The opinion of the court was delivered by
Veazey, J.
The Montpelier & Wells River Railroad being in the possession and management of receivers appointed in a suit pending in the Court of Chancery, these petitions were brought in that cause ; and the subject-matter of them became proper subjects of adjudication in that court and cause. Answers were filed, and that court referred both petitions to the same master, and the hearing was had on both petitions at the same time. The order of reference in the Merrill petition directed the special master “ to find and report to this court in accordance with the prayer of said petition.” The order in the Central Vermont petition was to the same effect, and also to return all the testimony to the court. One report was filed in both causes, also exceptions thereto by the receivers ; and upon hearing by the chancellor the exceptions were overruled, and the receivers ordered to pay the petitioners respectively the amount reported, from which decrees an appeal was taken to this court.
It is first claimed in behalf of the receivers that the special master’s report of the facts is not conclusive thereof; that notwithstanding the report, the testimony taken before him must also be reported, and the whole of it is subject to revision by the Court of Chancery, and by this court on the appeal.
It is further claimed that as the subject-matter of reference involved an assessment of damages, it could only be tried by jury or by the court; that only matter of accounting could properly be sent to a master. The case was referred before the law of 1878, providing for trial of facts by special masters in any case in chancery ; and we understand it was a voluntary reference, and that no appeal has ever been taken to the order of reference or objection made to it. It is too late now to raise any question upon this order, or in respect to the method of trial adopted.
But the first point is the one now mainly pressed. If the proposition here insisted upon is correct as a general proposition appli[207]*207cable to all cases of reference, it is plain that nothing would ordinarily be gained by a reference. Mott v. Harrington, 15 Vt. 197. The reference in this case being regular, the rule as to the effect of the report is the same as it would be in a reference for taking an account. The general rule is that the master’s finding of the facts is conclusive. It was so stated in Merriam v. Barton, 14 Vt. 501, unless the report for good cause be set aside ; without stating what would be good cause. The same was held in McDaniels v. Harbour, 43 Vt. 460, unless for evident mistake on the part of the master, or evident corruption. And in Vt. & Can. R. R. Co. v. Vt. Cen. R. R. Co., 34 Vt. 65, unless the result is clearly shown to be wrong. And in Rowan v. State Bank, 45 Vt. 160, unless it appears affirmatively that the master found facts without evidence, or against evidence. In Howard v. Scott, 50 Vt. 48, Ross, J., speaking for the court, stated the rule as follows : “ The finding of a master in matters referred to him in regard to the facts established by the testimony, is as conclusive upon the parties as the verdict of a jur-y in a civil cause, and will be reviewed or set aside only for the same reasons that a verdict would be. Where there is evidence tending to establish the facts found, neither the Court of Chancery, nor the Supreme Court on appeal, will review the findings in regard to the weight to be given to the testimony. The party attacking the master’s report in this particular must satisfy the court that the master has acted corruptly or has been led astray by having entertained a mistaken view of the law applicable to the testimony.” To the same effect see Daniell’s Ch. vol. 2, p. 1300, n. 1, and cases there cited. (3d Am. ed.) There are many things that affect the weight and credibility of a witness’s testimony, besides his words as they appear on paper.
Under the well-established practice here and elsewhere, this report is conclusive as to the facts in this case. ■ There is no charge of corruption. A careful reading of the testimony shows no fact was found without evidence or against evidence. Under the general rule, the weight of the evidence was for the master to determine. There is nothing about this case to make it especially exceptional. The report covers the ground of the defendants’ re[208]*208quests and the motion to recommit, so far as was material and necessary in order for the defendants to have the full benefit of the law applicable to the case. We think there was no error in the decretal order overruling the exceptions and objections to the report; and that in its facts the case mast stand upon the report.
It is further claimed that upon the report the petitioners are not entitled to recover. By contract between the Central Vermont R. R. Co. and the Montpelier & Wells River R. R. Co. the former acquired the right to use two miles of the track of the latter for the running of its trains, paying therefor a stipulated price. The switch which guided the Central Vermont trains on to this track was to be under the control of the Montpelier & Wells River Company, and to be operated by the switchman of that company. This constituted the entire arrangement, so far as expressed between the parties. An out going Montpelier & Wells River train from Montpelier was due to pass the point of this switch a few minutes before an incoming Central Vermont train was due at that point. As the latter train approached this point, the switch-man informed the conductor that the outgoing train had passed. This was a mistake, and the consequence was a collision in which the petitioner Merrill, the engineer of the Central Vermont train, was injured and the train wrecked. The master finds that the acci_ dent and injury was due solely to the negligence of the defend, ants; and that said engineer and all his train men were without fault, but were in the exercise of due care and prudence.
