    The facts as they appear from the pleadings and testimony may he briefly stated. The defendant is a railroad corporation organized under the laws of the State of Virginia, and had an agreement with, the Washington and Alexandria Railroad Company, which operates a road in the District of Columbia, to use the track of the last-mentioned company to run their locomotives and trains of cars from the city of Alexandria to the depot of the Baltimore and Ohio Railroad Company in the city of Washington, and that this track passed over and along Maryland Avenue in said city of Washington. That the defendant’s trains of cars start from Lynch burgh, Virginia, and run direct to the Baltimore and Ohio depot in this city, carrying through-passengers both ways, north and south. At Alexandria a conductor of the said Washington and Alexandria Railroad Company is put on the train belonging to defendant, and continues on the train to the Baltimore and Ohio Company’s depot in the city of Washington, and that all the employés of the defendant continue on the train except the conductor, who is an employé of the Washington and Alexandria Company. The trains stop about five minutes at Alexandria, and then run direct to the said depot under the exclusive control of such conductor, according to the time and regulations of the Washington and Alexandria Company; the employés all start with the train at Lynchburgh, and continue with it both ways, except the conductor, as above mentioned.
    The plaintiff testified that he was employed for nearly a year previously to the occasion of the accident by the Washington and Alexandria Company; that his business was to go before the engines and carry a red flag between the Maryland Avenue depot and the Baltimore and Ohio depot; that he was to walk over the track directly in front of the engine and swing a red flag as the trains pass from one depot to the other.
    That the defendant ran four trains a day over this track, and that he carried the flag before defendant’s trains as he did before the others, and that he was in the employment of the Washington and Alexandria Company. That he carried the flag before defendant’s train of passenger-cars on the 15th day of March, 1872, and had to run to get ahead of the train, which was running at the rate of five or six miles an hour, and that while he was on the track where he was required to carry the flag, the defendant’s train of cars ran over him cutting his head and crushing his ankle and foot. This was between Sixth and Seventh streets in this city. That the conductor of the Washington and Alexandria Company was on thetrain as conductor at the time plaintiff was run over, and all the other employés on the train were the employés of the defendant.
    He was cross-examined and said:
    “ When the cow-catcher hit me I fell on my side; I ran to get on the track in front of the engine so they would not run so fast; they were running five or six miles an hour; I was struck first on my heel and thrown down, and then my ankle was crushed; I was not trying to get on the cow-catcher at the time the train run over me; I did not attempt to get on at all; when I first got on the track I was more than a rod ahead of the engine; the train was running faster than it had a right to run; I believe the engineer run over me intentionally ; I was trying to stop it; all the trains have- to run as I walk; they are not allowed to go faster, and never have gone faster than I have walked.”
    
      The plaintiff called two other witnesses and rested his case.
    Whereupon the defendant, by his counsel, before offering any evidence on his part, moved the court to instruct the jury to return a verdict in favor of the defendant, on the ground that, upon the evidence before the jury, the plaintiff was not entitled to recover against the defendant, to which motion the plaintiff’s counsel objected and insisted upon Ms right to present the case to the jury. But the court charged and directed the jury to render a verdict in favor of the defendant. To which instruction and direction the plaintiff, by his counsel, excepted. The only question upon the bill of exceptions is, whether the action should not have been brought against the Washington and Alexandria Company instead of the defendant.
    
