Davis v. Providence & Worcester Railroad , 121 Mass. 134 ( 1876 )

Ames, J.

It has been settled by recent decisions that under the provisions of the Gen. Sts. e. 63, § 101, a railroad corporation may be held liable for damage by fire, communicated by a loco* motive engine used upon its track, although the engine belongs to another corporation which is using the track under a lease or other agreement. Ingersoll v. Stochbridge & Pittsfield Railroad, 8 Allen, 438. Daniels v. Hart, 118 Mass. 543. In the former of these two cases, the defendant had leased its road to another corporation, which, by the terms of the lease, was doing with its own engines and servants the entire transportation of passengers and freight upon the road. It was held that the engine of the lessee, from which the fire was communicated, must be deemed to be the engine of the corporation owning the road, within the meaning of the section above cited. It was run with its consent, in the transaction of the business for the accommodation of which its franchise was conferred, and it was held that the corporation owning and having the profit of the franchise was directly liable.

The general inference from these decisions is that a railroad corporation cannot relieve itself from this statute liability by merely leasing its property to some other party. But there is nothing in these decisions, or in the reasons upon which they appear to rest, that confines the liability in such a case exclusively to the lessor, or that excludes the idea that the party injured may seek his remedy either of the lessor or the lessee. The case of the defendant comes literally within the terms of the statute. The fire was communicated from its engine. The damage was occasioned by its use of the road. It was lawfully using the road (Gen. Sts. o. 63, § 119) in the prosecution of its own business, and in the carrying out of the purposes of its charter and franchise, and we must assume that it was deriving some profit or advantage from such use. Under the arrangement the track was in the joint occupation and use of the defendant and the owners of the road. All the reasons, assigned in the above cited cases for holding the corporation owning the road liable, apply with at least equal force to the corporation using the road and actually doing the mischief. Under such circumstances the route, for the time being, may be considered as the route of the defendant; and there is no reason why it should not be held responsible for the damage caused by its use of the road, although the law has given to the injured party the right, if he sees fit, to seek Ms remedy against the corporation owning the road.

Exceptions overruled.