At common law the liability of the owner of a vehicle, used for the transportation of persons for injuries resulting from the acts of his driver, extends to those injuries only which result from the driver's misjudgment or negligence while engaged for the owner in his vocation as a driver. (Wright v. Wilcox, 19 Wend., 344, 345; Hibbard v. The N.Y. and E.R.R. Co., 15 N YR., 467; Mali v. Lord, 39 id., 383; Fraser v.Freeman, 43 id., 566; Isaacs v. Third Avenue R.R. Co.,47 N Y, 122.) The theory upon which this action was brought and tried cannot be upheld, unless it is within the act entitled "Of the law of the road and the regulation of public stages" (3 R.S., 3d ed., 965, §§ 6, 7), making the owner of every vehicle running upon any public highway, for the transportation of persons, liable for all damages occasioned by the willful act of any one in his employ as a driver of such vehicle while driving the same; and this presents the question whether the road traversed by the defendant's cars was a public highway. The act referred to is but a compilation, in 1830, of the substance of previous acts, and applies in all its provisions to the whole road, and was intended to regulate
the conduct of those who can and have the right, under the regulations prescribed by it, to use any part of the road; and was passed long before any street railway was chartered in this State. Street railways were, it is true, within bounds of public highways; but that portion of the public highway upon which the track is authorized to be laid is necessarily so set apart for the exclusive use of the owner of the car and the track as not to permit any one of the public, in passing over the highway, to interfere with the running of such car, or with the track upon which it is run, to the unnecessary hindrance of the business of its owner. (Hegan v. Eighth Av. R.R. Co., 15 N.Y., 380, 382.) The first section of the act relied upon demonstrates its inapplicability to street railways, and to the drivers of cars upon them. It requires carriages meeting upon a public highway to turn to the right of its center; a regulation very difficult, if not quite impossible, to be complied with by the driver of a street car. It is true, also, that every railway for the transportation of persons is for public use. It is, nevertheless, the private property of its owner; and although the highway over which it passes remains a public highway, consistent with the unimpaired use of the railway, the railway itself is, notwithstanding, in the uses for which it was constructed, a private road for the accommodation of the public and the profit of its owners, upon which no one but its owners have the right to run a car. Such a road could not have been in contemplation of the framers of the act referred to, and is manifestly not a public highway within its meaning. There is another respect in which the court erred. Conceding the act of the driver to have been a wanton act, and that the defendant should be responsible for its consequences, it being an act for which no fault could be imputed to the defendant, the evidence to establish it should be such as the party seeking to establish it is clearly entitled. While one is engaged in an act, and the intention with which he is acting is a proper subject of inquiry, his declarations, made at the time, may be given in evidence to characterize the act. The declarations received in evidence were not
made at the time of the act complained of, but after the driver, with his car, had passed the place of the collision. It did not appear whether it was at the moment the car passed or how long afterward. It is enough, where the object is to visit the consequences of a wanton act upon a party who, for aught that appears, believed its driver to be free from the wantonness imputed to him, that it did not appear affirmatively that the declarations were made when they could properly be regarded as made at the time the injury was inflicted. (Luby v. The HudsonR.R.R. Co., 17 N.Y., 131, 133.)
I am, therefore, of opinion that each exception was well taken, and that the judgment appealed from should be reversed, and new trial ordered, costs to abide event.
All concur in last ground discussed in opinion. LOTT, Ch. C., concurs in the whole opinion.
Judgment reversed.