Holmes, J.
If this were an action to recover for personal injuries, brought by a passenger who had paid his fare, it would make no difference in the defendant’s liability whether the injuries were caused by the negligence of those who were, in a strict sense, the defendant’s servants, or by that of a third person who managed the road over which the defendant had undertaken to carry the plaintiff. McElroy v. Nashua & Lowell Railroad, 4 Cush. 400. Eaton v. Boston & Lowell Railroad, 11 Allen, 500. White v. Fitchbury Railroad, 136 Mass. 321, 325. Railroad Co. v. Barron, 5 Wall. 90, 104. And the case would not be altered by the fact that the person in charge was the Commonwealth. Peters v. Rylands, 20 Penn. St. 497.
There are weighty decisions, also, to the effect that in such an action the defendant is liable, not only for negligence at the time of the accident, but for any defect in its appliances which might have been discovered at the time when they were made, although the defendant did not make them and the defect could not have been discovered afterwards. Hegeman v. Western Railroad, 13 N. Y. 9. Pendleton v. Kinsley, 3 Cliff. 416, 421. Philadelphia & Reading Railroad v. Anderson, 94 Penn. St. 351, 359. Francis v. Cockrell, L. R. 5 Q. B. 184, 501. Grote v. Chester Holyhead Railway, 2 Exch. 251, 255. Compare Ingalls v. Bills, 9 Met. 1, 11. See Pennsylvania Co. v. Roy, 102 U. S. 451; Hutchinson on Carriers, §§ 509-512. And see Grand Rapids & Indiana Railroad v. Huntley, 38 Mich. 537, 546, 547, citing Richardson v. Great Eastern Railway, 1 C. P. D. 342. Compare Wright v. Midland Railway, L. R. 8 Ex. 137.
In some of the cases it is intimated that the negligence of the third person is imputed to the carrier. White v. Fitchburg Railroad, 136 Mass. 321. Peters v. Rylands, 20 Penn. St. 497. Pennsylvania Co. v. Roy, 102 U. S. 451. Wabash, St. Louis, & Pacific Railway v. Peyton, 106 Ill. 534, 540. And in some instances, at least, the declaration has alleged negligence on the part of the defendant only. See Great Western Railway v. Blake, 7 H. & N. 987; Buxton v. North Eastern Railway, L. R. 3 Q. B. 549; Thomas v. Rhymney Railway, L. R. 5 Q. B. 226, and L. R. 6 Q. B. 266; Peters v. Rylands, 20 Penn. St. 497; Hegeman v. Western Railroad, 13 N. Y. 9. In an early case it was said, “ Everything is a negligence in a carrier or hoyman [482]*482that the law does not excuse.” Dale v. Hall, 1 Wilson, 281, 282. On the other hand, the extreme liability imposed by the foregoing decisions very frequently has been referred to the carrier’s implied contract, or to what the passenger reasonably may understand that the carrier assumed. Thomas v. Rhymney Railway, L. R. 5 Q. B. 226. Francis v. Cockrell, L. R. 5 Q. B. 184. Peters v. Rylands, 20 Penn. St. 497. Eaton v. Boston & Lowell Railroad, 11 Allen, 500. Nolton v. Western Railroad, 15 N. Y. 444, 447. Compare Buxton v. North Eastern Railway, L. R. 3 Q. B. 549; Austin v. Great Western Railway, L. R. 2 Q. B. 442, 446. And some judges have pointed out that the liability could not stand on the carrier’s negligence, and have suggested that the declaration ought to be varied accordingly. Thomas v. Rhymney Railway, L. R. 6 Q. B. 266, 275, S. C. 40 L. J. Q. B. 89, 95.
These distinctions are not of much importance in actions at common law brought by the passenger himself. But the present action is statutory and penal in its character. The statute does not extend the liability for personal injuries to those injuries which cause death, as in Little v. Dusenberry, 17 Vroom, 614 (where also, so far as appears, the defendant may have been negligent). It creates a liability of a different nature. The action which it gives to the administrator is merely a substitute for the indictment also provided for, and it is expressly enacted that the damages shall be “assessed with reference to the degree of culpability of the corporation, or of its servants or agents.” Pub. Sts. c. 112, § 212. See Carey v. Berkshire Railroad, 1 Cush. 475, 480; Commonwealth v. Vermont & Massachusetts Railroad, 108 Mass. 7, 12.
This language imports that there must be some degree of culpability on the part of the corporation or of its servants, and is not satisfied by showing that the corporation assumed a contractual or quasi contractual responsibility for third persons who were not its servants. Suppose, for instance, that the defect in the construction of the road was unknown both to the defendant and to the Commonwealth, and could not have been discovered by either through the use of any degree of care, the fact that it was known to the private corporation that originally built the road could not be said to show culpability on the part of the defendant, except by a wilful misapplication of words.
