It is the duty of a railroad company, running its trains in
connection with other lines, and taking passengers and freight for
transportation to points upon connecting lines, to carry them
safely to the end of its own
Page 155 U. S. 334
line, and there deliver them to the next carrier in the route
beyond, and, in the absence of a special agreement to extend its
liability beyond its own lines, such liability will not attach, and
such agreement will not be inferred from doubtful expressions or
loose language, but it must be established by clear and
satisfactory evidence.
The evidence in this case is reviewed, and it is
held
not to establish a special undertaking by the Pennsylvania Railroad
Company that the plaintiffs should be safely carried in the train
of the Virginia Midland Railway Company while proceeding along the
road of the Alexandria and Washington Railroad Company between the
cities of Alexandria and Washington, but that there was evidence
which would warrant a jury in finding that the Baltimore and
Potomac Railroad Company, the Alexandria and Washington Railroad
Company, and the Alexandria and Fredericksburg Railway Company had
made such a special undertaking, and were jointly liable to the
plaintiffs under it.
An advertisement by a railroad company that it runs or connects
with trains of another company so as to form through lines, without
breaking bulk or transferring passengers, does not tend to show a
contract between the companies to share profits and losses.
When a railroad for which a receiver has been appointed is
practically managed and controlled by the agents and employees of
the company, and the receiver's function as to business with
connecting lines is restricted to the receipt of its share of the
net earnings, and a passenger who receives an injury while being
transported upon it to a connecting line brings an action against
the company and other connecting lines to recover damages therefor,
there is no. error in instructing the jury that if they shall find
the company guilty of negligence their verdict will be against
it.
In this case, the Alexandria and Fredericksburg Railway Company
further set up that at the time of the happening of the injury
causing the damages sued for, the road was in the hands of mortgage
trustees, and that it therefore was not then a common carrier.
Held, there was evidence which justified the court in
submitting the question of the exclusive possession by the trustees
to the jury, and that there was no error in instructing the jury
that in order to acquit the company from responsibility, it should
be shown that the management and operation of the road was
conducted by the trustees to the entire exclusion of the company,
its officers, and board of directors, and that this fact was
notorious and could be presumed to be known to the public.
The case is stated in the opinion.
Page 155 U. S. 335
MR. JUSTICE SHIRAS delivered the opinion of the Court.
These were suits brought in the Supreme Court of the District of
Columbia, and tried at special term, in July, 1885, based upon
allegations of personal injuries received by the plaintiffs while
in the performance of their duties as railway postal clerks on the
mail route which extended from Charlotte, N.C. to Washington,
D.C.
The cases were tried together, and each of the plaintiffs
obtained a verdict and judgment, entered May 3, 1890, against all
of the defendants except the Virginia Midland Railway Company. The
other defendants, namely, the Pennsylvania Railroad Company, the
Baltimore and Potomac Railroad Company, the Alexandria and
Fredericksburg Railway Company, and the Alexandria and Washington
Railroad Company, appealed to said court in general term, where the
judgment of the special term was affirmed, and afterwards they
caused the cases to be brought here on writs of error.
The undisputed facts in the cases are substantially as follows:
about four miles from Washington at a place known as "Four-Mile
Run," the tracks of the Alexandria and Washington Railroad were
laid through a short tunnel or culvert under a canal. This culvert
was not of sufficient width to permit trains to pass each other
therein, and the double tracks, which extended over the whole line,
closely interlaced in the culvert, and for a short distance from
each end thereof, but each track remained practically unbroken and
independent, so that in passing this point it was not necessary
that a train on either track should stop, provided no other train
was upon or about to be upon this portion of the road where the
tracks converged. In or near this culvert at about 10 o'clock on
the night of the 19th of February, 1885, while the plaintiffs were
engaged in the performance of their duties as postal clerks in a
car attached to a northbound passenger train of the Virginia
Midland Railway Company, a collision occurred upon the interlaced
tracks, between that train and a fast-freight train of the
Alexandria and Fredericksburg Railway Company, bound south, which
resulted in the death of four persons, and in serious injuries to
each of the plaintiffs.
Page 155 U. S. 336
The essential allegations of both declarations filed by the
plaintiffs were that all of the defendant companies were engaged as
common carriers in the transportation of passengers, persons, and
freight upon and along the several lines of the railroads belonging
to them and along the line, among others, of the Alexandria and
Washington Railroad Company, under an arrangement or contract, for
their common benefit, by which they were interested jointly in the
running and management of their roads, and that through the
negligence of the defendant companies, the collision occurred which
caused the injuries complained of.
