$249. Contractors are held to be servants of the company. Whatever they or their subordinates do in the natural course of business the law holds to have been done in the capacity of agent for the corporation.1 It follows that the latter is subject to the general liability of principal as truly during the construction of its road as afterwards when it is in operation, although the operating of a road is more frequently conducted directly by the company than is its construction.

$250. By express statutory provision witnesses may in some railway cases give their opinion, as well as state facts. In an early case an inferior court allowed the witness to give his opinion upon the proper interpretation to put upon a construction contract, although he was not brought on the stand as an expert. The supreme court held that the court, and not the witness, must be the judge of such a point. Several decisions confirm that doctrine.2

§ 251. In a case involving the corporate rights of an institution then existing under a state charter the court held that a corporation cannot enter into partnership. 3 It was held, however, that two or more corporations may become jointly bound by the same contract. According to this doctrine, a railroad company cannot form a partnership, in form, at least, with

Collier & Powell, Breese, 297; Stacy v. Baker, 1 Scam. 417; Forsyth et al. v. Baxter et al. 2 Scam. 12; Webster v. Massey, 2 Wash. C. C. R. 157; Cox et al. v. The United States, 6 Peters, 172; Green v. Sarmiento, Peters C. R. R. 74.

2

1 Lesher v. Wabash Navigation Co. 14 Ill. 85.

Alton, etc. R. R. Co. v. Northcote, 15 Ill. 49; Sigsworth v. McIntyre, 18 Ill. 128; Taylor v. Beck, 13 Ill. 376; McAvoy v. Long, 13 Ill. 147.

3 Marine Bank of Chicago v. Ogden, 29 Ill. 248.

a contractor, or a construction company. For an officer of a railroad company to be interested in a construction contract would be a breach of a fiduciary trust, unless he were so with the knowledge and consent of all the stockholders

CHAPTER VI.

RAILWAY LIABILITIES.

I. PASSENGER LIABILITIES.
II. FREIGHT LIABILITIES.
III. CAR SERVICE.

IV. CROSSINGS; SIGNALS; FLAGS.

V. SERVANTS; FIRES.

VI. FENCES; OBSTRUCTIONS.

VII. LIVE STOCK; THISTLES.

I. PASSENGER LIABILITIES.

§ 252. Importance of the responsibility.

253. Private liability; common carrier liability. 254. Relative duties of carrier and passenger.

255. Liability for injuries.

256. General homicidal liabilities.

257. Right of action.

258. Measure of damages; paupers.

259. Admission of testimony.

260. Criminal Carelessness.

261. Miscellaneous liabilities.

262. Uniformity of charges.

263. Procuring tickets in advance.

264. Refusal to pay fare.

265. Through trains and way passengers.

266. Carrying past the point of destination

267. Passenger cars and freight trains.

268. Freight cars and passenger trains.

269. Reasonable rules.

270. What are reasonable rules.

271. Baggage liability.

272. Checks; baggage in store.

273. Free passes.

274. Lay-over tickets.

275. Larceny of tickets.

276. Traffic on passenger trains.

$252. The railway liability fraught with the gravest responsibility is that resulting from the carriage of passengers. This is true whether we consider the importance of personal safety, or the pecuniary risks of the carrier. Illinois has been happily exempt from railway disasters. During the year ending June 30, 1872, only eight passengers in the entire state were killed. A prairie country is less liable to rail accidents than a hilly country, where there are deep cuts, short curves and high embankments. Legislation in this state has done almost nothing to protect the lives of passengers. The common law, although minute, is not sufficient. At the beginning of the final session of the twenty-eighth general assembly a measure designed to lessen the peril of travel by rail was introduced in the senate by Gen. Fuller, chairman of the railroad committee. It passed the senate, but never reached a vote in the house.

§ 253. If railroads were private roads, and the companies not common carriers, they could be held liable only for carelessness so gross as to have in it an element of criminality.1 The theory is, however, that the carrier is not an insurer of personal safety against every accident or injury, save those arising from the act of God or the public enemy, as is the case with freight carriage. An injury may occur by mere mischance, without any fault or negligence on the part of the railroad company or its servants. For such misfortunes the carrier is not deemed responsible. He is liable only for a want of reasonable skill, diligence and This difference between freight and passenger

care.

1

Chicago and Aurora R. R. Co. v. Thompson, 19 Ill. 578.

liability is based on the nature of the case. Goods are entirely in the control of the carrier. The passenger cannot be completely controlled.1

$254. Passenger and carrier have reciprocal duties. The former is bound to avoid any unnecessary risks, and the latter to take all possible precautions against accident in the provision of suitable coaches and the observance of the most approved methods of conducting his business. The highest degree of caution consistent with proper speed is required. Failure to use the latest appliance, such for example as the "airbrake," would be considered a mark of negligence. Comfort and safety must be considered. But while a carrier is thus obliged to do all that human foresight, care and vigilance can reasonably do, consistent with the mode of conveyance and practical operation of the road, yet he will not be held to a degree of care which would be so expensive as to render it impracticable to continue the business."

§ 255. In case of injury the railroad company is liable for the loss of time; the expense of doctors, nurses, etc. Issue is joined in case of litigation either upon the measure of the responsibility or the amount due on those accounts. In the event of permanent injury the claims allowed are somewhat in the nature of consequential damages. The jury is allowed to estimate the probable pecuniary loss to the person in

'Frink v. Potter, 17 Ill. 406.

2 Ohio and Mississippi R. R. Co. v. Muhling, 30 Ill. 9; Frink v. Potter, 17 Ill. 406; Tuller v. Talbot, 23 Ill. 357; Galena and Chicago Union R. R. Co. v. Yarwood, 15 Ill. 468; C. B. and Q. R. R. Co. v. Hazzard, 26 Ill. 373.

3

Pittsburgh, Cincinnati and St. Louis R. R Co. v. Thompson, 56 Ill. 138.