
    Mary Quested vs. Newburyport & Amesbury Horse Railroad Company.
    Suffolk.
    March 14.
    July 25, 1879.
    Morton & Endicott, JJ., absent.
    The charter of a horse railroad corporation provided that the corporation should be liable for any injury any person might sustain by reason of the carelessness or misconduct of its agents or servants. A subsequent statute authorized it to lease its road and franchise, and to contract with any “responsible” person for the management of its road, but provided that such lease or contract should not release or exempt the corporation from any duty or liability to which it would otherwise be subject. The corporation leased its road, the lessee providing horses, cars and servants. By the negligence of a servant of the lessee a passenger was injured. Held, that an action for such injury could be maintained against the corporation.
    Tobt for injuries received by the plaintiff whilst a passenger in a car drawn over the defendant’s railroad, alleged to have been caused by the carelessness and negligence of the servants in charge of the car. The declaration contained two counts: the first setting forth that the injury was caused by the servants of the defendant; and the second, that it was caused by the lessee of the railroad, who was operating the same at the time the injury was received by the plaintiff.
    At the trial in the Superior Court, before Brigham, C. J., it appeared that the defendant corporation was duly established by the St. of 1864, e. 53, and was at the time of the injury the owner of the railroad, and of the franchise thereof, and the appurtenances thereto belonging; that, under the power conferred by the St. of 1873, e. 49, the defendant leased its railroad, franchise and appurtenances to Enoch T. North end, and contracted with him for the operation of the railroad by an instrument in writing, the terms of which, so far as now material, appear in the opinion; that Northend, as lessee, was operating the railroad, at the time of the injury, with cars and horses owned, and by servants employed, by him.
    The judge thereupon ruled that the action could not be maintained; and directed a verdict for the defendant. The plaintiff alleged exceptions.
    P. H. Cooney, for the plaintiff.
    
      R. M. Morse, Jr., for the defendant.
   Soule, J.

The defendant corporation was the owner of the road on which the plaintiff was a passenger when injured, and the owner of the franchise to use the road for carrying passengers for hire. With this franchise went the liability of the defendant to compensate all its passengers injured by the negligence of its servants or agents. This liability does not grow out of the statute provision to that effect in its charter, alone, but is one which rests on all carriers of passengers. Their duty is to use ordinary care for securing the safety of their passengers, and- injuries caused by the want of such care are injuries caused by negligence, for which the injured person has a remedy by action, independent of statute.

The defendant, by leave of the Legislature, leased its road to one ISTorthend, who undertook to do the whole business for which the defendant corporation was created, and to indemnify the defendant against loss by reason of his negligence in managing the road, during the term of the lease. The injury to the plaintiff occurred during that term, and while the lessee was in control and possession of the road; and the defendant contends that the negligence which caused the injury was, therefore, not its negligence, and that no action can be maintained against it.

The charter of the defendant made it subject to all general laws which were in force when it was granted, and to all which might thereafter be in force, relative to horse railway corporations. St. 1864, e. 53, § 13. It had no right to lease its road and confer on an individual the power to manage it for his own profit, without special authority from the Legislature, as such right was not given by the charter. St. 1871, o. 381, § 31. That right was conferred by the St. of 1873, e. 49, which provides that it “ may lease its road and franchise and contract with any responsible parties for the operation of its road; but such lease or contract shall not release or exempt said company from any duties, liabilities or restrictions to which it would otherwise be subject.” The effect of this provision is, that the defendant has the same liability to compensate persons injured in the operation or management of the road, while the lease is in force, which it would have had if the injury had been sustained while the corporation was managing its own road. It was intended by the Legislature that its creature, to which it had given the franchise to be a corporation and to build and manage a railway for profit, should not be permitted to transfer its powers and duties to another, so as to escape the liabilities and responsibilities properly attaching to the franchise. And it is no answer to this to say that the enabling act calls for a “ responsible ” lessee, and that such lessee is liable for injuries caused by his negligent management, and that there is no good reason why the injured party should have a remedy against two. The “ responsibility ” of the lessee was to be judged of only by the defendant, so that there is no protection to the public in that feature of the act; and that an injured person may have a right of action against either the owner or lessee of a railroad has been distinctly recognized. Ingersoll v. Stockbridge Pittsfield Railroad, 8 Allen, 438. Davis v. Providence & Worcester Railroad, 121 Mass. 134.

We are of opinion, therefore, that the ruling that the action could not be maintained was erroneous ; and that theré must be a new trial. jExceptions sustained. 
      
       Section 8 of the St. of 1864, c. 63, provides that the corporation “ shall be liable for any loss or injury that any person may sustain, by reason of any carelessness or misconduct on the part of its agents or servants in the construction and management of its road.”
     