The defendants all appeared to the action, and severally put in
pleas of not guilty, and afterwards, upon leave granted by the
court, each company filed an additional plea averring that
"it was not at the time of the alleged injury, and never was, a
common carrier of passengers and freight in manner and form as in
said declaration alleged."
A large amount of evidence was put in on behalf of the
plaintiffs for the purpose of sustaining their allegations of
negligence on the part of employees of one or more of the defendant
companies, and to show that the roads owned by those companies were
operated in connection with each other on joint account, or that
there was such community of interests among them as would make all
of them liable for the acts of agents or employees of one.
The Virginia Midland Railway Company introduced evidence which
tended to prove that its road extended no further north than
Alexandria, and that its trains were run over the roads of the
other companies, under an arrangement by which it paid certain
prices per passenger and per ton of freight for the running
privileges given it, and by which it was required to admit on board
its northbound trains at Alexandria an agent of the company or
companies which controlled the road north of that place, who had
therefrom the exclusive direction of the trains. It appeared,
however, that although such agent was on the passenger train in
question, employees of the Virginia Midland Railway Company
performed the actual work of controlling the train.
Page 155 U. S. 337
The evidence on the part of the other defendants was directed
mainly to showing that at the time of the collision, the road of
the Alexandria and Washington Railroad Company and the franchises
necessary for its operation were in the hands of a receiver
appointed by the Circuit Court of the United States for the Eastern
District of Virginia; that the company had no rolling stock, but
that the receiver permitted other roads to use its tracks, under
certain agreements which had been made between that company and
other companies before his appointment, and that the business of
the Alexandria and Fredericksburg Railway Company was being carried
on by trustees who were possessed of the property and franchises of
this company by virtue of a deed of trust executed by it on June 1,
1866, to secure the payment of the principal and interest of
certain of its first mortgage bonds.
Many exceptions were taken by the defendants during the trial to
the admission and rejection of evidence, to the refusal of the
court to give the jury certain instructions proposed by them, and
to the giving of other instructions against their objections. These
exceptions constitute the grounds of the assignments of error.
The suits were brought against the Pennsylvania Railroad
Company, a corporation organized under the laws of the State of
Pennsylvania; the Baltimore and Potomac Railroad Company, a
corporation organized under the laws of the State of Maryland and
acts of the Congress of the United States; the Alexandria and
Washington Railroad Company, the Virginia Midland Railway Company,
and the Alexandria and Fredericksburg Railway Company, which three
last-mentioned companies were corporations organized under the laws
of the State of Virginia.
The theory upon which the plaintiffs proceeded in including
these five companies in the actions was thus expressed in the
declarations:
"For that heretofore, to-wit, on the 19th day of February, 1885,
and prior thereto, the said defendants were engaged as common
carriers in the transportation of passengers, persons, and freight
upon and along the several lines of railroad belonging
Page 155 U. S. 338
to said companies, and, among others, along the line of the road
of the said Alexandria and Washington Railroad Company running
between the cities of Alexandria and Washington under an
arrangement or contract for their common benefit, the full and
exact terms of which are unknown to this plaintiff, and by which
they were jointly interested in the running and management of the
said railroads."
The Pennsylvania Railroad Company filed a plea of not guilty,
and a special plea that said company "was not at the time of the
alleged injury, and never was, a common carrier of passengers and
freight in manner and form as in said declaration alleged."
After the testimony was closed on both sides, the counsel of the
Pennsylvania Railroad Company moved the court to instruct the jury
that, upon the pleadings and evidence, the said company was
entitled to a verdict in its favor. To the refusal of the court to
grant such instruction exception was duly taken, and that action of
the court is here assigned for error.
As it is not pretended that there was not evidence sufficient to
warrant the jury in finding that the plaintiffs' injuries were
caused by carelessness in the management of one or both of the
trains, our inquiry must be directed to the other issue -- that is,
whether it was shown by competent evidence that the Pennsylvania
Railroad Company was engaged at the time of the accident as a
common carrier in the transportation of freight and passengers
along the line of the road of the Alexandria and Washington
Railroad Company running between the cities of Alexandria and
Washington under an arrangement or contract with the other
companies defendant for their common benefit, and by which they
were jointly interested in the running and management of said
railroad.
It is conceded or sufficiently appears in the evidence that the
running and management of the road of the Alexandria and Washington
Railroad Company were not within the scope of the ordinary powers
of the Pennsylvania Railroad Company as a corporation of the State
of Pennsylvania. To render the latter company responsible for what
might take place on a
Page 155 U. S. 339
railroad in another state, some contract or arrangement to that
effect must be made to appear.
