* 3. And it is also true that such towns or cities may claim an indemnity against the railway companies who are first in fault, and in such action recover not only the damages but the costs paid by them, and which were incurred in the reasonable and necessary defence of actions brought against them on account of the defects in such company's works.*

And where the injury did not accrue for more than six years, it was held that the railway was still liable to indemnify the town, notwithstanding the bar of the statute of limitations, reck

duty which every one owes the public in all works which he undertakes? In Barber v. Essex, 27 Vt. R. 62, the following points are decided: An old highway, which a railway proposes to use for its track, is not considered as discontinued till the company have provided a substitute, or unless effected by some other definite legal act, or by an abandonment by legal authority, or nonuser. Towns are responsible to the public for the safe condition of their highways, and cannot excuse themselves from the performance of the duty by showing that a railway company, proceeding under their charter, had caused the defects complained of. The towns are bound to watchfulness upon this subject, and theirs being a primary responsibilty, they cannot shift it upon the railway, whose responsibility is secondary in regard to travellers and the public generally. The towns have their remedy over against the company. See, also, to same effect, Phillips v. Veazie, 40 Maine R. 96. The obligation upon the towns to make highways safe and convenient for travellers continues when they are crossed by railways at grade, except so far as the necessary use of the crossing by the railway may prevent it, and subject to such specific directions as may be given by the county commissioners. Davis v. Leominster, 1 Allen, 182. But towns are not liable for obstructions caused by telegraph poles which they have no right to remove. Young v. Yarmouth, 9 Gray, 386. The railway is also responsible for all unlawful obstructions of the highway. Parker v. Boston & Maine Railw. Co., 3 Cush. 107. But where the duty of maintaining a bridge is imposed exclusively upon the railway, the town is not responsible for any defects in the same. Sawyer v. Northfield, 7 Cush. 490. See, also, Jones v. Waltham, 4 Cush. 299; Vinal v. Dorchester, 7 Gray, 421.

* Lowell v. Boston & Lowell Railw., 23 Pick. 24; Newbury v. Conn. & Pas. Rivers Railw., 25 Vt. R. 377. The recovery in these cases is allowed upon the ground, that the wrong is altogether upon the part of the company, and the town, standing primarily liable to the public for the sufficiency of the highways, and being virtual guarantors against the negligence of the railway company, may therefore recover of them an indemnity, not only for the damages they are compelled to pay, but also the costs and expenses incurred by them in defending bonâ fide against suits brought against them for the default of the company. Duxbury v. Vt. C. Railw., 26 Vt. R. 751, 752, 753; Hayden v. Cabot, 17 Mass. R. 168; Hamden v. New Hav. & Northamp. Co., 27 Conn. R. 158.

oning the cause of action as accruing at the date of the neglect; and that it did not exonerate the company guilty of the neglect, that they had leased their road to another company who were operating it at the time the injury occurred.5

4. And where the statute provides that railways" shall maintain and keep in repair all bridges, with their abutments, which they shall construct for the purpose of enabling their road to pass over or under any road, canal, highway, or other way," and the company omitted to perform the duty in the manner required for the public safety, it was held that the town, within which the road lay, were liable to indictment for not keeping it in safe repair, and that they may compel the railway company to make all such repairs as may be necessary, by writ of mandamus; or if they have been obliged to make expenditures therein, may reimburse themselves by an action on the case against the company.6

5. And where a railway company were authorized by the legislature to construct and operate their road through the streets of a city, and the city government have assented to the location and construction upon a designated route, on certain conditions, it was held that the municipal authority had no power by resolution to annul or impair the grant to the company on account of its failure to complete the road within the time limited in the conditions annexed to their assent. And that such condition was not to be regarded as precedent to the vesting of the estate or franchise, but only a condition subsequent upon the non-performance of which the grantor might elect to defeat it, but that nothing short of a judicial determination would operate to divest the interest of the company.7

6. Where a railway has been laid upon a public street, it does not thereby become public property, in such a sense as to entitle the public at large or other railway companies to use the

5 Hamden v. New H. & North. Co. & N. Y. & N. H. Railw., 27 Conn. R. 158. But where the company have the right to lay their rails in the street, they are not responsible for any injury resulting therefrom to others, unless they have been in fault either in laying them down or in keeping them safe. Magetti v. New York & Harlem Railw., 3 E. D. Smith, 98: post, § 225, pl. 7. • State v. Gorham, 37 Maine R. 451.

