Thus, it has been held that the engineer of a train and a fireman employed by him and in charge of the brakes under the engineer's direction, are both servants of the railroad company, and that the railroad company, the engineer and the brakeman may all be sued jointly or severally for damages resulting from the negligent management of the train.T But the mere negligence of a servant does not necessarily create a joint liability of the master and the servant for damages resulting therefrom." Thus, it has been held that where an injury results to a servant by the act of another servant rendering the place of employment dangerous, in which no concert of action on the part of the master is shown, the liability of the master and such delinquent servant is several and not joint.78 And it has also been held that the master is not liable for damages occasioned by the negligence of his servant while driving his horses and carriage in the master's absence. But a master and his servant may be sued jointly where the master hired a horse and entrusted it to his servant, who injured it by immoderate driving in the presence of the master.So So, it has been held that the master and the servant are jointly and severally liable where the employé procured another to perform the service of unloading a car of coal, and by the latter's negligence a car was placed so near the main-track that it collided with a passing train.81 $7438. Parties Defendant in Actions for Injuries Resulting from the Construction or Operation of Railroads.-A railroad company operating another road under a partnership agreement may be joined as a party defendant in an action for damages caused by delaying transportation of goods on such other road; and such action may be brought in a county in which the delinquent company operates its road, although the other company has no road or agent in such county.82 Under an act consolidating two railroad companies under a new name, and providing that it "shall in no way affect the rights of the creditors of the said companies," a person injured by the fault of one of the old companies has a right of action therefor against Monfort v. Hughes, 3 E. D. Smith (N. Y.) 591; Phelps v. Wait, 30 N. Y. 78; Suydam v. Moore, 8 Barb. (N. Y.) 358. 16 Suydam v. Moore, 8 Barb. (N. Y.) 358. "Warax v. Cincinnati &c. R. Co., 72 Fed. Rep. 637; Landers v. Felton, 73 Fed. Rep. 311. 78 Hukiss v. Maysville &c. R. Co., 72 Fed. Rep. 745; Warax v. Cincinnati &c. R. Co., 72 Fed. Rep. 637. 83 the new company. So, where three railroads consolidated under an agreement that the consolidated roads should continue in existence for the purpose of adjusting their debts and claims, and providing that the consolidated company should not be liable for the debts and claims of the original companies, but that the property transferred to it by each of the original companies should continue liable for the debts and liabilities of each,-it was held that before one having an unliquidated claim for damages against one of the original companies could maintain an action therefor against the consolidated company, he must reduce such claim to a liquidated demand.84 In an action for an injury resulting from failure to fence a railroad-track at a point where one railroad crosses another, both railroad companies may be made parties defendant, as the same duty rests upon each company.85 Where two railroad companies use the same track, a car-inspector of one of such companies who is injured by a train of the other company running over the inspector's signal and against the car under which he is working, without notice to him, may suethe other company for his injury.86 It has also been held that wheretwo railroad companies are using the same tracks, an engineer of one of the companies, who is injured by the negligence of a switchman of the other company, may sue the latter company for damages. sustained by such injuries.87 Where the tracks, rolling stock, fixtures and franchises of a railroad company have been sold by a receiver, the purchaser is not responsible for injuries which resulted from the negligence of those in charge of the road prior to the sale and the decree of confirmation.8 And it has been held that, where a receiver has been discharged during the pendency of a suit against him for damages for personal injuries, and the road sold by order of court subject to the receiver's indebtedness, a judgment for damages in such suit is not enforceable against the property of the road so sold and transferred.8 89 At common law a railroad company has no power to lease its road to another corporation, where the charter contains no provision for so doing, and thereby release itself from liability for injuries inflicted by the lessee upon the property and persons of 83 Warren v. Mobile &c. R. Co., 49 Ala. 582; Coggin v. Central R. Co., 62 Ga. 685; s. c. 35 Am. Rep. 132; Batterson v. Chicago &c. R. Co., 53 Mich. 125; s. c. 18 N. W. Rep. 584; Langhome v. Richmond R. Co., 91 Va. 369; s. c. 22 S. E. Rep. 159. S4 Whipple v. Union Pac. R. Co., 28 Kan. 474. 