It is also disclosed by the evidence that neither of the trains
by whose mismanagement the accident was caused was a train
belonging to the Pennsylvania Railroad Company, and that the men in
charge were not in the immediate employ of that company.
The general principles applicable to the present inquiry are
well settled, and have frequently been declared by this Court. In
Railroad Co. v.
Manufacturing Co., 16 Wall. 324, it was said:
"It is the duty of the carrier, in the absence of any special
contract, to carry safely to the end of his line and to deliver to
the next carrier in the route beyond. This rule of liability is
adopted generally by the courts in this country, and is in itself
so just and reasonable that we do not hesitate to give it our
sanction."
And in
Railroad Co. v.
Pratt, 22 Wall. 129, it was said: "The fair result
of the American cases limits the carrier's liability as such, when
no special contract is made, to his own line." These cases were
followed in
Myrick v. Michigan Central Railroad Co.,
107 U. S. 102, and
it was there said:
"In the absence of a special agreement to extend the carrier's
liability beyond his own route, such liability will not attach, and
the agreement will not be inferred from doubtful expressions or
loose language, but only from clear and satisfactory evidence."
Was there shown, then, in the present case a special contract or
undertaking by the Pennsylvania Railroad Company that the
plaintiffs should be safely carried in the train of the Virginia
Midland Railway Company while proceeding along the road of the
Alexandria and Washington Railroad Company between the cities of
Alexandria and Washington?
There was no attempt to show any such contract or agreement
between these plaintiffs and the Pennsylvania Railroad Company. The
liability of the latter is sought to be found in an alleged
existing agreement between that company and the other companies
defendant, whereby the said companies were "jointly interested in
the running and management of said railroads."
Page 155 U. S. 340
Moreover, it was not claimed that this alleged agreement was in
writing, or was to be found in any resolution of the board of the
Pennsylvania Railroad Company. Indeed, the averment of the
declaration was that "the full and exact terms of the alleged
contract were unknown to the plaintiffs."
The right of recovery in this case against the Pennsylvania
Railroad Company was rested by the plaintiffs entirely upon
supposed business relations existing at the time of the accident
between the railroad companies defendant. It is necessary,
therefore, that they should point to evidence satisfactorily
establishing the existence and nature of those business relations.
A careful consideration of the evidence appearing in the record has
failed to satisfy us that there existed a contract or agreement
between these railroad companies upon which liability on the part
of the Pennsylvania Railroad Company can be based. Let us briefly
consider the particulars of the evidence relied on by the
plaintiffs.
The annual reports to the stockholders of the Pennsylvania
Railroad Company were put in evidence. That of March 2, 1885,
contained the following statement:
"The board herewith submit their report for 1884, with such data
relating to the lines controlled by your company as will give you a
clear understanding of their physical and financial condition."
Also the following:
"The Baltimore and Potomac Railroad connects your line with
Washington and the South."
And from the report of March, 1886, the following quotation was
cited:
"The board herewith submits its report for the year 1885, with
such data as relate to the lines embraced in your system as will
give you a clear understanding of their physical and financial
condition."
It was also shown by said report that the Pennsylvania Railroad
Company owned, on December 31, 1885, $1,000,000 of the bonds of the
Alexandria and Fredericksburg Railway Company, and $2,000,000 of
the bonds of the Baltimore and Potomac Railroad Company, and 60,852
shares of the Baltimore
Page 155 U. S. 341
and Potomac Railroad Company's stock, and 217,819 shares of the
stock of the Philadelphia, Wilmington and Baltimore Railroad
Company.
A railroad map showing a continuous line of railroad between
Philadelphia and Quantico, with letters signifying that the roads
embraced therein were the Philadelphia, Wilmington and Baltimore,
the Baltimore and Potomac, the Alexandria and Washington, and the
Washington and Alexandria Railroad Companies, was put in
evidence.
It was also proved that a ticket issued by the Pennsylvania
Railroad Company was sold in Baltimore at the office of the
Northern Central Railroad Company, on account of the Alexandria and
Fredericksburg Railway Company, and it was likewise proved that the
Pennsylvania Railroad Company owned stock in the Alexandria and
Washington and the Alexandria and Fredericksburg Railway Companies,
and that some persons who were officers of the Pennsylvania
Railroad Company were likewise officers of these companies. It was
also shown that the employees of the Baltimore and Potomac, the
Alexandria and Washington, and the Alexandria and Fredericksburg
roads were paid from a pay car whose brakeman and conductor wore a
blue uniform with silver buttons, which was said to be the uniform
of the Pennsylvania Railroad Company.