The defendants insist that as the contract is silent as to who should take the risk in case of accident or be responsible for the negligence of the switchman, the petitioners can stand on no con tract obligation. And they insist further that none of the duties expressly created or imposed by their charter or the general laws of the State were violated, therefore the petitioners were not injured by the non-observance of any duty imposed by law. The precise question here raised having been considered and decided in this State adversely to the defendants’ claim in the case of Sawyer v. R. & B. R. R. Co., 27 Vt. 370, there is no occasion for re-examination of the subject unless that case is to be over, ruled; and the defendant’s argument in substance is that that case [209]*209was decided wrong and should be overruled. The defendants do not deny the general proposition that the railroad company is responsible to a party for the breach of a public duty causing him special damage; and a privity of contract between him and the company is not necessary to entitle him to an action for the injury. Pierce on Railroads, page 274, after stating this proposition, says: “Its obligation to keep its railroad in a safe and proper condition for use is imposed not only for the benefit of its servants and passengers, but as a public duty independent of contract, and co-extensive with the lawful use of the road.
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The opinion of the court was delivered by
Veazey, J.
The Montpelier & Wells River Railroad being in the possession and management of receivers appointed in a suit pending in the Court of Chancery, these petitions were brought in that cause ; and the subject-matter of them became proper subjects of adjudication in that court and cause. Answers were filed, and that court referred both petitions to the same master, and the hearing was had on both petitions at the same time. The order of reference in the Merrill petition directed the special master “ to find and report to this court in accordance with the prayer of said petition.” The order in the Central Vermont petition was to the same effect, and also to return all the testimony to the court. One report was filed in both causes, also exceptions thereto by the receivers ; and upon hearing by the chancellor the exceptions were overruled, and the receivers ordered to pay the petitioners respectively the amount reported, from which decrees an appeal was taken to this court.
It is first claimed in behalf of the receivers that the special master’s report of the facts is not conclusive thereof; that notwithstanding the report, the testimony taken before him must also be reported, and the whole of it is subject to revision by the Court of Chancery, and by this court on the appeal.
It is further claimed that as the subject-matter of reference involved an assessment of damages, it could only be tried by jury or by the court; that only matter of accounting could properly be sent to a master. The case was referred before the law of 1878, providing for trial of facts by special masters in any case in chancery ; and we understand it was a voluntary reference, and that no appeal has ever been taken to the order of reference or objection made to it. It is too late now to raise any question upon this order, or in respect to the method of trial adopted.
But the first point is the one now mainly pressed. If the proposition here insisted upon is correct as a general proposition appli[207]*207cable to all cases of reference, it is plain that nothing would ordinarily be gained by a reference. Mott v. Harrington, 15 Vt. 197. The reference in this case being regular, the rule as to the effect of the report is the same as it would be in a reference for taking an account. The general rule is that the master’s finding of the facts is conclusive. It was so stated in Merriam v. Barton, 14 Vt. 501, unless the report for good cause be set aside ; without stating what would be good cause. The same was held in McDaniels v. Harbour, 43 Vt. 460, unless for evident mistake on the part of the master, or evident corruption. And in Vt. & Can. R. R. Co. v. Vt. Cen. R. R. Co., 34 Vt. 65, unless the result is clearly shown to be wrong. And in Rowan v. State Bank, 45 Vt. 160, unless it appears affirmatively that the master found facts without evidence, or against evidence. In Howard v. Scott, 50 Vt. 48, Ross, J., speaking for the court, stated the rule as follows : “ The finding of a master in matters referred to him in regard to the facts established by the testimony, is as conclusive upon the parties as the verdict of a jur-y in a civil cause, and will be reviewed or set aside only for the same reasons that a verdict would be. Where there is evidence tending to establish the facts found, neither the Court of Chancery, nor the Supreme Court on appeal, will review the findings in regard to the weight to be given to the testimony. The party attacking the master’s report in this particular must satisfy the court that the master has acted corruptly or has been led astray by having entertained a mistaken view of the law applicable to the testimony.” To the same effect see Daniell’s Ch. vol. 2, p. 1300, n. 1, and cases there cited. (3d Am. ed.) There are many things that affect the weight and credibility of a witness’s testimony, besides his words as they appear on paper.
Under the well-established practice here and elsewhere, this report is conclusive as to the facts in this case. ■ There is no charge of corruption. A careful reading of the testimony shows no fact was found without evidence or against evidence. Under the general rule, the weight of the evidence was for the master to determine. There is nothing about this case to make it especially exceptional. The report covers the ground of the defendants’ re[208]*208quests and the motion to recommit, so far as was material and necessary in order for the defendants to have the full benefit of the law applicable to the case. We think there was no error in the decretal order overruling the exceptions and objections to the report; and that in its facts the case mast stand upon the report.