85 Berchold v. Lake Shore &c. R. Co., 4 Ohio Dec. 327; s. c. 1 Cleve. se Kunsman v. Lehigh Valley R.. Co., 10 Pa. Super. 1; s. c. 44 W. N.. C. (Pa.) 14. 8 In re Merrill, 54 Vt. 200. 88 Metz v. Buffalo &c. R. Co., 58. N. Y. 61; s. c. 17 Am. Rep. 201. S9 Schmid v. New York &c. R. Co.,. 32 Hun (N. Y.) 335. others.90 But under legislative authority, a railroad company may be relieved from liability for the negligent acts of the lessee who has control of the leased property." Thus, where the lessee of a railroad is, by statute, made a body politic and corporate upon the acceptance of a lease, and rendered personally liable for its management and operation of the road, an action for damages for personal injuries occasioned by its negligence lies against such lessee, and not against the lessor.92 And it has been held that a railroad company in possession of and operating a road, holding itself out to the public as the operator of the road, is liable for damages resulting to third persons, occasioned by the mismanagement or negligent operation of the road, whether or not its possession be legal.93 It may be stated as a general rule that as between a railroad company and a contractor for the construction of the road, the railroad company is liable for the acts of the contractor's employés in entering upon and digging up of the land of others in the course of construction; and especially is this true where the railroad company thereafter uses and occupies the land so seized in the operation of its railroad.95 But where the contractor, in the course of construction of the road, unlawfully and willfully seized upon and appropriated uncondemned land, the railroad company is not liable therefor, unless it be shown that it subsequently ratified such action.96 However, there is a line of authority to the effect that where a contractor, in the construction of the road, was in the exclusive possession thereof, and at the time the injuries were inflicted the railroad company had no control of the road, the railroad company is not responsible for the injuries inflicted by the contractor or his employés ;97 and it is held that this rule applies V. Singleton v. South Western R. Co., 70 Ga. 464; s. c. 48 Am. Rep. 574; Chicago &c. R. Co. v. Whipple, 22 III. 105; Ohio &c. R. Co. v. Dunbar, 20 I11. 623; s. c. 71 Am. Dec. 291; Cincinnati &c. R. Co. Sleeper, 5 Ohio Dec. 196; Parr v. Spartenburg &c. R. Co., 43 S. C. 197; s. c. 49 Am. St. Rep. 826; 20 S. E. Rep. 1009; Nelson v. Vermont &c. R. Co., 26 Vt. 717; s. c. 62 Am. Dec. 614. 91 Von Steuben v. Central R. Co., 4 Pa. Dist. Rep. 153; Scziwak v. Philadelphia &c. R. Co., 4 Pa. Dist. Rep. 339; International &c. R. Co. v. Underwood, 67 Tex. 589; s. c. 4 S. W. Rep. 216; International &c. R. Co. v. Dunham, 68 Tex. 231; s. c. 4 S. W. Rep. 472; 2 Am. St. Rep. 484. Jacksonville &c. R. Co. v. Penin sular Land &c. Co., 27 Fla. 1, 157; s. c. 9 South. Rep. 661; 17 L. R. A. 33, 65. 93 Jacksonville &c. R. Co. v. Garrison, 30 Fla. 557; s. c. 11 South. Rep. 929; Union R. &c. Co. v. Shacklet, 119 Ill. 232; s. c. 10 N. E. Rep. 896; aff'g s. c. 19 Ill. App. 145; Commonwealth v. Boston &c. R. Co., 65 Mass. 512; Omaha &c. R. Co. v. Morgan, 40 Neb. 604; s. c. 59 N. W. Rep. 81. Cairo &c. R. Co. v. Woolsey, 85 Ill. 370. 05 Bloomfield R. Co. v. Grace, 112 Ind. 128; s. c. 13 N. E. Rep. 680. 06 Waltemeyer v. Wisconsin &c. R. Co., 71 Iowa 626; s. c. 33 N. W. Rep. 140. 97 Kansas Cent. R. Co. v. Fitzsimmons, 18 Kan. 34. even though the contractor is an incorporated company and operates the road for traffic, since the liability of the railroad company does not attach until it goes into the possession and control of the road.98. As between a railroad company and its mortgagees or trustees under the mortgage, it is held, under a statute of Connecticut," that the trustee operating the road for the benefit of bondholders or creditors. is the proper party defendant in an action for damages to a passenger.100 But a railroad company is not relieved from liability for damages resulting from the negligence of its employés, by the fact that it has turned over the management of the road to a trustee under a mortgage.101 So, where the management of a railroad at the time of the injuries complained of was jointly in the trustees under a mortgage and a company that had purchased from the trustees, the trustees retaining possession as security for the purchase-money, both the trustees and the purchasing company may properly be joined in an action for damages.102 A railroad company has been held liable for injuries inflicted upon a five-year-old child while playing upon the defendant's