Newspaper advertisements were put in evidence calling the
attention of the traveling public to the "Great Pennsylvania Route
to the Northwest and the Southwest," and it was shown that James R.
Wood was general passenger agent, and Charles E. Pugh general
manager, of the Pennsylvania Railroad Company, stationed at
Washington, and it likewise appeared that they occupied similar
positions in the Philadelphia, Wilmington, and Baltimore, the
Baltimore and Potomac, Alexandria and Washington, and the
Alexandria and Fredericksburg Companies.
John S. Barbour testified that he had acted for some years as
president and receiver of the Virginia Midland Railway Company, his
official relations with that company ceasing in the latter part of
1884. His testimony was to the effect that he had made arrangements
for the running of the trains of the
Page 155 U. S. 342
Midland Railway Company over the road between Alexandria and
Washington. He says that there was no contract ever signed, but
that his conversations were with officers of the Pennsylvania
Railroad Company, particularly naming Mr. Scott and Mr. Roberts,
the latter being president of both the Pennsylvania Railroad
Company and the Alexandria and Fredericksburg Railway Company; that
the Pennsylvania authorities were running the Baltimore and
Potomac, and a through line from New York to Quantico; that the
Midland Railway Company was to pay 35 cents for each passenger, and
so much on freight, for each car load or by the ton; that the
Midland Railway Company used its own rolling stock and crews. He
further stated that he would not say to whom or to what companies
his company paid compensation for the use of the road, and that his
recollection of the details of the agreement was indistinct, as it
was made in 1876. On cross-examination, he stated that his company
settled accounts with the officers of the Baltimore and Potomac
Railroad Company or those of the Alexandria and Fredericksburg
Railway Company.
The plaintiffs further gave evidence to show that on the arrival
of the trains of the Virginia Midland Railway Company at
Alexandria, they were turned over to the authorities operating said
roads between that place and Washington, and run between those two
points, both ways, under the absolute control of the last-named
parties, who had the right to and did place a pilot in charge of
said trains to run the same between those points; that said pilots
were sometimes employees of the Baltimore and Potomac Railroad
Company and sometimes of the Alexandria and Fredericksburg Railway
Company; that all other persons engaged in running said Virginia
Midland trains were employees of the last-named company; that the
pilot who took charge of the Virginia Midland train on which
plaintiffs were on the 19th day of February, 1885, when it arrived
at Alexandria, and under whose direction and control it was at the
time and place of the accident, was Charles F. Bennett, whose
uniform was such as is worn by the employees of the Pennsylvania
Railroad Company, except that on the buttons were the letters "B
and P," and whose name
Page 155 U. S. 343
was on the payrolls of, and he was paid by, the Alexandria and
Fredericksburg Railway Company.
In connection with the foregoing, there was evidence, proceeding
partly from both parties, tending to show that the mails over said
route between Alexandria and Washington were carried not under any
express contract, but under the general statutes, and the
arrangement of the government for carrying all mail, either through
or local, between Washington and Alexandria was with the Alexandria
and Washington Railroad Company, and that road was paid for
transporting, for the quarter beginning January 1, and ending March
31, 1885, by drafts or checks, and that no other railroad was paid
by the United States for conveying mails between said points; that
said sum so paid was divided among the Alexandria and Washington,
the Alexandria and Fredericksburg, and the Baltimore and Potomac
Railroad Companies; that about the time of said collision and for
some time prior thereto, both freight and passenger trains passed
over the road between Alexandria and Washington, some of them
hauled by engines marked "B. and P.," some of them marked "A. and
F," and some passenger trains marked "B. and P.;" that the
compensation paid by the Virginia Midland Railway Company for the
privilege of running its trains between Washington and Alexandria
was 35 cents per passenger, and $4 per car load of freight, which
was paid by it periodically to J. S. Lieb, the treasurer of the
Alexandria and Washington, Alexandria and Fredericksburg, and
Baltimore and Potomac Railroad companies.
The plaintiffs further showed that the Pennsylvania Railroad
Company paid consignees for goods destroyed in the collision, and
then made demand upon Wilkins, the receiver of the Alexandria and
Washington Railroad Company, for reimbursement, and claimed this
fact as admission that the Pennsylvania Railroad Company was a
common carrier of these goods at the time and place of
destruction.
The foregoing is a condensed statement of the evidence relied on
as establishing such a relation between the railroad companies
owning the roads and managing the trains at the
Page 155 U. S. 344
time and place of collision and the Pennsylvania Railroad
Company as to make the latter responsible to the plaintiffs for
their injuries.
