
    WYLDE against THE NORTHERN RAILROAD COMPANY.
    
      Court of Appeals,
    
    1873.
    Evidence oe Negligence.—Joint and Several Liability.—Parties.—Refusal to Produce Evidence.
    Evidence of the sudden stoppage of a railroad train, is sufficient to sustain a finding of negligence, in an action by a passenger for injury caused thereby.
    
      It is not negligence in a passenger to leave his seat before the cars come to a stop on reaching his destination.
    Several railroad companies jointly interested in the traffic over their connecting line may be held jointly and severally liable for the negligent breach of a contract made by one of them, in its own name exclusively, for transportation oyer the common route.
    If a party refuses on notice to produce at the trial a written instrument material to the case, every inference warranted by the evidence in respect to the contents of the instrument should be indulged against him.
    Henry E. Wylde sued the Horthern Railroad Company of Hew Jersey and the Erie Railway Company of Hew York, to recover damages for injuries sustained by him when a passenger in a train owned and run by one or both of the companies over a route .consisting in part of the track of each.
    The Erie Railway Company, in October, 1870, issued to the plaintiff a commutation ticket, entitling him to a passage each way daily, between Jersey City and Hanuet, a station on the Piermont branch of the Erie Railway, until May 1, 1871.
    There was an indorsement on the ticket declaring that it was held subject to an agreement with the company, signed by the holder. It was issued at the office of the Erie Railway Company in Hew York, on the surrender by the plaintiff of a- commutation ticket for one year, between Jersey City and Granton,' a station on the Horthern Railroad, and on the payment of the additional charge for the carriage from Granton to Hanuet.
    The plaintiff, at the time the ticket was issued, signed an agreement in which he acknowledged the receipt from the Erie Railway Company of a commuta- ■ tion passenger ticket entitling him to passage in any regular passenger train of the company, over that por-' tion of its railway between Jersey City and Hanuet, subject to certain conditions stated, restricting the use, and prohibiting the transfer of the ticket, and making it void, on the violation by the plaintiff of the regulations contained in the agreement.
    The agreement stated that the plaintiff consented to be bound to the Erie Railway Company by the conditions, in consideration of the delivery of the ticket.
    The plaintiff, on the morning of the accident, took the regular passenger train at Nanuet for Jersey City, which ran on the track of the Erie Railway Company to Piermont, thence over the track of the Northern Railway Company to its junction with the track of the Erie Railway Company near Bergen tunnel, and thence about two miles over the track of the latter company to its depot at Long Dock.
    On entering the depot the locomotive was detached from the train. The plaintiff rose from his seat to button his coat in preparation for leaving the car.
    The cars moved on after the locomotive was detached, through the depot, aiid struck with great force a “bumper” at the end, throwing the plaintiff down, and over the arm of a chair behind him, causing the injuries which were the subject of this action.
    The answers of both the defendants admitted the existence of an agreement between the two companies, whereby the portions of their respective tracks in question were operated as one line. The Northern Railroad Company, however, alleged, that under that agreement, they had nothing to do with the management, operation and control of, or keeping in repair, the line, nor any of the trains, engines, or cars, or servants, and did not own any of the engines or cars, and were not interested in the sale of commutation tickets, except that they received a specified sum for each person carried over their part of the road.
    At the trial, the plaintiff, under a previous notice to produce the agreement, called for its production. The defendants failed to produce it, for the reason that it was a record which they claimed they were not bound to take from their offices.
    When plaintiff rested, the Northern Railroad Company moved for a nonsuit, and asked certain instructions, both of which were refused.
    The grounds of the motion and request on behalf of the Nbrthern Company were, briefly, that: 1. That Company made no contract with plaintiff, directly or indirectly; 2. That he contracted exclusively with the Erie Company ; 3. That there was no evidence that the Northern Company were carriers, but, on the contrary, the evidence tended to show that they were only owners and toll gatherers of a track; 4. That the casualty happened in the Erie depot, and in a train which, under the contract, was presumptively a train of the Erie Company, to a passenger who contracted with the Erie Company, for a passage between two stations, both' on its road, and that the name “ Northern R. R.” on tickets, time tables and labels, was presumptively, under the evidence, a designation of route, not a designation of the carrying company.
    The court submitted to the jury the question whether both the defendants entered into and were concerned in the contract for carrying the plaintiff at the time when he received his injuries, and instructed them that if they were jointly interested in the road, in running and managing the trains, and shared in the profits, they could be jointly held. The jury gave the plaintiff a verdict of fifteen thousand dollars against both companies.
    