[483]*483We go one step further. Supposing that the defect was known to the Commonwealth, and was not known and could not have been known to the defendant, the defendant was not negligent, whatever might have been its liability at common law in this case or the last. We do not mean to intimate that the facts show any ground for this last supposition. The defendant was bound to know the visible facts concerning the track over which it carried its passengers. So far as appears, therefore, it must be taken to have known the facts which with our present knowledge we see pointed out the cause, or a part of the causes, of the disaster. But it was entitled to go to the jury on the question whether those facts before the accident would have indicated to a competent person, considering them with the care which is necessary where human life is involved, that the road was unsafe. And under this statute it was entitled to the second ruling asked.
The plaintiff does not contest the correctness of the ruling asked, but suggests that it was unnecessary, because it was asked only as one ground for taking the case from the jury, and because it was undisputed that the improper condition of the road was visible. The two reasons offered are inconsistent with each other. We do not find any warrant for the first in the bill of exceptions, and with more hesitation we construe the exceptions to mean only that the filling of the ditch and the escape of water by working under the track were visible, and not that it was also manifest that they constituted a danger.
The defendant now contends, that not only was it entitled to the second ruling asked, but the evidence disclosed no indications of danger, and that the case should have been taken from the jury on that ground. We cannot go so far as to decide what inferences the defendant ought to have drawn from the visible condition of the road, or the situation where the accident happened.
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Holmes, J.
If this were an action to recover for personal injuries, brought by a passenger who had paid his fare, it would make no difference in the defendant’s liability whether the injuries were caused by the negligence of those who were, in a strict sense, the defendant’s servants, or by that of a third person who managed the road over which the defendant had undertaken to carry the plaintiff. McElroy v. Nashua & Lowell Railroad, 4 Cush. 400. Eaton v. Boston & Lowell Railroad, 11 Allen, 500. White v. Fitchbury Railroad, 136 Mass. 321, 325. Railroad Co. v. Barron, 5 Wall. 90, 104. And the case would not be altered by the fact that the person in charge was the Commonwealth. Peters v. Rylands, 20 Penn. St. 497.
There are weighty decisions, also, to the effect that in such an action the defendant is liable, not only for negligence at the time of the accident, but for any defect in its appliances which might have been discovered at the time when they were made, although the defendant did not make them and the defect could not have been discovered afterwards. Hegeman v. Western Railroad, 13 N. Y. 9. Pendleton v. Kinsley, 3 Cliff. 416, 421. Philadelphia & Reading Railroad v. Anderson, 94 Penn. St. 351, 359. Francis v. Cockrell, L. R. 5 Q. B. 184, 501. Grote v. Chester Holyhead Railway, 2 Exch. 251, 255. Compare Ingalls v. Bills, 9 Met. 1, 11. See Pennsylvania Co. v. Roy, 102 U. S. 451; Hutchinson on Carriers, §§ 509-512. And see Grand Rapids & Indiana Railroad v. Huntley, 38 Mich. 537, 546, 547, citing Richardson v. Great Eastern Railway, 1 C. P. D. 342. Compare Wright v. Midland Railway, L. R. 8 Ex. 137.
In some of the cases it is intimated that the negligence of the third person is imputed to the carrier. White v. Fitchburg Railroad, 136 Mass. 321. Peters v. Rylands, 20 Penn. St. 497. Pennsylvania Co. v. Roy, 102 U. S. 451. Wabash, St. Louis, & Pacific Railway v. Peyton, 106 Ill. 534, 540. And in some instances, at least, the declaration has alleged negligence on the part of the defendant only. See Great Western Railway v. Blake, 7 H. & N. 987; Buxton v. North Eastern Railway, L. R. 3 Q. B. 549; Thomas v. Rhymney Railway, L. R. 5 Q. B. 226, and L. R. 6 Q. B. 266; Peters v. Rylands, 20 Penn. St. 497; Hegeman v. Western Railroad, 13 N. Y. 9. In an early case it was said, “ Everything is a negligence in a carrier or hoyman [482]*482that the law does not excuse.” Dale v. Hall, 1 Wilson, 281, 282. On the other hand, the extreme liability imposed by the foregoing decisions very frequently has been referred to the carrier’s implied contract, or to what the passenger reasonably may understand that the carrier assumed. Thomas v. Rhymney Railway, L. R. 5 Q. B. 226. Francis v. Cockrell, L. R. 5 Q. B. 184. Peters v. Rylands, 20 Penn. St. 497. Eaton v. Boston & Lowell Railroad, 11 Allen, 500. Nolton v. Western Railroad, 15 N. Y. 444, 447. Compare Buxton v. North Eastern Railway, L. R. 3 Q. B. 549; Austin v. Great Western Railway, L. R. 2 Q. B. 442, 446. And some judges have pointed out that the liability could not stand on the carrier’s negligence, and have suggested that the declaration ought to be varied accordingly. Thomas v. Rhymney Railway, L. R. 6 Q. B. 266, 275, S. C. 40 L. J. Q. B. 89, 95.