Some of this evidence was objected to by the counsel of the
Pennsylvania Railroad Company as incompetent for the purpose for
which it was offered. But we do not deem it necessary to critically
examine these objections. Taking the plaintiffs' evidence as a
whole and supplementing it with such facts favorable to them as
appear in the defendants' evidence, we are unable to see that a
case was made out as against the Pennsylvania Railroad Company.
That the Pennsylvania Railroad Company owned stock and bonds of
some of the other companies defendant did not tend to show a
partnership or agreement to run the roads of the latter on common
account. Such ownership rather went to explain why some of the
officers of the Pennsylvania Railroad Company held official
positions in the other companies, and to show why their officers
were consulted about the arrangement made between the Alexandria
and Washington, the Alexandria and Fredericksburg, and the
Baltimore and Potomac Railroad Companies, and the Virginia Midland
Railway Company for the use by the latter of the roads of the
former between the cities of Alexandria and Washington, as
testified to by J. S. Barbour, and also explains the references
made in the reports of the Pennsylvania Railroad Company to these
roads as connecting with their system.
That the Pennsylvania Railroad Company paid consignees for goods
destroyed in the collision may justify an inference that there was
some agreement between the owners of the goods and the Pennsylvania
Railroad Company that the latter should be responsible for the
goods beyond their own line, but in that event the responsibility
arose out of such contract, and not out of a contract between the
railroad companies. It was indeed contended that the act of the
Pennsylvania Railroad Company in demanding reimbursement from the
Alexandria and Washington Railroad Company for a proportion of such
payment is indicative of an existing arrangement between the
companies for dividing such losses.
Page 155 U. S. 345
But an examination of the evidence in this particular plainly
shows that, though the words "Proportion Due" appear at the head of
the column stating the amount demanded, yet the actual demand was
for the entire loss, and not for a part or proportion thereof. Such
a demand therefore is evidence that no agreement existed for a
participation in losses.
That the Pennsylvania Railroad Company advertised that it ran
trains, or connected with trains of other companies, so as to form
through lines, without breaking bulk or transferring passengers did
not tend to show any contract or agreement between the companies to
share profits and losses. Nor was there evidence in the present
case that there was any actual participation by the Pennsylvania
Railroad Company in the earnings of the other companies which used
the road between the Cities of Alexandria and Washington. On the
contrary, the evidence affirmatively showed that such earnings,
including what was paid by the United States for the transportation
of mails, were divided between the other companies, and went, none
of them, to the Pennsylvania Railroad Company.
Without dwelling longer on this feature of the case, our
conclusion is that the Pennsylvania Railroad Company was entitled
to the peremptory instruction asked for in its favor.
Our views respecting the exceptions urged on behalf of the other
plaintiffs in error are briefly expressed as follows: there was
evidence from which the jury might properly infer that the railroad
between the Cities of Alexandria and Washington was managed and
controlled for the common use of the Baltimore and Potomac Railroad
Company (owning that portion of the route that lies between
Washington and the south end of the Long Bridge), the Alexandria
and Washington Railroad Company (owning that portion between the
south end of the Long Bridge and St. Asaph's Junction), and the
Alexandria and Fredericksburg Railway Company (owning the line
between St. Asaph's Junction and Alexandria); that the gross
earnings of these companies, derived from this line between
Alexandria and Washington, including what the Virginia Midland
Railway Company paid for the privilege of running its trains over
these tracks and what was received for transportation of mails,
Page 155 U. S. 346
went into the hands of a common treasurer, and were by him,
after paying operating expenses, divided among the three companies
according to some rule not very definitely shown, but apparently in
proportion to the miles of track of each road; that the operating
and accounting officers of the three companies were the same; that
the freight train in question was at the time of the collision on
that portion of the road which belonged to the Alexandria and
Washington Railroad Company; that the engineer and fireman were
employees of the Baltimore and Potomac Railroad Company; that the
engine was that of the Alexandria and Fredericksburg Railway
Company; that the conductor and brakemen were employees of that
company, and that the passenger train was in charge of a pilot
employed and paid by the three companies, in pursuance of an
arrangement to that effect.
Such a state of facts would, we think, warrant a finding of
joint liability of these three companies to the plaintiffs unless
certain facts put in evidence by the Alexandria and Washington
Railroad Company and by the Alexandria and Fredericksburg Railway
Company exonerate them respectively from such liability.
The Alexandria and Washington Railway Company filed a plea of
not guilty and likewise a plea denying that said company was at the
time of the alleged injury a common carrier of passengers and
freight in manner and form as in the declaration alleged.