      The supreme court affirmed the judgment, without rendering any opinion, and each defendant appealed to this court.
    
      John N. Lewis, for the Northern Railroad Company, appellants.
    I. The motion of the Northern Railroad Company for a nonsuit should have been granted. All authorities sustain the position that to make out the liability of one of several connecting companies for an injury sustained by a through passenger it must at ' least appear either—First. That the company sought to be charged contracted to carry him ; or, Second. That he was injured on their line, or in their carriage ; or, Third. That the negligence of their servants contributed to the injury. It is not true that all authorities agree that either one of these facts is sufficient, in the absence of either of the others, to hold a- company liable; and there are not wanting authorities,—such as Murch v. Concord R. R. Co. (9 Foster, 9), and Parker v. Rensselaer & Saratoga R. R. Co. (16 Barb., 315),— which hold to stricter rules. But we think that a careful examination of the authorities will show that in no case has a recovery been allowed where neither of these three elements appeared (Hood v. N. Y. & New Haven R. R. Co., 22 Conn., 1 ; Sprague v. Smith, 29 Vt., 421 ; Ellsworth v. Tartt, 26 Ala., 733 ; Straiton v. N. Y. & N. H. R. R. Co., 2 E. D. Smith, 184 ; Cary v. Cleveland & Toledo R. R. Co., 29 Barb., 35 ; Mytten v. Midland R. R. Co., 4 H. & N., 615 ; Briggs v. Vanderbilt, 19 Barb., 222 ; Bissell v. Mich. Southern & Northern Ind. R. R. Co., 22 N. Y., 258 ; South Carolina R. R. Co., 7 Rich., 201 ; Nelson v. Vt. & Canada R. R., 26 Vt., 717 ; Sawyer v. Rutland & Burlington R. R. Co., 27 Id., 370 ; Smith v. N. Y. & H. R. R. Co., 19 N. Y., 127 ; Schopman v. Boston & Worcester R. R., 9 Cush., 244 ; Illinois Cent. R. R. v. Kanouse, 39 Ill., 272 ; Wing v. N. Y. & Erie R. R., 1 Hilt., 235 ; Fairchild v. Slocum, 19 Wend., 329 ; Railway Co. v. Barron, 5 Wall., 90 ; Briggs v. Terrell, 12 Ired., 1 ; Fletcher v. Boston & Me. R. R. Co., 1 Allen, 9 ; Hunt v. N. Y. & Erie R. R. Co., 1 Hilt., 228 ; Knight v. Portland & C. R. R. Co., 57 Me., 202 ; S. C., 8 L. Reg. N. S., 654 ; Chicago & R. I. R. R. Co. v. Fahey, 52 Ill., 81 ; Thomas v. Rymney R. W. Co., L. J., 6 Q. B., 
      266.) The language of the best text writers recognizes these limitations of liability (Redf. Law of Railway, vol. 1, p. 591, § 3; Redf. on Carriers, p. 337, § 467; Pierce Am. R. R. L., 486-488). It is submitted that in the case at bar not only was there no evidence of any contract on the part of the Northern Railroad Company, nor of any injury on their line, nor of any negligence on the part of their servants ; but the evidence tended to show the contrary. First. There was no contract,with plaintiff, on the part of the Northern Railroad Company ; but, on the contrary, his contract was exclusively with the Erie Railway Company, (a.) The instrument signed by the plaintiff on the books of the Erie Railway constituted a contract between him and that company (Breese v. U. S. Telegraph Co., 48 N. Y., 132, affirming 45 Barb., 274 ; Lewis v. Great Western R. W. Co., 5 Hurlst. & N., 1867 ; Grace v. Adams, 100 Mass., 505 ; Wolf v. Western Union Tel. Co., 62 Pa., 87 ; Farnham v. Camden & Amboy R. R. Co., 55 Id., 53 ; S. C., 7 Am. L. Reg. N. S., 172). And his omission to read it, there being no pretense of fraud or misrepresentation, is not material (Breese v. U. S. Tel. Co., supra ; Western Union Tel. Co. v. Carew, 15 Mich., 525). The ticket issued under this agreement is nothing more than a token to indicate that the passenger may pass on undisturbed (Hood v. N. Y. & N. H. R. R. Co., 22 Conn., 12 ; Quimby v. Vanderbilt, 17 N. Y., 306). (5.) This contract was undoubtedly entire, and was exclusively with the Erie Company for passage over its road, in its .trains,, and subject to ' its control; and did not entitle the plaintiff to travel in the trains of the Northern Railroad Company, nor to pass over their road, except in the trains of the Erie Company. The Erie Railway Company undertook to be carriers for the whole distance, and thus became sole parties to the contract of transportation. The plaintiff umade no contract for transportation with any 
      