      William B. Hawes for plaintiff:
    I.
    In this case, the court held that the plaintiff had sued the wrong company; that the action should have been brought against the Washington and Alexandria Company. This was error. Whether the plaintiff had or had not selected the proper party, was a question of fact for the jury to determine from the testimony. It is a proposition well settled that a court cannot refuse to allow the jury to pass upon the evidence, no matter how slight that evidence may be. The plaintiff was entitled to have his case considered by the jury.
    The following, among the numerous authorities on this subject, will settle this question : Drukley vs. Gregg, 8 Wall., 212; Vichman vs. Jones, 9 Wall., 197; Anderson, vs. Cape Fear Steamboat Company, 64 N. C., 339; Henry vs. Rich, 64 N. C., 379; Waugh vs. Ridgeway, 12 Ala., 398; Barney vs. Schneider, 9 Wall., 218; U. States Digest, N. Series, vol. 1, p. 705, sec. 98.
    II.
    In this case the defendant used the track of the Washington and Alexandria Company to run its cars through the city of Washington. The plaintiff was a servant of the Washington and Alexandria Company, and may therefore recover for the negligent management of the defendant’s train of cars. Sherman and Redfield on Negligence, 126 and 127; 27 Vermont, 370; 8 Allen, Mass., 441; 49 Penna., 186; Red. on Negl., p. 15, sec. 13.
    III.
    Where one railroad company uses the track of another similar corporation on which to run its cars, such company must be held to observe all such precautions as are required by the corporation whose track such company uses. U. S. Digest, New Series, vol. 1, p. 626, sec. 112; Webb vs. Portland Railroad Company, Me., 117.
    IV.
    In this case, the plaintiff was required, by the Washington and Alexandria Company, to carry a red flag in front of all engines that passed over its road. This requirement was not only a rule of its. road, but was required by the laws of the District of Columbia. Webb’s Digest of Laws, 474, sec. 6.
    It is now a settled rule of law that when one company runs its train over the road of another company, the flrst company is responsible for the entire route. Redfield on Railways, vol. 2, 277; Railway Company vs. Barron, 5 Wall., 90; Ayles vs. Southeastern Railway Company, Law Rep., 3 Exch., 146.
    
      R. T. Merrick for defendant.
   Mr. Justice Wylie

delivered the opinion of the court:

This action was brought by the plaintiff to recover damages for an injury produced by carelessness on the part of the defendant’s agents in running a train of cars by which he was knocked over and one of his feet crushed. '

The accident happened within the limits of the city, and on the track of the Washington and Alexandria Railroad Company.

At the close of the plaintiffs evidence-in-chief, the court instructed the jury to find a verdict for the defendant, on the ground that if the plaintiff was entitled to recover damages at all, it must be from the Washington and Alexandria Company, and not from this defendant, to which ruling of the court the plaintiff excepted.

(The evidence on behalf of the plaintiff will be found in the preceding statement of the case.)

The ground upon which the court held that the defendant was not liable, consisted of the single fact that between Alexandria and Washington “ the entire train was exclusively under the control of the conductor of the Washington and Alexandria Railroad Company, running exclusively according to the time and regulations prescribed by the Washington and Alexandria Company, and not subject to any other control.’’

The train, however, was a through-train from Lynchburgh to Washington, was owned and run by the defendants, and all the officers and servants upon it except only the conductor, whose duties began at Alexandria and terminated here, were those of the defendant. There was no evidence to show that this conductor had given any directions to the engineer as to the rate of speed to be given to the train, at or before the time of the accident, or had assumed to interfere with him in any manner. There was evidence tending to prove that the train was going at a greater rate of speed than it had a right to run, and that the accident was the result of misconduct on the part of the engineer alone. (See plaintiff’s evidence on cross-examination.) In some respects the duties of the conductor of a train are like those of the master of a ship; and those of the engineer resemble those of the pilot. The time of starting, the points at which to stop, the collection of fares, and the general control as to the rate of speed, belong to the conductor. But the duty of vigilance to avoid danger, the control of the engine, and the post of outlook against accidents, belong to the engineer. Should the order of the conductor be that the train be run at a certain rate of speed, it would be the duty of the engineer to comply with such order; but it is, on the other hand, also the duty of the engineer so to obey the order as that accidents shall be avoided, and to this extent his authority is paramount to that of the conductor.

In the present case there is no evidence tendiug to prove the slightest negligence on the part of the conductor. If there was negligence anywhere, it was the negligence or misconduct of the engineer which caused the injury to the plaintiff.

This brings us to the point as to which of these two companies the engineer was the servant or agent of at the time it happened. And on this point there exists no doubt upon the evidence. The train itself was that of the defendant; and the engineer and every other person employed were paid by the defendant, except only the conductor who had come upon it at Alexandria. The accident was the result of no neglect of duty, if any such neglect existed anywhere, on the part of the conductor, but solely on the part of the engineer. It follows that the liability, if any, falls upon the defendant, in whose service he was at the time.

Judgment reversed, and a new trial awarded.  