Coggin v. Central Railroad

Bleckley, Justice.

1. It may be doubted whether there is any way for a chartered railroad company, without special permission by statute, to let out one or more of its locomotives and cars to be run by steam upon the railway track of the corporation, and withdraw itself from responsibility for care and diligence in the manner of running. The charter privileges are granted to the corporation, and in accepting them, it assumes the correlevant obligations. One of the latter, and a very important one, where steam-power is employed, is the use of due care and diligence to guard against injury *691 to person or property. When the corporation chooses to part temporarily with the direct control of some of its dangerous machinery, does it sever itself from the consequences of the negligent management of that machinery upon its own road, on the part of those to whom it has, for the time being, entrusted the control ? Are these latter substituted in place of the company as to measures of redress ; and is the security afforded in other cases by the capital and resources of the company cut off from a party thus injured? Compare 49 Ga., 355 , with 46 Ib., 417. The facts of the present case, however, do not render any decision upon this point necessary.

2. As between the two companies, whose servant was the engineer? Was he the servant of the railroad company, or of the telegraph company ? If thé former, and if he was negligent, and if his negligence caused the injury, his master must respond. Ke was employed by the railroad company, was in its pay, subject to be discharged by it, and was running its locomotive and its cars upon its track. The work in hand was the transportation and distribution of poles for the telegraph company. All the operatives, the plaintiff included, except the engineer and the conductor, were servants of the telegraph company, and one of these servants represented the latter company in supreme command. The progress and the pauses of thé train were governed by his orders. When to start and stop, and how fast to move were matters for his regulation. His place, however, as it would seem, was not upon the locomotive but upon the cars. Most probably his wishes were signified to the conductor, and by the conductor to the engineer. It is probable, moreover, that his instructions, especially as to speed, were general and uniform, delivered once for all, and not in a constant flux of change or flow of ■ repetition ; more resembling, it may be supposed, established law than a series of special providences. His concern was mainly with results, and his supervision of means involved nothing beyond seeing that the poles reached their proper places on the *692 roadside in due time and manner. There is no evidence that he interfered or had a right to interfere with the application of steam, or with manipulating the engine. These were for-the engineer as an expert — as a craftsman skilled in his business. Certainly, to say the most, the connection of the two was not closer than that of pilot at the wheel and engineer at the throttle; and if so, the actual handling of the engine was exclusively for the engineer. Whatever the engineer did by the command of the telegraph company’s superintending agent was not, we may concede, fault or negligence in the engineer. If there was an order to jerk, or to take up the slack too fast, or otherwise to misapply the power of the engine, obedience to the order may not have been matter for complaint by any servant of the telegraph company on board. But orders to move at a given speed, to stop and to start, include in themselves by implication a further order to do these things in a proper manner, unless some particular manner is expressed. To cover unusual jerks, or unsafe slacking, or other hazardous freaks by orders, it is necessary that the order's should clearly embrace them. Any possible doubt should go against such a construction of orders ; for it is not to be intended that any but ordinary and proper means are contemplated when an order to move, stop or start, is given. Whether the engineer was in fact negligent, and whether, if he was, that negligence caused the injury sued for, ought to be left open as mere matters of fact to be determined by a jury on the new trial which it is our purpose to award ; but, in law, that he was the servant of the railroad company in respect to the negligence with which he is charged we have no doubt. Though he was subject to certain orders from the telegraph company, these orders did not extend, and it was not contemplated that they should extend, to the details of his vocation, to the matters of art and skill which his duty involved. As to these, his orders are to be looked for in the laws of the land, and the rule of diligence which they impose is the rule by which his diligence is to be *693 measured; and for that degree of diligence on his part the railroad company was responsible. We see not why that responsibility would not hold as between the two companies themselves. If the property of the telegraph company had been damaged by the same acts of negligence which are now complained of by the plaintiff, or if the latter company had been a natural person and had received the wounds and bruises which the plaintiff received, what, in either such case, would have hindered a successful- action by the telegraph company against the railroad company? If you hire from me the services of my skilled servant for a given occasion, and while about the business, he uses his skill negligently, and thereby you are damaged in property or person, am I not answerable ? And will your presence and my absence make any difference in my liability, if you have done nothing which you ought not, nor omitted anything which you ought, to have done ? And, we take it, that under the circumstances of the present case, the servants of the telegraph company were no less than the company itself under the protection of law against the engineer’s negligence, if they were rightfully upon the cars. The engineer’s services were not performed separately from the labor of these servants, but in connection with it; and this, doubtless, was contemplated in the- contract, whatever that was, between the two companies. You and I, let it be supposed, are carrying on, each his own business, upon the same premises, I in my shop, and you in the open air beside it. Wanting work done in my line, it is arranged between us that you are to send a force of common laborers with a general superintendent of the operations, and that I will furnish all the implements, with an expert to use such of them as require special skill in handling, and that by the co-operation of all these, the work is to be executed in my shop. We both know, and the laborers know, the execution of such work is attended with peril rather more than ordinary, and that the degree of this peril depends chiefly on the skill and diligence of my expert. The work is en *694 tered upon; the superintendent is faultless; the laborers are all faultless; the expert alone fails in duty, is negligent in the use of his skill and by reason of his negligence, one of the laborers is physically in jured: am I not liable ? My servant, while in my employment about my business, in my shop and with my tools, has negligently injured your servant engaged with him on the same general work; the skilled man on whose fidelity the safety of operations mainly depended, has proved derelict, and a common laborer at work on a plain part of the job has been crippled or otherwise wounded. Is the laborer to be without remedy, or turned over for redress to the expert alone ? Rather is not his negligence my negligence also ? Being his master, and his wrongful conduct having occurred while acting within the scope of his employment, am I not bound with him and for him 2 Code, §2961. While no case exactly analogous to the one at bar has been brought to our attention, and we have found none precisely in point, the principle which controls it is ruled or recognized in the following authorities: El. Bl. & El., 899; 6 M. & W., 499; Wood’s, M. & S., 630, et seq.; Whar. on Neg. §177, et seq.; Shear, and Red. on Neg., §§73, 74; Story on Agency, 8 ed., §§453 a, 453 b.

