Bell, J.
It is never necessary to state the general law of the land in any pleading. The courts are bound to apply the law, as they know it tó be, to the facts stated in the pleadings, without regard to any erroneous statement of the law made in those pleadings. Incorrect statement of -the law may be cause of demurrer, but if no demurrer is interposed, the party is in no way bound by that statement, which will be merely disregarded.
Upon a careful consideration of the statement of the legal obligations of the defendants in this case, made by the plaintiff, in his declaration, we n.re unable to assent to his idea of the law in two particulars. If we are right in our impressions as to these, the plaintiff’s claim will be left without any legal foundation, whatever opinions the court may entertain as to the other points raised in the very ingenious argu[33] ment for the plaintiff. As to those points, for this reason, we have not felt it necessary to inquire.
The particulars referred to are these ;■ first, that upon the facts alleged, the defendants owed a duty to the plaintiff; and second, that they were bound to furnish a safe place for passengers to get into the cars, at every place where they, or other corporations using their road, receive and take in passengers.
The relation of the Northern Railroad, who had agreed to take the plaintiff as a passenger in their cars, to the Concord Railroad, the defendants,is thus alleged: “ At the time of committing the grievances hereinafter mentioned, and before and since, a certain other railroad corporation, called the Northern Railroad, were in the rightful use of said Concord Railroad, by permission of said Concord Railroad Corporation, for the carriage and conveyance of passengers in the cars of said Northern Railroad.
The evidence in the case was in substantial agreement with these allegations.
The effect of these relations upon the rights of the railroads may be first looked at. And we think it clear that, if the Northern Railroad ask and obtain the permission of the Concord Railroad to use their road, that permission, given without any further actual contract, draws after it no obligation to put the road in repair, or to provide new or different landings or starting places, or, indeed, to make any change in the arrangements of the road whatever, or alterations in the road itself. These railroads stand in the same relation to each other as two individuals, one of whom has a path through his own land, or a privilege for himself and such as may obtain his permission to use it, of a way through another man’s land, and the other has obtained permission to use such path or way for his own business. There surely could not be any pretence that the owner of the land or way, in such case, was bound, in consequence of such permission, to make such way safe, any more than [34] the owner of a wood lot, who had given a neighbor leave to haul his wood across the lot, would therefore be bound to make him a good and safe way.
If, then, such permission implies no duty to the Northern Railroad to make or alter their landings, it is difficult to see on what principle they can be held to have assumed any duty of that kind to the passengers in their cars. Any third person who enters upon the railroad, of which the defendants are alleged to be “ the owners and proprietors, at any other place than those provided for entering upon their cars, or for any other purpose than to take his place ás a passenger in those cars, is prima facie a trespasserand if his purpose is to enter the cars of the Northern Railroad, as a passenger, his only claim of a right to do so is under the reasonable construction of the permission granted to that corporation to use the Concord Railroad, for the convenience of themselves and such passengers as they might desire to convey in their cars. That permission could not, of course, extend further in the case-of such passengers than in the case of the railroad itself, — a permission to use the railroad as it is.
If the use of the road was granted to the Northern Railroad upon a contract, by which the Concord Railroad bound themselves to make their road such that passengers may safely go to and get into the cars, at all such places as either of those railroads received passengers, it is not perceived how such a contract could give to any passenger, who might suffer damage from their neglect to perform their contract, any right of action resting on such contract. Parties who contract are answerable to each other for the breach of their stipulations, but not to third persons. It has never been supposed that a passenger in a stage coach, who had been injured by an accident resulting from defects of the materials or unfaithfulness of the construction of it, could maintain an action against the coachmaker, who had warranted its quality to the carrier. His remedy is against the carrier, [35] and the maker is liable to the carrier alone. Winterbottom, v. Wright, 10 M. & W. 109, and see Thomas v. Winchester, 2 Seld. 397. In the present case, supposing a contract between the two railroads, it seems quite as clear that the remedy of the sufferer is against the company with whom he has contracted. By using .the railroad of another corporation as a part of their track, whether by contract or mere permission, they would ordinarily, for many purposes, make it their own, and would assume towards those whom they had agreed to receive as passengers, all the duties resulting from that relation as to the road ; and if accident resulted to such passengers from any failure of duty of the owners of the road, for which they would be responsible if the road was their own, their remedy over would be against the owners. No privity whatever would exist between the passengers of the Northern Railroad and the Concord Railroad, in consequence of any contract between the two railroads.