      other party,” and has “ no claim against any other ” (Fatman v. Cin., Ham. & Dayton R. R. Co., 2 Disney [Ohio], 248, 251). (c) The obligations and liabilities of each company are co-extensive with the lawful use of their own road, and extend no further (Sawyer v. Rut. & Burl. R. R. Co., 27 Vt., 377). And in a late English case it was held that the first company was the only one liable to be sued by the .principal even where the loss occurred upon the line of one of the other companies (Mytten v. Midland R. R. Co., 4 H. & N., 615 ; see also Pierce Am. R. R. Law, cited above ; Chicago & Rock Island R. R. Co. v. Fahey, 52 Ill., 81). (d.) In the present case the respondents relied below upon Bissell v. Michigan Southern & Northern Ind. R. R. Co. (22 N. Y., 258) ; Barrett v. Third Ave. R. R. Co. (45 Id., 628), and Champion v. Bostwick (18 Wend., 175 ; 11 Id., 572), for the proposition that the joint ownership of two roads under the agreement to run them as one, and the participation of both defendants in the avails of the traffic, establish a joint liability. An examination of those cases shows that they are perfectly consistent and harmonious with the principles above stated, (e.) Even if the plaintiff had purchased at the office of either company a through or coupon ticket for the whole route,. this would not make the companies jointly liable so as to render each responsible for injuries .occurring on portions of the line other than their own. Through coupon tickets are treated as distinct passenger tickets, and each company is liable only for its own part of the line, although it may have sold all the tickets (Sprague v. Smith, 29 Vt., 421 ; Knight v. Portland, Saco, &c. R. R. Co., 57 Me. ; S. C., 8 L. Reg. N. S., 654; Ellsworth v. Tartt, 26 Ala., 733 ; South Carolina R. R. Co., 7 Rich., 20). Under similar agreements for transportation of goods over several lines, together forming a continuous line of through transportation, where a rate of freight, fixed by mutual agreement, is ■ charged for the through service, collected by the carrier whose, line includes the end of the route, and divided between the three in an agreed proportion, it is held that no partnership or joint liability to shippers of goods is created (Gass v. N. Y., &c. R. R. Co., 99 Mass., 220 ; Darling v. Boston & Worc. R. R. Co., 93 Id., 295). Second. Defendant not only was not a passenger of the Northern Railroad Company, but was not on their line, nor in their charge, at the time of the injury, (a.) It is believed that none of the authorities sustain- a recovery in the absence of a contract except for an injury occurring on the defendant’s line (see cases under point I. above). If we resort to the abundant authorities in support of the same principles, which are to be found in the cases relative to the carriage of goods, the recent case of Root v. Great Western R. R. Co. (45 N. Y., 524, reversing 2 Lans., 199), clearly shows that in the absence of an express contract, the intermediate company, even if it acted as carrier on its own line, is not liable for a loss beyond its line (see also Hunt v. N. Y. & Erie R. R. Co., 1 Hilt., 228). (b.) Whatever evidence plaintiff may rely upon as showing that he was traveling, or supposed he was traveling, in trains or upon a road belonging to the Northern Railroad Company, relates more properly to the route than to the company. The words on the ticket and time table, Northern R. R. of New Jersey, are obviously a designation of route simply. (c.) The evidence relied on by plaintiff to show that he was in a train of this company is wholly insufficient. A mere sign on a building, or even the use to which it is applied, much less its reputation, is no evidence that the building was one whose title was required to be in defendant’s (Terry v. Mayor, &c. of N. Y., 8 Bosw., 504). (d.) Under the contract for commutation which plaintiff proved, only entitling him to passage in the trains of the Erie Company, and over its road, the presumption of law is that the train belonged solely to the Erie Company, and was controlled exclusively by it, and that the accident occurred on its road. Third. Were it proved that at the time of the accident the plaintiff was in a car belonging to the Northern Company, there is no evidence that any defect in the car, or any negligence on the part of the servants of the Northern Company, contributed to the injury (see point Second above). At most, it would be the case of a person lawfully in the car of these defendants, but under no contract with them; and in such a case an unexplained casualty without anything to indicate negligence on their part, is not a ground of recovery (see 1 Redf. Laws of Railways, 591, § 3 ; Fletcher v. Boston & Me. R. R. Co., 1 Allen, 9 ; Lamb v. Camden & Amb. R. R. Co., 46 N. Y., 271 ; Curtis v. Rochester & Syracuse R. R. Co., 18 Id., 534). The mere fact that a person is injured while riding in a railroad car, does not impose upon the company the burden of disproving negligence (Holbrook v. Utica & Schen. R. R. Co., 12 N. Y., 236).
    
