Rolfe v. Railroad , 69 N.H. 476 ( 1898 )

It was a part of the railroad's duty to so conduct its business as not to negligently injure the property of others. Heating the car was a reasonable and necessary thing to do. Without it the potatoes could not have been safely transported. It was a part of the actual operation of the road, and cannot be separated from it, so far as the rights of third persons are concerned, by any contract between the railroad and the shipper. If the defendants' contention were law, one to whom extraordinary powers have been granted might avoid all liability for the negligent exercise of the same by contracting for their exercise by some irresponsible person. Nelson v. Railroad, 26 Vt. 717, 721. The rule is the same for this corporation that it would be for an individual. It is not because it is a corporation, but because it exercises powers not given to men in general, that liability attaches. The state has granted it the franchise to operate a railroad. With this right went the duty to so carry on the business that third persons should not be negligently injured thereby. The railroad could not delegate its whole franchise to Sargent. Pierce v. Emery, 32 N.H. 484, 504, 508; State v. Hayes, 61 N.H. 264, 324. If it could not delegate the whole, it could not any part of it. Heating this car was a part of the operation of the road, — a part of the exercise of the franchise granted by the legislature. By whoever done, it was, as to third parties, the act of the railroad, for which it is responsible.

Sargent authorized Griffin to hire a stove and use it in the car. While so using it, he stated to the owner that it had been broken. "Such an admission results fairly from the exigencies of the business the agent is employed to transact, and is clearly a part of it, and, to every intent, the act of the principal himself." Batchelder v. Emery, 20 N.H. 165, 166; Lyman v. Railroad, 58 N.H. 384, 385.

The request to instruct the jury that the damages to be recovered were to be reduced by deducting from the whole loss the amount of insurance received by the plaintiffs was properly denied. "His equitable claim to a reduction of damages, if he could have any, would spring from the fact that the plaintiff recovers pay for his property twice; but the answer to this is that he recovers but once for the wrong done him, and he receives the insurance money upon a contract to which the defendant is in no way privy, and in respect to which his own wrongful act can give him no equities." Perrott v. Shearer, 17 Mich. 48, 56; 1 Sedg. Dam., s. 67.

Exceptions overruled.

PARSONS, J., did not sit: the others concurred.