In support of the issues thus formed, the Alexandria and
Washington Railroad Company put in evidence a record of the Circuit
Court of the United States for the Eastern District of Virginia
showing that in a suit of Alexander Hay against said company, on
January 19, 1882, George C. Wilkins was appointed receiver of said
company, and was directed, after giving bond, to take possession of
the railroad tracks, engines, and property, real and personal, to
the company belonging, and to run and operate said railroad for the
carriage of freight and passengers, and to make from time to time
all needful and proper traffic arrangements with other roads for
the exchange of business, and it was further thereby ordered
that
Page 155 U. S. 347
said receiver should, as soon as may be, make and file with the
clerk of the court an inventory of all the real and personal
property that came into his possession as receiver. The said
defendant further gave evidence tending to show that said receiver,
on the 19th day of June, 1882, took possession of said railroad in
pursuance of said decree, and has exclusively held possession and
operated and maintained said railroad until after the 19th day of
February, 1885; that the inventory of property received by him,
which was put in evidence, disclosed among other things a single
track from Duke Street in Alexandria to St. Asaph's Junction, and a
double track from the said junction to the south end of the Long
Bridge, with sidings, bridges, etc. The evidence further tended to
show that said company had no cars, engines, or rolling stock when
the receiver took possession, and that none was acquired
afterwards; that the receiver made all his returns of money
received to the said circuit court, and that such moneys were
carried through certain arrangements existing with the Baltimore
and Potomac Railroad Company, the Virginia Midland Railway Company,
and with Du Barry and Green, trustees of the Alexandria and
Fredericksburg Railway Company; that under this arrangement, the
gross receipts of the operation of the route between Alexandria and
Washington went into the hands of J. S. Lieb, treasurer, and
through a common auditor, the net proceeds were distributed
pro
rata, and to the receiver was paid the
pro rata share
of the Alexandria and Washington road.
Thereupon the Alexandria and Washington Railroad Company moved
the court to instruct the jury that said company was, upon the
pleadings and evidence, entitled to a verdict in its favor, and
also moved the court to instruct the jury that if they were
satisfied from the evidence that all the property of the Alexandria
and Washington Railroad Company was at the time of the accident in
the exclusive control of George C. Wilkins, the receiver thereof,
appointed by the circuit court of the United States, the verdict
must be in favor of the Alexandria and Washington Railroad
Company.
Both these prayers for instructions were refused by the
court,
Page 155 U. S. 348
and the case was submitted to the jury under instructions whose
validity is brought before us by the bills of exception. The
plaintiffs, to overcome this evidence on behalf of the Alexandria
and Washington Railroad Company, put in evidence a report made to
the board of public works of the State of Virginia, signed and
sworn to by John S. Lieb, treasurer, and H. H. Carter,
superintendent, of the Alexandria and Washington Railroad Company,
for the year 1885. In this report nothing is said about an existing
receivership, and there are statements of expenses in repairing
engines and tenders and in paying conductors, engineers, and
firemen. It was also shown that at a meeting of the board of
directors of the Alexandria and Washington Railroad Company, held
in Philadelphia on November 27, 1876, John S. Lieb was appointed
agent to receive and receipt for moneys due or to become due the
company for transportation of mail between Washington and
Alexandria, and that the warrants on the United States Treasury, in
payment for carrying the mail between Alexandria and Washington for
the quarter ending March 31, 1885, were made payable to the order
of John S. Lieb, agent of the Alexandria and Washington Railroad
Company. It also was made to appear by the testimony of Wilkins,
the receiver, that he did not make the arrangement by which the
trains of the Virginia Midland Railway Company, of the Alexandria
and Fredericksburg Railway Company, and of the Baltimore and
Potomac Railroad Company ran over the road of the Alexandria and
Washington Railroad Company, but that he found an arrangement under
which this was done when he was appointed, and he permitted it to
continue; that he sold no tickets over the Alexandria and
Washington Railroad; that the Alexandria and Washington Railroad
had no rolling stock or employees in his employment or control as
receiver; that he did not know which of the said companies, the
Alexandria and Fredricksburg, furnished the rolling stock and
employees to run the local trains over the Alexandria and
Washington Railroad while he was receiver.
Upon the issue thus formed by the pleadings and evidence, the
court below instructed the jury as follows:
Page 155 U. S. 349
"The Alexandria and Washington Railroad Company makes the plea
that it was not a common carrier on the road at the time and place
of the accident in question, because, they say, the road between
Alexandria and Washington was at the time under the control of a
receiver theretofore duly appointed. It is not disputed that Mr.
Wilkins had been appointed receiver, and held his office at the
time of the accident. The question now is whether he alone is
liable for injuries received on the road by reason of negligence,
or whether the Alexandria and Washington Railroad Company is not
liable notwithstanding the receivership."