It has been said, in the argument, that every ferryman is bound to have safe and secure landings, and we think the principle is clear to a certain extent. But the analogy between the case of the ferry and the railroad does not support the argument founded upon it. The railroad companies support two characters; they are like canal companies, the owners of artificial ways, which, as such owners, they are bound to keep in suitable repair, for the accommodation of those who have by law the right to use them. They are also common carriers, transporting passengers over their own roads, and occasionally over roads owned by others. As common carriers they are, like ferrymen, bound to transport their passengers safely, and bound to provide suitable access to their ferries or ways. If they are, at the same time, carriers and owners of the road or ferry, they are, of course, bound to keep them in good repair, but they owe this duty to those whom they contract or undertake to transport, as part of their agreement to carry safely. If a ferry[36] man, for his own convenience, obtains permission of the owner of a private landing to land his passengers there, rather than at his own landing, the owner of such private landing does not, by his mere permission to land there, engage that the landing is either suitable or safe; he does not bind himself to alter or repair it, and he is not responsible for any injuries-that may result either from original defects or neglect to repair. The permission allows its use in its present state, but it imposes upon the owner no duty either to the ferryman or his passengers. The railroad company who obtain consent of another road to use their track, like the ferryman who gets leave to use another landing, owe a duty to their passengers, that they shall be carried safely, so far, as it is sometimes loosely said, as human caution and foresight can accomplish that object; but they have no claim upon those who give such permission, to insist that the landing or track shall be safe, neither have their passengers any such claim.
If the owner of the landing or track, for a proper consideration, lease the landing or track, there might, under some circumstances, be an implied contract that the property was suitable for the use for which it was hired. And in such case, and in the case of an express contract to make them suitable, the letter would be responsible to the hirer, for any damages that might result from its insufficiency or want of repair. But the individual who sustained damage from these causes would have no remedy against the letter, because there is no contract or duty existing between them. His remedy would be against the party with whom he contracted.
In the views thus presented, we have considered the question upon the facts alleged in the declaration, which states that the defendants are owners and proprietors of a railroad, and contains nothing from which it can be inferred that their rights or their duties are in any respect different from those of the ownérs of any private property, unless it should [37] be thought that the idea of a public way, and of the duties of those who are bound to maintain public ways, is comprised or implied under the word “ railroad.” A highway, ex vi termini, is a public way, as to which certain duties are impliedly imposed by law upon those who are charged with its support and repair. But it seems to us yet to be settled that the mere term railroad or railway has such signification. Railroads, over which all have equal rights to travel and to run their engines and trains, are, of course, public ways; and railroads, over which all who come have a right to be transported, as all have a right to be ferried across a river, will, perhaps, fall within the same class; but it is understood that there are many railroads abroad which are constructed and used exclusively for the private purposes of the companies who own them, as for transporting coal from the mines to places of shipment, ore to the furnaces, and the like ; and probably they are to be found in our country constructed and used exclusively for private purposes like these. In many of our cities and manufacturing places, it is supposed there are many miles of railroads, built and used only for the accommodation of the business of their owners. If our impressions in this respect are correct, no public duties result from the fact that a party is owner of a railroad. And if it could be even inferred from the nature of its chartered powers that the Concord railroad was a public way, as was held in Greeley v. Concord, Railroad, 3 Foster’s Rep. 237, or if the court were bound to take notice that any such corporation had become a public corporation, by adopting the act of 1844, (Comp. Stat. 340,) it would not follow that all their track is a public way, since it is supposed that many railroad companies, and fr6m the plan exhibited, this among others, have many private tracks, designed and used solely for the private business of the company.
