ployees of their patrons of the approach of trains, and such an employee is injured through the failure of the coal merchants to provide a watchman to give such warning, such failure will be no defense to the railroad company, in an action against it, for negligence in failing to observe a city ordinance requiring certain signals to be given. Dunkman v. Wabash, St. L. & P. R. Co. (Mo), 10 West. Rep. 396. PHILADELPHIA, WILMINGTON AND BALTIMORE R. Co. v. HAHN. (Advance Case, Pennsylvania. February 6, 1888.) A railroad company cannot, by contracting for the moving of its cars by horse-power over its own tracks from one of its depots to the various consignees, relieve itself from liability for injuries caused by the negligence of the contractor, although such contractor employed the horses and men engaged in such work, and exercised an independent control over them. January term, 1887, before Gordon, Ch. J., Paxson, Sterrett, Green Clark, and Williams, J.J. ERROR to common pleas No. 2, of Philadelphia county, to review a judgment entered in a verdict for the plaintiff in an action on the case. Affirmed. The plaintiff, Michael Hahn, brought this action against the Philadelphia, Wilmington & Baltimore R. Co. to recover damages for injuries alleged to have been occasioned by the negligence of the defendants. The defendant had a station on Washington avenue, near Broad street, in the city of Philadelphia, whence its railroad tracks continued easterly along said avenue to the Delaware river, with various sidings into various premises along said avenue. One of these sidings was into the coal yard of Branson & Bro., on south side of Washington avenue, between Eleventh and Twelfth streets. November 16, 1883, there were a number of cars standing on the south main track of Washington avenue, extending from a point west of Branson's easterly to Eleventh street, with an opening of about thirty-five feet between the cars opposite Branson's, which opening had been there several hours. The approach to Twelfth street from Bransons', on the south side of Washington avenue, was blocked by cars on the various sidings. Michael Hahn, who was in the employ of the Bransons, was sent with a load of coal from Bransons', to be taken to Sixteenth and Wharton streets; and to reach Twelfth street (on which street there is a horse railway, with the right of way to Sixteenth and Wharton streets) attempted to cross Washington avenue through said opening when his cart was struck by approaching cars and he was thrown therefrom and injured. The cars were drawn by nine mules and one horse; and plaintiff introduced evidence tending to prove that before he attempted to drive his cart through the opening he looked toward the cars a number of times and could not see that any mules were attached to said cars. There was also evidence that his view of the mules was obstructed by a box car and that the cars were started suddenly and without warning. The defendant proved that the shifting of the cars was under the control of one Lafferty, with whom the company had verbally contracted for moving the cars of the company from its depot, and for delivering them to the respective consignees and returning the cars empty to the depot; and it claimed that Lafferty was an independent contractor and not its servant or agent, and that it was not liable for the negligence of the said contractor or his employees. It was admitted that the transportation over this road had been for years exclusively under the control of the defendant company, except as deputed in part to others as in this case. The defendant put its charter in evidence, a part of which is as follows: "Sec. 15. That on the completion of the said railroad, the same shall be deemed a public highway for the conveyance of passengers and transportation of merchandise and commodities under such regulations as shall be prescribed by the directors; and it shall and may be lawful for the said company to demand and receive such sums of money for tolls of persons and property as they shall from time to time think reasonable: Provided, That the toll on any species of property shall not exceed eight cents per ton per mile, nor upon passengers more than four cents each per mile. "Sec. 16. That if any owner or driver of any car, carriage, wagon, or conveyance upon the said railroad shall pass by any place appointed for receiving tolls without making thereof... shall forfeit," etc. The defendant company requested the court to charge: "Under the charter of the defendant company, it has the legal right to depute the hauling of cars at its terminal, and if the injury was caused by its contractor or his employees, the verdict should be for the railroad defendant." Refused. (1) "The defendant company had a legal right to make a contract with Lafferty for the drawing of cars; and such contract relieved it from all responsibility for the acts of the said Lafferty or his employees; and the verdict in this case, under the evidence, should be for the railroad company defendant." Refused. (2) "Under the evidence in this case Lafferty was an independent contractor, and the railroad company is not responsible for his acts or the acts of those he employs; and your verdict must be for the railroad company defendant." Refused. (3) "As the evidence in this case shows that the persons having charge of the cars from which the injury happened were exclusively under the control of Lafferty, and not under the control of the railroad company, there can be no recovery in this case, and your verdict must be for the defendant railroad company." Refused. (4) Verdict and judgment for the plaintiff, for $2500. The assignments of error specified the refusal of the court to charge as above requested. Gavin W. Hart and David W. Sellers for plaintiff in error. PER CURIAM.