Brooklyn Central Railw. v. Brooklyn City Railw., 32 Barb. 358.

track for the passage of carriages constructed for such use.” Nor will the permission of the municipal authorities for that purpose give any such right.7

7. Where a railway company is required to construct its road so as not to obstruct the safe and convenient use of the highway, this is a continuing obligation requiring the company to so maintain their road as to leave the highway safe and convenient for public use; but this will not exonerate the towns from their primary responsibility.8

8. Cities or towns are not liable for damages resulting from the proper exercise of authority in permitting railway tracks to be laid in the streets, or in raising the grade of streets, unless they exceed their lawful authority in this respect.9 And it is here said to be a legitimate use of a street to allow a railway track to be laid in it.

9. Where a canal company had constructed a bridge as part of the farm accommodations of an adjoining land-owner which the company were bound to maintain, and a railway company by subsequent legislative grant had laid its track along the line of the canal, and in consequence had been compelled to alter the construction of the bridge so as to render it more expensive to maintain the same, it was held the canal company were not thereby exonerated from maintaining the bridge, but were liable to the land-owner the same as before the alteration by the railway company, notwithstanding any liability which might rest upon the railway company.10

10. Where a railway crossed on a level a considerably frequented footpath, and there was no servant of the company at the crossing to warn persons of the approach of the trains, the view being somewhat obstructed by the pier of the bridge, but a person before reaching the track could see nearly three hundred yards either way along the line, and the plaintiff's wife, while crossing the line at the spot was run over and killed, it was held that the fact of the company not keeping a servant at the crossing to warn persons of the approach of trains, was not evidence of negligence to go to the jury.11

9

• Wellcome v. Leeds, 51 Me. R. 313.

• Murphy v. City of Chicago, 29 Ill. R. 279.

10 Ammermon v. Wyoming Land Co., 40 Penn. St. 256.

11 Stapley v. London, Brighton &c., Railw. Co., 11 Jur. N. S. 954.

11. And where it was made, by statute, the duty of a railway company to maintain gates at all level crossings of highways, and to have persons to open and shut them when any one wished to pass, but at all other times they were to be kept shut, and a person coming along the highway when no servant of the company, was present, as he should have been, to open and shut the gates, the plaintiff having waited a reasonable time opened the gates himself in order that he might be able to proceed on his journey, and in doing so was injured by the closing of the gates, which were so constructed as to fall back into their places with their own weight, it was held the action would not lie, one judge dissenting.12 This case was decided mainly upon the ground that by the act of parliament requiring the gates to be kept closed, except when opened by the servants of the company, it amounted to a virtual prohibition of any one crossing the railway at any other time, and if the plaintiff found no servant of the company to open the gate, it was his duty to wait until he could find one, and seek his remedy for the delay against the company; and being a wrong-doer in opening the gate, he could not recover of the company for any injury he thereby sustained.

Wyatt v. Great Western Railw. Co., 11 Jur. N. S. 825.

*SECTION V:

Liability for Injury in the Nature of Torts.

1. Railway crossings upon a level always 6. Not liable for injury to cattle trespassing,

dangerous.

2. Company not excused by use of the signals required by statute.

3. Party cannot recover if his own act contributed to injury.

4. But company liable still if they might have avoided the injury.

5. If company omit proper signals, not liable, unless that produce the injury.

unless guilty of wilful wrong.

§ 133. 1. We have discussed the subject of this chapter, in general, in former sections. We shall here refer to some cases, where railway companies have been held liable for injuries to persons, in no way connected with them by contract or duty. The subject of railway crossings,2 on a level with the highway, has been before alluded to, as one demanding the grave consideration of the legislatures of the several states. It causes always a most painful sense of peril, especially where there is any considerable travel upon the highway, and is followed by many painful scenes of mutilation and death, under circumstances more distressing, if possible, than even the accidents, so destructive sometimes to railway passengers.

3

2. In a case where the plaintiff was injured at a railway crossing, by the collision of an engine, it was held that where the statute required, at such points, certain specified signals, the compliance with the requirements of the statute will not excuse

3 Bradley v. Boston & Maine Railw., 2 Cush. 539. Some distinction is made by the judge, in trying this case, between those cases of negligence which occur in long-established modes of business, and the case of the management of railway trains; that in the former case usage, if uniform and acquiesced in by the public, may amount to a rule of law; but not in a business so recent as the management of railway trains. This view seems to be sanctioned by the Supreme Court in revising the case. See, also, Gleason v. Briggs, 28 Vt. R. 185; Linfield v. Old Colony Railway, 10 Cush. 562.