3. The controversy not being between the plaintiff and his own master, the telegraph company, it is quite immaterial how risk was regulated as between them. Relatively to the railroad company, the plaintiff certainly assumed all risk, except that arising from the negligence of that corporation or its servant, but as to the latter, it not being in any way waived or renounced, the general law respecting it is applicable, without modification.

4. The written contract put in evidence by the plaintiff was irrelevant, because thé parties to it were -the railroad company and the American Telegraph Company, whereas the plaintiff’s employer, for whom the poles were carried and distributed, was the Western Union Telegraph Company. It is to be presumed that one and the same company does not bear two names, and no change of name appears ; *695 nor is there any evidence that this contract or any other, of the former company, has become the contract of the latter company. "While, therefore, this written contract cannot be regarded, there is evidence enough in the record to justify the inference that there wás a contract of some kind between the railroad company and the Western Union Telegraph Company, under which the work was done. What the terms of it were we know not. It is to be presumed that the railroad company did not carry the poles gratuitously, but for compensation to be made or rendered in some way. No law requires such contracts to be in writing, and the parol evidence in the case bearing directly or indirectly on the existence of a contract, is pertinent. A contract between the two companies is alleged in the declaration merely by way of inducement, and is not described as being in writing.

5. It will be noticed that the railroad company of which we have hitherto spoken in this opinion is not sued, but that the suit is against the Central Railroad and Banking Company. By the authority of an act passed in 1872, the latter company absorbed the former, and the former voluntarily went out of existence as a corporation. One of the provisions of the act, cast upon the latter all the contracts of the former, but the act was silent as to torts. Now, the point is made that the present action is for a tort, and therefore that it is not' maintainable. To this there are two replies, one of which may satisfy some minds, and the other others; and possibly many minds will be satisfied with neither, nor with both together. The first reply is, that the word contracts is not used in the act in a strict sense, but in a loose and comprehensive signification, as meaning liabilities, "without respect to the- means by which they arose. It is contrary to the general rule of law in this state to withdraw the assets of a dissolved corporation from the reach of creditors. Code, §1688. In this section of the Code the word debts is used, and there is a strong probability that the word was intended to embrace liabilities of all classes, torts included. * Those having claims for torts, *696 not yet reduced to judgment, are not strictly creditors; their demands are not debts in the ordinai’y and proper meaning of the term, yet they are clearly within the equity of the statute. These same observations are applicable to the act of 1872, which happens to use the word contracts, instead of the word debts, which the Code uses, and instead of the word liabilities, which would very likely express what was really intended by both the act and the Code better than either of the words employed. The assets of the dissolved company all passed under the act of 1872 to the Central Railroad and Banking Company, and unless they are insufficient for the purpose, and there is no suggestion that they are, they should in its hands be as accessible to those whom the former company had wrongfully injured, as to those whom it had promised to pay. The second reply is, that the transaction alleged is, taken in its whole scope, and looked at to the bottom, a contract as well as a tort. When the company received the plaintiff on board its cars to be carried, the law implied a contract on its part to carry as safely and securely as the degree of diligence to which a private carrier, if not a public carrier, is bound, would accomplish. In connection with this contract, and based upon it, arose a duty the breach of which duty is the tort sued for, the breach of contract being also apparent from the averments. That the breach of duty instead of the breach of contract is perhaps the immediate gravamen of the action, and that the declaration is in case instead of assumpsit, are each more in the nature of formal than of substantial embarrassments. A recovery on either the tort or the contract, would bar a subsequent action on the other; and it is not apparent that the measure of damages would be substantially different. In this state forms of action are generally immaterial. It is only necessary to set forth the facts fully and distinctly; and in so doing, the present declaration sets forth facts from which a contract and its breach can be. collected, as well as many other particulars.

Judgment reversed.