Sec. 913. Liability of carrier where the immediate cause of the injury is the negligent act of a third person. In an action by the passenger to recover damages for an injury suffered, it will be no excuse to the carrier that the immediate cause of the injury was the negligent act of some third person, between whom and the carrier no relation whatever existed, if his own negligence in any degree concurred in bringing the injury about. The carrier is under the duty of protecting the passenger from all dangers which are known, or which by the exercise of a high degree of care and foresight ought to be known, whether occasioned by himself or by another for whose conduct he is in no manner responsible. If, therefore, the immediate cause of the injury was the negligent act of some third person, and such act, by the exercise of a due degree of care and foresight ought to have been foreseen by the carrier, his omission to provide against it will be actionable negligence, and either or both of the wrong-doers can be held responsible.32 Thus where a boy, while playing about a note. See also, St. Louis, etc. though the consignee had carelessly thrown the door open so as to come in contact with passing trains, the carrier was nevertheless responsible for its negligence in placing the car in a position where it ought to have foreseen that such an accident might happen, and that the negligence of the consignee was no excuse. In Dufur v. The Railroad, 75 Vt. 165, 53 Atl. Rep. 1068, the plaintiff, while a passenger in one of the defendant's passenger cars, which had been temporarily placed upon a side track, was accidentally injured by a bullet from the firearm of a person who was near it standing the side track shooting at a target. The court, in its opinion, said: "If the defendant ought to have foreseen that such an accident might hap and soon struck against the side of a passenger train which was passing on the main track, causing injury to a passenger. It was held that al passenger car in which a passenger was sitting, loosened the brake on the car, and in consequence the car ran swiftly over a down grade causing injury to the passenger, it was held that although the loosening of the brake was the act of a trespasser, the carrier was nevertheless responsible for having omitted to use sufficient means to keep the car properly secured.33 And where the plaintiff, while passing over the gang-plank of the defendant's boat, was precipitated into the water and injured by the giving way of the gang-plank, and it appeared that the negligent operation of another boat which was tying to the boat from which the plaintiff was departing caused the gangplank to fall, it was held that although the negligence of a stranger was the immediate cause of the plaintiff's injury, such negligence was no excuse to the defendant where it had failed to have the gang-plank properly secured.34 So where the immediate cause of an injury to the passenger is an act of God, the carrier will not be excused if his negligence has concurred in any degree in causing the injury.35 Sec. 914. Liability of carrier where injury is due to an intervening cause. The principle is well settled that, if sub pen, or, if such an accident could reasonably have been anticipated, the omission to provide against it would be actionable negligence, and the plaintiff would have a right of action against either or both of the wrongdoers." See also, Texas, etc. R'y Co. v. Story, 29 Tex. Civ. App. 483, 68 S. W. Rep. 534; Missouri, etc. R'y Co. v. Wolf, (Tex. Civ. App.) 89 S. W. Rep. 778. 33. Railroad Co. v. Herold, 74 Md. 510, 22 Atl. Rep. 323, 14 L. R. A. 75. cause of the accident being the negligent operation of a boat belonging to a third person which caused it to run into a wharf boat over which the passenger was required to pass in order to reach shore, it was held that the carriers were jointly or severally liable, and that the fact that those in charge of the boat of the third person were more negligent than those in charge of the boat upon which the passenger was being carried was immaterial. Louis 34. Croft v. Steamship Co., 20 ville, etc. Mail Co. v. Barnes, 25 Wash. 175, 55 Pac. Rep. 42. Ky. Law Rep. 2036, 79 S. W. Rep. 261, 64 L. R. A. 574. Where a passenger, owing to the insufficient means provided by the carrier for passengers to alight from its boat, fell into the water and was drowned, the immediate 35. Chicago, etc. R'y Co. C. Cain, (Tex. Civ. App.) 84 S. W. Rep. 682. sequent to a wrongful or negligent act, a new cause intervenes which in itself is sufficient to produce the injury, the original wrongful act will be considered as too remote to be made the basis of an action. But if the character of the intervening cause which is claimed to have broken the causal connection between the original wrongful act and the subsequent injury should be such that its consequences ought reasonably to have been foreseen and anticipated by the original wrongdoer, his act would, in law, be considered the proximate cause of the injury, and he could be held responsible. In The Railway Co. t. Webb,36 it appeared that the plaintiff's son, while a passenger on the defendant's train, was violently thrown to the ground by a sudden jerk of the train and rendered unconscious by falling upon an adjoining track. The defendant's servants made no effort to remove him from the track, although they knew, or should have known, that trains were frequently passing over the track. Shortly afterwards he was run over and killed by an engine belonging to the Georgia Railroad Company which had a right to use the track. The defendant contended that an intervening cause had produced the injury, and that it was therefore not liable. But the court, in deciding that the defendant should be held responsible for the injury, said: "The defendant company knew that the Georgia Railroad Company had a right to use these tracks. It also knew that it might use them at any time. When, therefore, Webb was negligently thrown upon the tracks and left 36. 