It is further claimed that upon the report the petitioners are not entitled to recover. By contract between the Central Vermont R. R. Co. and the Montpelier & Wells River R. R. Co. the former acquired the right to use two miles of the track of the latter for the running of its trains, paying therefor a stipulated price. The switch which guided the Central Vermont trains on to this track was to be under the control of the Montpelier & Wells River Company, and to be operated by the switchman of that company. This constituted the entire arrangement, so far as expressed between the parties. An out going Montpelier & Wells River train from Montpelier was due to pass the point of this switch a few minutes before an incoming Central Vermont train was due at that point. As the latter train approached this point, the switch-man informed the conductor that the outgoing train had passed. This was a mistake, and the consequence was a collision in which the petitioner Merrill, the engineer of the Central Vermont train, was injured and the train wrecked. The master finds that the acci_ dent and injury was due solely to the negligence of the defend, ants; and that said engineer and all his train men were without fault, but were in the exercise of due care and prudence.
The defendants insist that as the contract is silent as to who should take the risk in case of accident or be responsible for the negligence of the switchman, the petitioners can stand on no con tract obligation. And they insist further that none of the duties expressly created or imposed by their charter or the general laws of the State were violated, therefore the petitioners were not injured by the non-observance of any duty imposed by law. The precise question here raised having been considered and decided in this State adversely to the defendants’ claim in the case of Sawyer v. R. & B. R. R. Co., 27 Vt. 370, there is no occasion for re-examination of the subject unless that case is to be over, ruled; and the defendant’s argument in substance is that that case [209]*209was decided wrong and should be overruled. The defendants do not deny the general proposition that the railroad company is responsible to a party for the breach of a public duty causing him special damage; and a privity of contract between him and the company is not necessary to entitle him to an action for the injury. Pierce on Railroads, page 274, after stating this proposition, says: “Its obligation to keep its railroad in a safe and proper condition for use is imposed not only for the benefit of its servants and passengers, but as a public duty independent of contract, and co-extensive with the lawful use of the road. Thus, where one company by agreement or otherwise has a right to run its trains over the road of another company, the servants of the former company may maintain an action against the company owning the road for an injury occasioned by the improper and negligent management of the switch, which it was the duty of the latter company to keep in the proper place,” and he cites Sawyer v. Rut. & B. R. R. Co. and other cases. This language covers the precise question in this case. Another authority, not cited by Pierce, is the case of Smith v. The N. Y. & H. R. Co., 19 N. Y. 127, a case identical in facts, in substance, and where the Court of Appeals adopted the same rule and arrived ,at the same conclusion as was adopted in Sawyer v. R. & B. R. R. Co. It would seem that the Vermont case, though previous to the New York case, was not brought to the attention of the New York court, as it is not cited in that case. It is probable, therefore, that these two courts arrived at the same result independently of each other. Two opinions were delivered in the New York case, one by Grover, J., and one by Selden, J., both to the same effect. In that case one point was made which is not urged here ; that the case came within the rule that a servant cannot recover for an injury caused by the negligence of a fellow servant employed by the same master in the same general business. The answer made to that by both judges was that the injured person and switchman were not employed by the same master. Upon the point here pressed, the court held that the rule adopted in Thomas v. Winchester, 2 Seld. 397, applied. There it was held that a dealer in drugs, vending poison labeled as harmless medicine, was liable [210]*210to a party who purchased from the innocent vendee, for an injury occasioned by its use. The principle was that a party is liable for all the injuries sustained by any one without fault, which were the probable consequences of his negligence, when such negligence was imminently dangerous to life. The court in the New York case said: “ Such liability tends to promote caution in these transactions of such vast importance to the public. A contrary rule will induce carelessness and negligence. Langmaid v. Holliday, 6 L. & E. 562. We see no occasion to disapprove of the application which the New York and Vermont courts thus early made of the principle of law above stated, and feel no hesitation in making the same application in this case. • Indeed, to deny it, would be to overrule a well-considered case of our own court, which has stood for more than twenty-five years, not since directly questioned anywhere so far as shown, but sustained by high authority, and which seems to have been approved by the best elementary writers. We think this is a case apt for the application of the rule stare decisis.
The defendant’s counsel have discussed the question of interest, but the petitioners make no claim for interest prior to the decree of the chancellor.
The decree of the Court of Chancery is affirmed, and the cause remanded.