These distinctions are not of much importance in actions at common law brought by the passenger himself. But the present action is statutory and penal in its character. The statute does not extend the liability for personal injuries to those injuries which cause death, as in Little v. Dusenberry, 17 Vroom, 614 (where also, so far as appears, the defendant may have been negligent). It creates a liability of a different nature. The action which it gives to the administrator is merely a substitute for the indictment also provided for, and it is expressly enacted that the damages shall be “assessed with reference to the degree of culpability of the corporation, or of its servants or agents.” Pub. Sts. c. 112, § 212. See Carey v. Berkshire Railroad, 1 Cush. 475, 480; Commonwealth v. Vermont & Massachusetts Railroad, 108 Mass. 7, 12.
This language imports that there must be some degree of culpability on the part of the corporation or of its servants, and is not satisfied by showing that the corporation assumed a contractual or quasi contractual responsibility for third persons who were not its servants. Suppose, for instance, that the defect in the construction of the road was unknown both to the defendant and to the Commonwealth, and could not have been discovered by either through the use of any degree of care, the fact that it was known to the private corporation that originally built the road could not be said to show culpability on the part of the defendant, except by a wilful misapplication of words.
[483]*483We go one step further. Supposing that the defect was known to the Commonwealth, and was not known and could not have been known to the defendant, the defendant was not negligent, whatever might have been its liability at common law in this case or the last. We do not mean to intimate that the facts show any ground for this last supposition. The defendant was bound to know the visible facts concerning the track over which it carried its passengers. So far as appears, therefore, it must be taken to have known the facts which with our present knowledge we see pointed out the cause, or a part of the causes, of the disaster. But it was entitled to go to the jury on the question whether those facts before the accident would have indicated to a competent person, considering them with the care which is necessary where human life is involved, that the road was unsafe. And under this statute it was entitled to the second ruling asked.
The plaintiff does not contest the correctness of the ruling asked, but suggests that it was unnecessary, because it was asked only as one ground for taking the case from the jury, and because it was undisputed that the improper condition of the road was visible. The two reasons offered are inconsistent with each other. We do not find any warrant for the first in the bill of exceptions, and with more hesitation we construe the exceptions to mean only that the filling of the ditch and the escape of water by working under the track were visible, and not that it was also manifest that they constituted a danger.
The defendant now contends, that not only was it entitled to the second ruling asked, but the evidence disclosed no indications of danger, and that the case should have been taken from the jury on that ground. We cannot go so far as to decide what inferences the defendant ought to have drawn from the visible condition of the road, or the situation where the accident happened.
If the danger might have been discovered by the exercise of due care, the defendant will be liable, whether the defect was in the original construction of the road, or was due to a failure on the part of the Commonwealth to make necessary repairs, or however otherwise it may have been caused. If the defendant carried its passengers into a place which it knew or ought to [484]*484have known was dangerous, it was negligent, although it did not create, and had no right to remove, the danger.
Whether or not there would be any difference between the defendant’s common law liability for the negligence of third persons not its servants in the construction or maintenance of the road to passengers who had paid fares, and its liability to those who were being carried lawfully but without consideration, may depend upon the true ground of liability, so far as it exists, when the defendant is itself free from blame, and perhaps is still open to argument. Todd v. Old Colony & Fall River Railroad, 3 Allen, 18, 20. Flint & Pere Marquette Railway v. Weir, 37 Mich. 111, 114, 115. Hutchinson on Carriers, § 567, note. But the defendant would be liable at common law for injuries caused by its own negligence to passengers carried gratuitously, and the statute makes no distinction between gratuitous and paying passengers, if the person killed is a passenger. There is no doubt that the plaintiff’s children were passengers. See Todd v. Old Colony & Fall River Railroad, 3 Allen, 18; Wilton v. Middlesex Railroad, 107 Mass. 108; Wilton v. Middlesex Railroad, 125 Mass. 130; Commonwealth v. Vermont & Massachusetts Railroad, 108 Mass. 7; Austin v. Great Western Railway, L. R. 2 Q. B. 442. Exceptions sustained.