turntable, which the defendant had allowed to remain unfastened and unguarded, although such injuries may have been contributed to by the negligence of another responsible person in revolving the turntable.103 But where a boy was injured by the revolving of a turntable, the railroad company was held not liable where the table was properly fastened by the employés of the railroad, so that a boy of his age and strength could not unfasten it, but the table was unfastened and put in motion by other persons.1 104 So, where an injury was occasioned by defects in a bridge over railroad-tracks which the railroad was under obligations to maintain, the town in which the bridge is located is not a necessary party defendant in an action for damages therefor.105 § 7439. Liability as between Street-Railroad Companies and Other Persons. Under the Connecticut statute106 enacting that one injured 98 Chattanooga &c. R. Co. v. Whitehead, 89 Ga. 190; s. c. 15 S. E. Rep. 44; Atchison &c. R. Co. v. Davis, 34 Kan. 209; s. c. 8 Pac. Rep. 530; Kansas Cent. R. Co. v. Fitzsimmons, 18 Kan. 34; Burton v. Galveston &c. R. Co., 61 Tex. 526; Chicago &c. R. Co. v. Yarbrough (Tex. Civ. App.), 35 S. W. Rep. 422; Dallas &c. R. Co. v. Able, 72 Tex. 150; s. c. 9 S. W. Rep. 871. 99 Conn. Rev. Stat. 1866, p. 196, § 513. 100 Lamphear v. Buckingham, 33 Conn. 237. See also, Wisconsin Cent. R. Co. v. Ross, 142 Ill. 9; s. c. 31 N. E. Rep. 412; 34 Am. St. 101 Jones v. Pennsylvania R. Co., 19 D. C. 178. 102 Lockhart v. Little Rock &c. R. Co., 40 Fed. Rep. 631. 103 Gulf &c. R. Co. v. McWhirter, 77 Tex. 356; s. c. 14 S. W. Rep. 26; 19 Am. St. Rep. 755. 104 Gulf &c. R. Co. v. Evansich, 63 Tex. 54. 105 Martin v. Sherwood, 74 Conn. 475; s. c. 51 Atl. Rep. 526. 106 Conn. Gen. Stat. 1902, § 3838. by a defect in the part of the highway which a street-railroad company is obliged to keep in repair may join such company and the city as parties defendant in action for the damages, he is not authorized to sue the city alone. 107 In an action against a street-railroad company for injuries sustained from the negligence of its employés, the railway company and its president cannot properly be joined as defendants.108 But where a street-car company and a railroad company are both guilty of negligence contributing to the injuries of a streetcar passenger, they may both be joined as defendants without regard to the comparative degree of care or negligence of each.109 However, if injuries have been inflicted by a street-railway company prior to its consolidation with another company, the original company and the consolidated company cannot properly be joined as defendants, though each may be sued alone.110 At common law, as between the lessor and the lessee of a street-railroad, the lessor is responsible for injuries inflicted by a collision of one of its cars with the plaintiff's wagon, although it was drawn by the lessee's horses driven by the lessee's employé.111 But where a street-railroad company required by its charter to keep the portion of the street occupied by the streetrailroad in repair, leases the railroad to another company, the lessee assumes such obligation, and is also responsible for injuries inflicted upon a third person because of a failure thereafter, to keep such portion of the street in repair.112 Where, however, the lessor of a streetrailroad is by its charter rendered liable for damages inflicted upon the persons and property of others by negligence in the operation or management of the road, it cannot be relieved from liability by leasing the road to another company, unless so provided by its charter or by a statute, although the lessee assumes such liability.113 A streetrailroad company and a brewery company may be joined as defendants in an action for the death of a street-car passenger, caused by a negligent collision between a street-car and a brewery wagon, al 107 Lavigne v. New Haven, 75 Conn. 693; s. c. 55 Atl. Rep. 569. See also, Cline v. Crescent City R. Co., 43 La. An. 327; s. c. 9 South. Rep. 122; 26 Am. St. Rep. 187; Carpenter v. Central Park &c. R. Co., 11 Abb. Pr. (N. S.) (N. Y.) 416; Fash v. Third Ave. R. Co., 1 Daly (N. Y.) 148; Snell v. Rochester R. Co., 64 Hun (N. Y.) 476; s. c. 19 N. Y. Supp. 496; Campbell v. Frankford &c. R. Co., 139 Pa. St. 522; s. c. 21 Atl. Rep. 92; 27 W. N. C. (Pa.) 274; Houston City R. Co. v. Dawson, 2 Tex. Unrep. Cas. 223. 108 Brooks v. Galveston City R. Co. (Tex. Civ. App.), 74 S. W. Rep. 330. V. 100 Washington &c. R. Co. Hickey, 5 App. (D. C.) 436; s. c. 23 Wash. L. Rep. 177. 110 Langhorne v. Richmond R. Co., 91 Va. 364; s. c. 22 S. E. Rep. 159. 111 Weyant v. New York &c. R. Co., 10 N. Y. Super. 360. 112 Mullen v. Philadelphia Traction Co., 4 Pa. Co. Ct. 164; s. c. 20 W. N. C. (Pa.) 203. 113 Breslin v. Summerville &c. R. Co., 145 Mass. 64; s. c. 13 N. E. Rep. 65. |