116 Ga. 152, 42 S. E. Rep. had notice that he had fallen from 395, 59 L. R. A. 109. In Cincinnati, etc. R. Co. v. Kassen, 49 Ohio St. 230, 31 N. E. Rep. 282, 16 L. R. A. 674, it appeared that a passenger through his own negligence was thrown from a rapidly moving train and rendered unconscious by striking on the track. He was later run over by another train on the same track. The servants in charge of the train from which he had fallen the train, but made no effort to avert the injury which later happened. It was held that under the circumstances it was the duty of those in charge of the train from which the passenger had fallen to stop the train and remove him from the track, or at least to use reasonable means to prevent the happening of the injury; that having failed to do so the railroad company was liable. there in a helpless condition, the defendant was bound to apprehend and anticipate that injurious consequences would likely result from the use of the track by the servants and agents of the Georgia Railroad Company in charge of its engines and trains. This being so, the negligence of the defendant, which resulted in leaving Webb helpless upon its tracks, was in law the proximate cause of his death, notwithstanding his death was actually brought about by another agency.' Sec. 915. (§ 514.) Liability of railway carrier having running powers over other road. It has also been determined that a railway carrier who has running powers over the line, or any portion of the line, of another company, is responsible to its own passengers for injuries sustained by them through negligence in the management of the latter road, although the company carrying the passenger had no control over the road. in fault, and was not, in other respects, responsible for its management. In other words, where a railway company contracts with a passenger to carry him from one terminus to another, and on the journey its train has to pass over the line of another railway company, the company making the contract for the carriage and issuing its ticket to the passenger incurs the same responsibility as it would do if the entire line belonged to it and was under its control.37 This liability grows out of the implied contract in every such case, that the carrying company takes upon itself the responsibility of due care and caution on the part of all the agencies which it employs to effect the transportation of the passenger; and therefore it can make no difference as to its liability what the nature or 37. If a railroad company operates its trains over the road of another company, it must see and know that the track is in good condition, and that the trains of the other company are so ordered that they will not interfere with the full discharge of the duty which it owes to its passengers. If the trains of such other company are so ordered as to interfere with the duty which the former company owes to its passengers, it must provide against all consequent dangers. Murray v. The Railroad, 66 Conn. 512, 34 Atl. Rep. 506, 32 L. R. A. 539. consideration of the contract is under which it enjoys the right to use the road; and it will be the same whether the arrangement be made with such other road upon the basis of a division of profits, or of the gross receipts in a specified proportion, or of the payment of certain tolls, or of a mere gratuitous license by the other company. Nor can such company defend itself against the claim of the passenger by showing that it was not in fault, but that the whole blame rested upon the company whose road it was thus using.38 The same rule was applied where the track of the carrier ran over a public bridge.39 Sec. 916. Liability of carrier for safety of intermediate agencies employed.-If, during the transportation of the passenger, the carrier makes use of an agency which is unsafe, and by reason thereof the passenger is injured, the carrier will be liable for the injury although such agency was owned by another.40 The contract of carriage, it is said, is interpreted 38. Great Western Railway v. Blake, 7 H. & N. 987; Buxton v. The Railway Co., L. R. 3 Q. B. 549; Thomas v. The Railway, L. R. 5 Q. B. 226; Candee v. Pennsylvania R. R., 21 Wis. 582; Toledo, etc. R. R. v. Rumbold, 40 Ill. 143; Wyman v. The Railroad, 46 Me: 162; Nelson v. The Railroad, 26 Vt. 717; Schopman v. The Railroad, 9 Cush, 24; Railway Co. v. Howard, 178 U. S. 153, 44 L. Ed. 1015; Barkman v. The Railroad, 89 Fed. Rep. 453; Dunn v. The Railroad, 71 N. J. Law, 21, 58 Atl. Rep. 164; Railway Co. v. Martin, 59 Kan. 473, 53 Pac. Rep. 461. Where in pursuance of a contract, a railroad company runs its trains over a portion of the road of another company, and it is provided in the contract that the trains of the lessee company, while on such leased road, shall be un der the control and direction of 40. Williams v. Vanderbilt, 28 N. Y. 217; Hart v. The Railroad, 8 id. 37; McElroy v. The Railroad, 4 Cush. 400; Peters v. Rylands, 20 Penn. St. 497; Bostwick v. Champion, 11 Wend. 571; 18 id. 175; Weed v. The Railroad, 19 id. 534; Schopman v. The Railway Co., 9 Cush. 24; Railroad Co. v. Barron, 5 Wall. 90; Nashville, etc. R. R. v. Carroll, 6 Heisk. 347; Murch v. The Railroad, 29 N. H. 9; Stoddard v. The Railroad, 181 Mass. |