      Thomas D. Hall, for plaintiff, respondent.
    I. The defendants are jointly liable to the plaintiff, and the motion of the Northern Railroad Company of New Jersey for a nonsuit, was properly denied. The joint ownership of the two roads; the agreement to run them as one ; and the participation of both defendants in the avails of the passenger traffic, furnish a stronger -foundation for their liability to parties dealing with them, or traveling on the said roads, than is presented in the authorities hereinafter referred to, where, upon varying grounds, the joint liability of connecting roads, or associated lines of travel, has been upheld (Champion v. Bostwick, 18 Wend., 175 ; S. C., 11 Id., 572 ; Bissell v. Michigan Southern & Northern Ind. R. R., 22 N. Y., 258 ; Schopman v. Boston & Worcester R. R. Co., 9 Cush., 24 ; Shearman & Redf. on Neg., pp. 304, 306, §§ 271, 272 ; Barrett v. Third Ave. R. R. Co., 45 N. Y., 628). 2nd. There is sufficient proof, independent of its admissions, to hold the defendant, the Northern Railroad Company of New Jersey, and to make proper and correct the denial of its motion for a nonsuit. The conclusion upon the admissions and proofs is clear, that the Northern Railroad Company of New Jersey contracted with the plaintiff as a commuter entitled to travel on the road and by the train on which he received his injuries ; and that it actually had, and represented and held out to the plaintiff and the public that it had, mutual and interchangeable relations and a community of interest and action with the Erie Railway Company, in the business and management of the.roads and trains on and by which the plaintiff was a commuter, and was a passenger when injured. Had the plaintiff contracted, or intended to contract, solely with the Erie Railway Company, the acts, representations, interest and admissions of the Northern Railroad Company of New Jersey in and with respect to the contract, would render it liable in this action (Bissell v. Michigan Southern & Northern Ind. R. R., 22 N. Y., 258 ; see also cases quoted above).
    II. The burden of proving that the train was not run or managed by them or their agents was on the defendants (Shearman & Redf. on Neg., p. 80, § 71).
    III. There was no negligence on the part of the plaintiff that caused, or contributed to, his injury (Shearman & Redf. on Neg., p. 319, § 281 ; Gee v. Metropolitan R. Co., 25 Eng. L. T. Rep., 822 ; Nichols v. Sixth Ave. R. R., 38 N. Y., 131 ; Willis v. Long Island R. R., 32 Barb., 298 ; S. C., 34 N. Y., 670 ; Gordon v. Grand-street & Newtown R. R. Co., 40 Barb., 546).
   Andrews, J.

[After stating the facts.]—That the relation of carrier and passenger existed at the time between the Erie Railway Company and the plaintiff is clearly established.

. The company had by express contract undertaken to carry the plaintiff during the time covered by the commutation ticket by rail, once in each day, from Nanuet to Jersey City. The ticket issued to him was headed “Northern R. R. of New Jersey,” showing that he was to'-be carried over the line of that road. The plaintiff entered the cars at Nanuet, and his right to a passage on that train upon his commutation ticket, was recognized. The injury happened in the depot of that company.

"The negligence of the company in the management of the train was found by the jury upon sufficient evidence.

It was negligence to allow the cars to proceed without retaining control of them, under circumstances which rendered a collision inevitable unless the motion was checked, and the company is responsible for injuries resulting from it.