-The doctrine contended for on the part of the plaintiff in error cannot be sustained. It contracted for the operation of a part of its road by horse-power, and under this contract asks to be relieved from all responsibility for the negligent acts of its contractor. We cannot agree with a proposition of this kind, for the principle, if established, might be the means of relieving the company from all its charter duties, so far, at least, as concerns the public safety. The mere question of the power by which its cars are to be moved is of no consequence. If it can contract for horse-power, so may it for steam; and it follows that it might relieve itself of all responsibility by contract with its engineers and conductors for the running of its locomotives and trains. It needs no argument to show that a railroad company cannot escape its charter obligations by a quibble such as this. The judgment is affirmed. Liability of Railroad Company for Torts of Independent Contractor.-See Conlon v. Eastern R. Co., 15 Am. & Eng. R. R. Cas. 99; Hughes v. Cincinnati, etc., R. Co., 15 Ib. 100; New Orleans, etc., R. Co. v. Reese, 18 Ib. 110; Edmundson v. Pittsburgh, etc., R. Co., 23 Ib. 423; Murfeldt v. New York, etc., R. Co., 25 Ib. 144. NICHOLS, Admr., v. WASHINGTON, OHIO AND WESTERN R. Co. (Advance Case, Virginia. 1887.) The defendant company, in order to keep open a path leading from a village to its railway station across a switch, habitually parted the cars standing on this switch. The plaintiff's intestate, while on his way to the station, attempted to cross this track when the space between the parted cars was only 18 inches, and was caught and killed by the sudden backing of the train. When he reached the track he could not see the engine and had no notice that the cars were about to start. Held, that the company was liable; its acts in keeping the crossing open constituting an invitation to the public to use it in coming to the station, and the deceased was not guilty of contributory negligence. ERROR to circuit court, Loudoun county. Holmes Conrad and Ed. Nichols for plaintiff in error. HINTON, J.-This is an action of tort, brought by the personal representative of Francis E. Nichols, to recover damages for injuries sustained by him which caused his death. A trial was had before a jury, which resulted in a verdict for the plain FACTS. tiff for $4000. This verdict the court, upon the defendant's motion, set aside; and to this action of the court, as well as its action in refusing certain instructions and in giving others, the plaintiff duly excepted. At the next term the case was submitted to the court, when a judgment was rendered for the defendant, and thereupon this writ of error was taken. The facts certified as proven on the first trial, and submitted to the judge on the second, with the plat filed as a part thereof, show the topography of the ground, the location of the depot and other buildings in the vicinity, and the position of the cars on defendant's track immediately preceding the accident to have been as follows: The main track of the defendant's railroad runs nearly due east and west; and about 150 yards south thereof and parallel thereto is a pike running through the centre of the village of Purcellville. From this pike a road runs in a northwesterly direction across the railroad to Hillsboro. Extending eastwardly from this road, and immediately south of the railroad, is the freight depot, and adjoining which, but still further east is the passenger depot. Along the north side of both freight and passenger depots is a platform, usually more or less obstructed by the freight and express goods habitually unloaded thereon; and along the east end of the passenger depot there is also a platform with three steps at its southern terminus extending to the ground. Beginning at a point on the main track, some distance west of the Hillsboro road is a switch which extends eastwardly across said road, and around and beyond said depot buildings, and from aʻ point on the Hillsboro road, about 60 yards south of the passenger depot, is a path which extends toward the steps at the souteastern corner of the passenger depot; and this path is usually taken by persons going to and from the depot. The land east of the Hillsboro road, and south of the railroad, is open and nearly level, while that west of the Hillsboro road, and south of the railroad, is a wood, dense near the pike and sparsely timbered as it extends northwestwardly toward the switch. The switch, or rather that portion of the switch west of the Hillsboro road, runs through a cut so deep that, by reason thereof, and the intervention of a warehouse, which stands near the track, the smoke-stack of an engine can only be seen by persons going along the before-mentioned path while in the line of vision between the warehouse and the switch. It appears that it was the invariable custom of the agent at the depot to part freight cars immediately after they were left or placed on the switch at a point nearly opposite the passenger depot, for the purpose of affording a passage to the patrons and employees of the road, and it specially appears that it had been done in this instance, although it would seem that from lack of assistance the opening left was scarcely as wide as usual. At no time was anything said or done by the defendant's agents or employees to convey to the public the idea that they should not cross the track at these openings. On the morning of the accident, there were standing on the switch two or more cars west of the road, and five cars east of the road. These five cars had been parted on the preceding day, by the company's agent, a distance of 18 inches or more, about midway between the path and the steps at the southeast corner and the platform of the passenger depot, for the express purpose of allowing people to pass over the track. And this was the condition of the cars on the morning of the 9th of August, 1883, when the intestate, Frank E. Nichols, who was on his way to the depot to meet his brother, who was expected home on the train due at 12 M., while in the act of passing over the track, was caught between the cars and killed by the sudden and rapid backing of the engine which drove the cars together. DUTIES OWING Now, it is agreed on all hands that there is a wide difference between the obligation which a person or corporation DIFFERENCE IN owes to a mere licensee, and the duty which the same TO LICENSEE AND person or corporation owes to one who comes upon his premises by an invitation, either expressed or implied. In the first case it is generally admitted that the party comes at his own risk, and enjoys the license subject to its concom PARTY HAVING |