Page:Federal Reporter, 1st Series, Volume 9.djvu/645

 630 PEDBBAIi BEPOBtBR. �the other carriers, The flrst carrier undertakes the service for the entire transit, and the others are but the agents of the first, to carry out the uiider- taking ; and hence, for any non-f easance in carry in g it out, they are, upon vvell- settled grounds, liable, not to the passenger, for they are net in any privity of contract with liim, but to the flrst carrier, for wliom they have undertakeu the service. Hence, in the case of loss of haggage of the passenger, under the English rule, the company selling the ticket alone is liable, although the baggage may have been lost on the line of one of the Connecting carriers. Mytton V. Midland R. Co. 4 Hurl. & if. 615; S. G. 28 L. J. (Exch.) 385. Whereas, under the American rule, either the company selling the ticket, or the carrier losing the baggage would be liable. �But a direct injury to the passenger stands on a different footing frora the loss of baggage. Here the passenger has, both under the English and the American doctrine, an action agaiust the carrier on whose line the injury was received. It is a case of thebreaeh of a contract, and also a case of mere tort; for the passenger would have an action although there were no con- tract, and the undertaking to carry him were gratuitous. Phila. & Reading R. Co. V. Derby, 14 How. (U. S.) 463; Steam-boat New World v. King, 16 How. (U. S.) 469; Todd v. Old Colony R. Co. 3 Allen, 18; S. G. 7 Allen, 207; Rose V. Des Moines Valley R. Co. 89 lowa, 246; Jaoohus v. St. Paul, etc., R. Co. 20 Minn. 125. The subsequent carrier having invitod or permitted the Jassenger to travel on its train, is bound to make reasonable provision for his safety; and for a f allure of this duty, the passenger may maintain au action against it as for pure tort. Berringer v. Qreat Eastern R. Co. 4 G. P. Div. 163 ; Foulks v. Metropolitan Dist. R. Co. Id. 267 ; Johnson v. West Chester, etc., R. Co. 70 Pa. St. 357. It has always been the law that a carrier who has infiicted an injury on a passenger may be sued in tort. Ansell v. Waterhouse^ 2 Chlt. 1; S. G. 6 Maule & Sel w. 385; Sretherton v. Wood, 6 J. B. Moore. 141 ; S. G. SBrod. & Bing. 54; Bank of Orange v. Brown, 9 Wend. 158; McOall v. Forsyth, 4 Watts & S. 179; Pa. R. Oo.v. The People, 31 Ohio St. 537; Ileirm V. MoCaughan, 32 Miss. 17 ; Oregin v. Brooklyn, etc., R. Co. 76 N. Y. 192 ; Saltonstall v. Stonkton, ianey's Decis. 11; Frink v. Potier, 17 111. 506; New Orleans, etc., R. Co. v. Hurst, 36 Miss. 660; Ames v. Utiion R. Co. 117 Mass. 541. With the case of Dale v. Hall, 1 Wilson, 281, the practico of declaring in assumpsit succeeded ; but this practice did not supersede the practice of suing in trespass or in case, {Bayley, J., in Ansell v. Waterhouse, 2 Chit. 1 ; S. G. 6 Maule & Selw. 385 ;) and the passenger has his election to sue for the tort, or to waive the tort and sue for the breach of the contract to carry him safely. Taney, G. J., in Saltonstall v. Stockton, Taney's Decis. 11 ; Frink v. Poiter, 17 111. 406, If he sues in contract, he can only sue the carrier with whom he made the contract; and here is where the difficulty arises in Ameri- can courts. The courts, English and American, almost universally hold that he may sue the first carrier, who, in cases of a contract liketheone in the prin- cipal case, is generally deemed to undertake for the safe carriage of the pas- senger and his baggage over the entire route embracing the Connecting Unes. Great Western R.Co. v. Blake, 7 Hurl. & N. 987; S. G. ihomp. Carriers of Passengers, 403 ; Buxton v. North Eastern R. Co. L. B. 3 Q. B. 549 ; Kent V. Midland R. Co. L. R. 10 Q. B. 1 ; S. G. 44 L. J. (Q. B.) 18 ; Mytton v. Mid- ��� �