"If you find from the evidence that the Alexandria and
Washington Railroad Company was carrying the United States mail
between Alexandria and Washington, and the plaintiffs were in
charge thereof as postal clerks, duly commissioned and designated
by the United States for that duty, and the Alexandria and
Washington Railroad Company was paid by the United States by drafts
payable to the order of the agent of that company appointed by its
board of directors to receive the same, and that the freight and
passenger trains which collided and caused the injury to the
plaintiffs were running over said road under an arrangement made by
the parties in control of said road prior to the appointment of the
receiver of said road, and if, when the receiver was appointed, he
continued in office as superintendent, general manager, and
treasurer the same persons as had heretofore discharged the duties
of these positions, and if the business of this railroad, so far as
was known to the public, was continued in the same way, so far as
the general public could know, as before, and was so conducted at
the time of the accident, and the only substantial duty that the
receiver discharged was to receive the net earnings of the road
from the treasurer and to account therefor to the court by which he
was appointed, then if you shall find that the Alexandria and
Washington Railroad Company was guilty of negligence, from the
evidence and under the instructions of the court, your verdict will
be against it, and for the plaintiffs."
"But if you are satisfied that the business on the
Alexandria
Page 155 U. S. 350
and Washington Railroad, so far as the interests of the
Alexandria and Washington Railroad Company were concerned, was
conducted by the receiver, after his appointment, and to the time
of the collision, in his own name, and in such manner that it could
be generally known by the public that he, and not the company,
conducted the business and controlled the road and its management,
and that he did so to the entire exclusion of any control or
participation by the Alexandria and Washington Railroad Company,
its officers and board of directors, then your verdict should be
for the Washington and Alexandria Railroad Company."
We do not think that the court erred in admitting evidence
tending to show that practically the road was managed and
controlled by the agents and employees of the company, and that the
receiver's functions were restricted to the receipt of its share of
the net earnings, and, with such evidence before the jury, we do
not perceive any substantial error in the instructions given to the
jury. It could not be safely said that in no case evidence should
be received to show that a receiver contented himself with
receiving a share of the net earnings of a railroad which he
permitted to be managed by the officers and employees of the
company owning the road, in connection with those of other
companies having a common interest.
A similar question was decided by this Court in the case of
Railroad Company v.
Brown, 17 Wall. 448. There, a railroad was run on
the joint account of lessees on the Virginia end of the road, and
of the receiver on the end in the District. A suit was brought
against the railroad company by a passenger, who recovered a
verdict and judgment. It was urged in this Court, in pursuance of
exceptions duly taken, that the railroad company was not liable for
anything done while the road was operated by the lessees and the
receiver, and it was said, through Mr. Justice Davis:
"It is the accepted doctrine in this country that a railroad
corporation cannot escape the performance of any duty or obligation
imposed by its charter or the general laws of the state by a
voluntary surrender of its road into the hands of
Page 155 U. S. 351
lessees. The operation of the road by the lessees does not
change the relations of the original company to the public. It is
argued, however, that this rule is not applicable where the
proceeding, instead of being voluntary, is compulsory, as in the
case of the transfer of possession to a receiver by a decree of a
court of competent jurisdiction. Whether this be so or not we are
not called upon to decide, because it has never been held that the
company is relieved from liability unless the possession of the
receiver is exclusive, and the servants of the road wholly employed
and controlled by him. In this case, the possession was not
exclusive, nor were the servants subject to the receiver's order
alone. On the contrary, the road was run on the joint account of
the lessees and the receiver, and the servants employed and
controlled by them jointly. Both were therefore alike responsible
for the act complained of, and, if so, the original company is also
responsible, for the servants under such an employment, in legal
contemplation, are as much the servants of the company as of the
lessees and receiver."
Nor is it apparent that in the present case it is at all
important to the receiver or to the company whether the one or the
other was made nominal defendant. Upon the theory of the
plaintiffs' case that there was a joint liability on the part of
the companies defendant for losses incurred in the management of
the road, it would seem to make no difference whether the share or
proportion of the loss chargeable to the Alexandria and Washington
Railroad is deducted by the common treasurer from the share of the
net earnings coming to the receiver, as is now the case, or should
be deducted by the latter as part of his expenses, as would have
been the case if he, as receiver, had been sued instead of the
company.
A special plea was likewise filed by the Alexandria and
Fredericksburg Railway Company claiming immunity because their
railroad was at the time of the collision in the possession and
control of trustees.
