Page:Federal Reporter, 1st Series, Volume 9.djvu/647

 632 FBDEEAIi REPORTER. �the negligence of the Union Bailway & Transit Company, clearly woiild not alter the liability of the Indianapolis & St. Louis Railroad Company; for the latter had conatituted the former their agent to complete the transit. In such cases, the general rule is that the carrier who uses the Une and means of transportation of another company is responsible for the negligence of such other company. " Eailway companies," said Lord Cockburn, " ought, at least, to use due care to keep the Une over which they contract to carry passengers, in a safe condition. There is no doubt that this is the obligation which at- taches to a railway company which undertakes to convey passengers through the whole distance of their Une; and if, by arrangement with another com- pany, they convey passengers over the whole or part of another line, the same obligation attaches, and they make the other company their agent, and on their part, they undertake that the other company shall have their line in proper condition." Great Western R. Co. v. Blake, 7 Hurl. & N. 992 ; S. C. Thomp. Carriers of Pass. 403. "A company," said Lush, J., in another case, "undertaking to carry passengers over another line, is answerable for negli- gence happening on it, just as much as if it happened on their own line." Bwxton V. North Eastem R. Co. L. E. 3 Q. B. 549, 554. So, in the supreme court of New Hampshire, it has been said: " By using the railroad of another corporation as a part of their track, whether by contract or mere permission, they would ordinarily, for many purposes, make it their own, and would as- sume towards those whom they had agreed to receive as passengers all the duties resulting from that as to the road ; and, if accident resulted to such passengers from any failure of duty of the owners of the road, for which they would be responsible if the road was their own, their remedy over would be against the owners." Murch v. Concord R. Co. 29 N. H. 35. To the same effect are Seymour v. Chicago, etc., R. Co. 3 Biss. 43 ; John v. Bacon, L. R. 5 C. P. 4a7;Peters v. Rylands, 20 Pa. St. 497; S. C. 1 Philadelphia, 264; McLean V. Burhank, 11 Minn. 277. So far as we know, the only contrary American decision is one in which the opinion was delivered by Judge Eedfleld, decided in 1857. Sprague v. Smith, 29 Yt. 421. Notwithstanding the eminent char- acter of the judge who wrote the opinion, it is obviougly unsound, and op- posed to the entire weight of authority, English and American. �3. A more interesting question relates to the right of action which the plaintifE had against the Union Eailway & Transit Company. Aside from any questions of imputed negligence,— that is, contrlbutory negligence of tl>e passenger's own carrier, — under what circumstances, if any, has he a right of action against a carrier with whom he is in no privity of contract. and who acts simply as the agent of the carrier which has undertaken to carry him ? This question has been mooted in several cases where it was unnecessary to decide it, because the passenger had brought the action against his own carrier. Martin, B., in Birkett v. Whitehaven Junotion R. Co. 4 Hurl. Se N. 730, 737; Crompton, J., in ffreat Western R. Co. v. Blake, 7 Hurl. & N. 987, 994; Sramwell, B., in Wright v. Midland R. Co., L. E. 8 Exch. 137, 143 ; Bell, J., in Murch v. Concord R. Co. 29 !N". H. 9, 35. The answer is simple. iie has the same right of action that a passenger would have for a personal injury against a stage-driver who was not the proprietor of the means of trans- portation. For an act of non-feasance on the part of one who is the agent or ��� �