There is no ground for imputing negligence to the plaintiff. It is probable that if he had retained his seat, the injury would not have happened. He had no notice of danger, and had a right to assume that the train would be stopped in the usual manner. The train had reached its destination, and the plaintiff left his seat with a view of leaving the car as soon as the train stopped. He did as passengers usually do, and what the company must have known they were accustomed to do, and the plaintiff could not have supposed that the act was inconsistent with safety (Nichols v. Sixth Ave. R. R., 38 N. Y., 131 ; Willis v. Long Island R. R., 34 Id., 670 ; Gee v. Metropolitan R. Co., 25 Eng. L. T. Rep., 822).

The liability of the Northern Railroad Company is contested, -on the ground that they were not in fact the carrier of the plaintiff, and had made no contract with Mm, and that he was at the time of the injury a passenger on the train of the Erie Railway Company, and was being carried under a contract with that company to which the Northern Railroad Company was not a party or privy.

The complaint is founded upon a breach of contract by the defendants, and the judge, at the trial, refused .to charge the jury upon the request of the counsel for the Northern Railroad Company, that no contract by that company with the plaintiff had been shown.

It must appear, in order to sustain the judgment against the Northern Railroad Company, that there was evidence from which the jury could have found that the defendants were joint contractors in issuing the commutation ticket and in carrying the plaintiff.

The contract with the plaintiff was on its face a contract with the Erie Railway Company. But it was competent for the plaintiff to show that it was made in behalf of both defendants. The designation in the agreement signed by him, of the Erie Railway Company as the party with whom he contracted, did not prevent him from showing that the two corporations were jointly concerned in the business of carrying passengers, and that there was a community of interest between them, in the sale of commutation tickets.

If they were copartners in this business, and jointly interested in the profits arising therefrom, then, in law, it was the contract of both ; and the evidence of their joint interest did not contradict the written contract, but simply identified the parties with whom it was made.

It is the right of a party in an action upon a con- ■ tract to pursue the real principals, and if any of them are undisclosed on the face of the agreement, they may be brought in when ascertained.

The relations existing between the defendants do not very clearly appear.

The Northern Railroad Company is a New Jersey corporation, and its road was built in 1856, from Jersey City to Piermont, for the purpose of connecting at the latter place with the Piermont branch of the Erie Railway. The evidence authorizes the inference that after the completion of the road it carried on the freight and passenger traffic, and its trains at first crossed the Erie road at Bergen tunnel, and ran into the depot of the New Jersey Railroad. For many years past this has been changed, and the passenger trains at the Jersey City terminus have run to and from the depot of the Erie Railway Company at Long Dock.

But the Northern Railroad Company has not, so far as it appears, discontinued the business of carrying passengers.

The station agent of the Erie Railway Company at Blauveltsville, on the Piermont branch of the Erie road, testified, that he sold tickets for the Northern Railroad, and made returns to its president.

There is no distinction in the passenger trains, which commuters may take.

The Northern Railroad Company have their office on Long Dock.

Commutation tickets are sold at this office for stations on either road on two days of each month, and on other days at the office of the Erie Railway in New York.

The plaintiff, in May, 1870, purchased at the office of the Northern Railroad the commutation ticket to Gfranton, which he surrendered at the office of the Erie Railway Company in October, when he procured the ticket he held at the time of the injury ; and this ticket, when it expired, he surrendered at the office' of the Northern Company.

The car in which the plaintiff was, at the time of the accident, was marked “Northern Railroad,” and one of the witnesses stated that the persons who assisted in taking the plaintiff from the cars were, as he supposed, employees of that road.

This proof, it must be admitted, is not very satisfactory to establish a joint interest in the nature of a co-partnership between the defendants, in the passenger traffic, and in the sale of commutation tickets. But it tends to show that the interests of'the defendants were consolidated, and that there were mutual and interchangeable relations, and a community of interest and action between them, in the running and management of the trains.

The defendants gave no evidence on the trial. It was admitted that the relations of the corporations to each other were defined by written contracts.

The defendants, upon notice to do so, refused to produce them.

The defendants knowing the truth and omitting to speak, every inference warranted by the evidence should be indulged against them.

There was some evidence of a joint contract by the defendants, and the judgment should be affirmed, with costs.  