Under this plea it was shown that the company, on June 1, 1886,
executed a deed of trust to secure payment of the principal and
interest of bonds to the amount of $1,000,000,
Page 155 U. S. 352
and that Du Barry and Green were trustees under the provisions
of said deed and of certain orders of the County Court of
Alexandria County, in the State of Virginia. There was also
evidence given tending to show that the said trustees took
possession of said road on December 6, 1872, and all of its
property, and held, used, and operated the same up to and beyond
the time of the said collision, and that at the time of said
collision, the said the Alexandria and Fredericksburg Railway
Company had in its possession no cars, engines, or rolling stock,
and that the trustees in possession under said deed of trust as
aforesaid did, in January, 1875, appoint George C. Wilkins
superintendent of said Alexandria and Fredericksburg Railway and
property, and that said Wilkins had exclusive possession and
management of the road.
On the part of the plaintiffs it was shown that the Alexandria
and Fredericksburg Railway Company made a report to the Board of
Public Works of the State of Virginia for the year of 1885, sworn
to by the president and general superintendent of the company, in
which there is no reference to the alleged possession by trustees,
but it does contain detailed statements of the property of the
company, including cars and engines, and of the number of
passengers and tons of freight carried, and of the various
expenditures on account of repairs.
It was further shown that the engine that hauled the freight
train that figured in the collision belonged to the Alexandria and
Fredericksburg Railway Company.
The Alexandria and Fredericksburg Railway Company requested the
court to charge the jury that if they should find that the property
of the company was in the exclusive possession and control of the
trustees, and that the company did not, by its servants, agents, or
otherwise, exercise any authority or control over the road between
St. Asaph's Junction and Alexandria after the receiver of the
Alexandria and Washington Railroad Company took possession of that
line, the verdict must be for the Alexandria and Fredericksburg
Railway Company.
The court instructed the jury as follows:
Page 155 U. S. 353
"The Alexandria and Fredericksburg Railway Company also pleads
that it was not a common carrier on the road when the accident
occurred, in addition to the plea of not guilty, and upon this
trial it supports this plea by showing that its road, at the time
of the accident and for some time before, had been in the
possession of trustees by virtue of the provisions of a deed of
trust executed by the company to secure its indebtedness, the
condition of which had been broken by the maturity and nonpayment
of the debt so secured."
"In order that the Alexandria and Fredericksburg Company be
acquitted from responsibility for this reason, it should in any
event appear that in fact the business of management and operation
of the road was conducted by the trustees to the entire exclusion
of the company, its officers, and board of directors, and that this
was so notoriously so that the fact may well be presumed to be
known to the public. Besides, it should appear that the trustees
were not appointed by the procuration or assent of the railroad
company, for if so, the trustees would be as much the agents of the
company as of the grantees in the trust deed. The Supreme Court of
Appeals of the State of Virginia, in an action brought against the
Alexandria and Fredericksburg Railway Company for personal injuries
resulting from negligence on the road while in the possession of
trustees by virtue of a deed of trust under conditions precisely
similar to those shown in this case, held that"
"no provision is found in the charter of the defendant company
or the general railroad law of Virginia which will authorize the
company to transfer to trustees or to mortgagees, under the deed of
trust given as a mere encumbrance and security, the right and legal
capacity to step into the shoes of the company and assume and
exercise indefinitely the franchises, rights, and privileges of the
company so as to give the company exemption and immunity from
responsibility for all injuries inflicted by the operation of the
road by trustees."
"I quote this language for convenience and accuracy, and adopt
it and give it to you as the law in this case. It follows lows that
the Alexandria and
Page 155 U. S. 354
Fredericksburg Company cannot be excused from liability because
of any possession shown in trustees."
An examination of the trust deed discloses a provision that the
trustees, in case of default for a period of ninety days and on the
request in writing of the holders of the bonds, might take
possession of the railroad and appoint agents to conduct its
affairs, and it was claimed that the court might presume that the
possession of the trustees, relied on to defeat the suit against
the company, was in pursuance of that provision.
However this may be, we think that there was evidence which
justified the court in submitting the question of the exclusive
possession by the trustees to the jury, and that the instructions
given were not erroneous in any substantial particular. The
observations already made respecting the similar claim on behalf of
the receiver of the Alexandria and Washington Railroad Company are
applicable here, but need not be repeated.
Judgment of the general term of the Supreme Court of the
District of Columbia reversed and case remanded to that court with
directions to set aside the judgment of the special term and to
permit the plaintiffs to elect to become nonsuit as against the
Pennsylvania Railroad Company, and take judgment on the verdict
against the other defendants, and, if they do not so elect, then to
set aside the verdict and order a new trial generally.