#### The Maumee Valley Railways & Light Company *v.*Montgomery et al.

*A common carrier, owner of its tracks*— Liable *to passenger injured in collision*— Between *its car and car of another*company— *Admitted to joint use of track*— Liability *of each company*— May *be enforced in samé action, when.*

1. A common carrier, being the owner of its track, is liable to its passenger for an injury received in a collision between its car and the car of another carrying company which it admits to the • joint use of its track, though the collision may result wholly from the negligence of the latter company.

2. In such case the liability of the owning company for the breach of its contract of carriage, and that of the other for its negligence may be enforced in the same action, and the facts should be so determined by interrogatories or special findings that liability for ’compensation to the injured passenger may ultimately rest upon the company whose negligence occasioned the injury.

(No. 11760

Decided February 23, 1910.)

Error to the Circuit Court, of Lucas county.

Montgomery brought suit in the court of common pleas against The Maumee Valley Railways & Light Company and The Toledo Urban & Interurban Railway Company to recover on account of personal injuries sustained by him while a passenger on a car owned by The Maumee Valley Company, the injury being occasioned by a collision between two electric cars, one owned and operated by each of the companies, upon a track owned by The Maumee Company and used by both companies in the operation of their traction cars under a running arrangement which we do not find stated in detail in the record. In his *427petition the plaintiff charged that both cars were operated negligently, and that that negligence combined to cause the collision in which he was injured. Both companies in their separate answers admitted the joint use of the track owned by The Maumee Company; that a collision between their cars occurred and that the plaintiff sustained some injuries. Each denied the allegations of negligence against it. On the trial, evidence was introduced tending to show negligence of both companies. The jury returned a verdict in favor of Montgomery against the Urban and Interurban company but in favor of The Maumee Valley Company. Motions for a new trial were filed and overruled and judgment was entered upon the verdict. On petition in error, as shown by its record, the circuit court reversed the judgment of the court of common pleas for error in refusing to give the following instruction which was requested: “If the jury find from the evidence that The Toledo Urban & Interurban Railway Company ran its car over the tracks of The Maumee Valley Railways & Light Company with the permission or the knowledge of The Maumee Valley Railways & Light Company, then the said The Maumee Valley Railways & Light Company would be responsible for accidents caused to passengers which it itself carries, by the. negligence of the servants or agents of the other company so running its cars over its track by its permission or with its knowledge.” The circuit court also specified as error, on account of which it. reversed the judgment, the following portions of the instructions given. by the common plea© judge to the *428jury: “The servants of The Maumee Valley Railways & Light Company, in operating the car upon which, plaintiff was riding, were not bound to foresee or anticipate any negligent act on the part of the employes of the car of The Toledo Urban & Interurban Railway Company, and if the jury find that the car of The Maumee Valley Railways & Light Company had come to a stop before the collision, and the jury shall further find that the collision so occurred by reason of a failure on the part of an employe or employes or The Toledo Urban & Interurban Railway Company to use that degree of care which ordinarily prudent persons under like or similar circumstances would have used, then you are instructed that your verdict should be in fayor of the defendant, The Maumee Valley Railways & Light Company.” “The jury are instructed as a matter of law that, in determining your verdict in this case you should not hold the defendant, The Maumee Valley Railways & Light Company, liable, for any acts of negligence which you may find have been committed by the defendant, The Toledo Urban & Interurban Railway Company. You should not charge the defendant The Maumee Valley Railways & Light Company, in this case with any act or omission or any mistake, which you find from the evidence was committed by the defendant, The Toledo Urban & Interurban Railway Company, or its servants.” The same view of the liabilities of the companies is expressed in other portions of the charge because of which the circuit court reversed the judgment. The circuit court upon reversing the judgment re*429manded the cause to the court of 'common pleas for a new trial.

*Messrs. Smith & Baker,*for plaintiff in error.

*Mr. John R. Kelly*and *Mr. Ashton H. Cold-ham,*for Montgomery.

*Messrs. Lloyd & Rettig*and *Messrs. King, Tracy, Chapman. & Welles,*for the Interurban Company.

Shauck, J.

The view which the trial judge consistently presented to the jury, both in giving instructions and refusing instructions requested, was that each of the companies was liable to the plaintiff,- Montgomery, if his injury was caused by its negligence or the negligence of its servants, but that neither company was liable on account of the negligence of servants of the other. With respect to The Maumee Company it is to be observed that it was the carrier of Montgomery at the time of the collision which resulted in his injury, and it was the owner of the track upon which the collision occurred. According to the view which led to the judgment in its favor in the court of common pleas, it is without liability to its own passenger on account of injuries which he sustained in a collision which resulted wholly from the negligent operation of a car belonging to, and operated by, another carrier which it had admitted to the joint use of its track. That view is not consistent with either the considerations involved or the adjudicated cases. The elements of *430care involved in the contract of carriage embrace all conditions which affect the passenger’s safety. They extend to the permitted use or occupation of the carrier’s track, not less distinctly than to the condition of .the track, or to the operation of the carrier’s own cars. No principle is suggested which would afford immunity to the owning carrier from the liability for the negligence of its licensee in a case of this character. That there is no such immunity has been held in numerous cases, among which are *Railroad Company*v. *Barron,*5 Wall., 90; *Delaware, Lackawana & Western Railroad Company*v. *Salmon,*39 N. J. L., 299; *Jefferson*v. *Railway Company, 117*Wis., 549; and *Pennsylvania Company*v. *Ellett, Admr.,*132 Ill., 654. The case under consideration, and the cases cited, are quite readily distinguished from those cases in which a- company owning a track and leasing it to another company for the exclusive operation of trains and cars thereon, itself wholly ceases to operate cars and trains. In such a case the question here presented could not arise.

It is urged upon our attention that the petition does not allege, and the evidence does not tend to show,, any act of negligence participated in by both of the companies joined in the action. But the companies voluntarily entered into such relations that the negligence of either might have caused the collision in which Montgomery was injured, or it might have been caused by the negligence of both. It might have resulted from the sole neglig'ence of the Interurban Company with a liability against it upon that ground with *431a concurrent' liability of the Maumee Company because of the breach of its contract of carriage. Such relations are alleged in the pleadings and they appear in the evidence. The original plaintiff was wholly without fault contributing to his injury. His right to recover against one, or both of the companies, is entirely clear. If the collision resulted solely from the negligence of the Interurban Company the liability should ultimately fall upon it. But that liability may be enforced in the same action as the liability of The Maumee. Company for the breach of its contract. The original plaintiff was obliged neither to waive his right of action against either company, nor to choose at his peril against which company he would bring his action. We are aware of no rule of law which requires several actions to determine the rights, and liabilities of the parties in such a case. That they may be determined in one action appears from *Morris*v. *Woodburn, 57*Ohio St., 330; *Chicago*v. *Robbins,*2 Black, 418; *City of Rochester*v. *Campbell,*123 N. Y., 405.

The original plaintiff, upon the principles already stated, may be entitled to judgment against both companies, though of course he is entitled to but one satisfaction. It will be proper upon a re-triai of the cause, as it would have been upon the original trial, by special interrogatories to the jury and the action of the court upon its answers thereto, to determine, if • such shall appear to be the truth, • that the Interurban Company ' is liable because of its sole negligence, and The Maumee Company because of its breach of contract, the execution to run firstly against the former com*432pany, and if it be not satisfied, then against the latter.

The circuit court properly reversed the judgment and remanded the cause for a new trial, and its judgment will be affirmed.

*Judgment affirmed.*

Summers, C. J., Crew, Spear, Davis and Price, JJ-, concur.