Page:Federal Reporter, 1st Series, Volume 10.djvu/470

468 PEDEBAL BEPORIEE. �engine attached. The passengers were still in the cars. The transit company's engine, in attempting to attach to the train, did so wilh such negligence as to cause the injury complaiued of. The train itself should have advanced to or nearer the Eelay depot before the locomotive was detached ; and, on the other hand, the transit engine, in Connecting, should have done so without thrusting the train across the track of auother moving train, Hence, as stated in the charge of the court, the railroad company was bound to deliver the plaintiff safely, under the obligations of a common carrier, in St. Louis, and was responsible for whatever injuries were caused by the negligence of its agents. As to the transit company, though under its contracts with the defendant it was its agent, yet if in the course of its employment it injured, through its direct negligence, a third party, with whom it had no privity of contract, still it was answera- ble to him for the wrong so done. Questions as to the pleadings are raised, drawing formai distinctions between contracts ex contractu and ex delicto, which are irrespective of the merits of the case, and which, if well taken, would have resulted at the trial in formai amendments, if required. �The question involved may be of large significance. The many railroad trains arriving at and departing from the St. Louis depot use, under contract with the transit company, the motive power of the latter. To whom is the passenger to be remitted for injury suf- fered? He departs and arrives by his contract, not at East St. Louis, but at St. Louis, on the west side of the river. The intermediate agency by which he is transferred to and from the St. Louis depot, so far as his contract is concerned, is not a separate contract, remitting him for redress when an injury bas been sustained solely to such intermediate agency; but, as in these cases, he may, under acts of negligence, have his remedy against either or both. �The questions, sharply defined, are whether the obligations of the Indianapolis & St. Louis Eailroad eeased, under the circumstances fitated, when its locomotive was detached from its train at East St. Louis; and, on the other hand, whether what occurred subsequently involved a liability solely against the transit company. �As has been stated, a mixed question of fact might have been pre- sented if the duties of the Indianapolis & St. Louis Eailroad had ter- minated when it left its cars on the track in East St. Louis, short of the Eelay depot, and if its obligations eeased only when the cars reached the Eelay depot, and if in that intermediate stage of transfer the transit company undertook to haul the train, not to the Eelay depot ��� �