If we were, however, to understand that the Concord Railroad Company is the proprietor of a public road, which [38] they were by law bound to make and keep in repair for the use of all who have occasion to travel and pass upon it, it •might be reasonably argued that their duties were closely allied to those of towns, who are bound to keep in repair the public highways within their limits, and to those of turnpike and bridge companies, who are bound to keep in repair their roads and bridges. And as to these, we are not aware that it hás been doubted that they are responsible to every person who sustains damage by reason of the defects of their road, whether he was passing on foot or riding in his own carriage, or that of any third person, in the due exercise of his right as a member of the community. But it is to he borne in mind that there is a well settled distinction beween highways of different classes, and that the liability of those whose duty it is to keep in repair public highways, is limited by the nature of those ways. Thus no responsibility attaches to the party bound to support a foot-way, that it is not suitable for horses or cattle, nor to the owner of a pack and prime way, for' persons on foot and on horses, that it is unsuitable for carriages; and upon the same principle the owners of a public railway are chargeable "with no fault, if it is not suitable for foot passengers, or for horses, cattle or carriages, nor even if it is so constructed as to be dangerous to be used for such purposes. As to their tracks, it is supposed their only obligation is to make and keep them suitable for the use of railroad carriages.
To render such tracks useful, either to the railroad companies or to the public, it is obviously necessary that they should be accessible for those who have occasion to use them, by proper connections with the public ways, and there necessarily results, as we apprehend, a duty upon the railroad companies to make suitable ways or places of access to their road, for persons who have occasion to get upon their cars, or to- put merchandize upon them to be carried. Originally the question how many such places of access to their tracks should be made and maintained, and where they [39] should be placed, was left by the Legislature to the self-interest of the companies. By the act of 1850, ch. 983, § 6, it is made their duty, under severe penalties, to establish reasonable and proper depots and stopping places for the public accommodation. This statutory declaration of the duty of railroad corporations, is in- exact conformity with the rule of the common law, regulating the duty of towns as to the manner of constructing highways, and, it seems to us, the rule of good sense and reason. They are to establish such depots and stopping places, — places where those who have occasion to use the road may have access to it, — at such places as are reasonable and proper for the public accommodation, and they are to be constructed and fitted as the public highways are, in such a manner as is reasonable and proper for the public convenience. If the amount of business to be done at a particular depot is large, or the number of persons to be accommodated is considerable, the arrapgements should be on a scale so extensive as to meet the wants of the community. If the number to be accommodated is small, the accommodations may be narrowed in proportion, without giving to any person any just ground of complaint. Where no persons could usually be expected to be taken on board the cars, it could not be either reasonable or proper that any preparations should be made. Nor would it alter the duty of a railroad corporation in this repect, if, as a matter of convenience to others, they should occasionally take up or set' down a passenger at a point where no preparation had been made for his accommodation. It would seem to us very clear that they cannot be held to make every part of their road suitable for landing or taking passengers, because they may at some time have occasion to take in or set down a passenger at any place.
There can, we think, be no doubt that it was the duty of the railroad corporation to have all their landings and places of receiving passengers so constructed, that persons going to and from the cars as pa'ssengers, may pass with safety. But [40] the- injury in this case arose not from the defective construction of any landing, at the points where passengers usually get in or out of the cars. It is not alleged in the declaration that the place where the accident occurred, or the place where the ears into which the plaintiff desired to get were standing, was a common landing, or a place where passengers usually enter or leave the cars. All that is said and all that appears by the case to. be proved is, that the cars were standing at a place where, by the permission of the defendants, the Northern Railroad took and received passengers to be conveyed in their cars. There is nothing which imports that it was a place where the companies usually or frequently took in passengers ; aad wé may just as reasonably suppose, that the qualifying words, to be understood before “ took in and received passengers," were “ once before," or the like, as “ often or commonly."
The question, then, does not relate to the usual landing places, but to the principle which governs the duties and obligations of railroad companies as to the safety of passengers, at those points where they, for the accommodation of a particular individual, may take him in as a passenger or permit him to leave the cars.
The rule of duty of towns is to keep their roads in such state of repair as may be necessary for the travel passing upon them.
A similar principle, it seems to us, must govern the case of railroads, as it regards the passage to and from the tracks. Where there is usually and habitually some passing, the access must be such as may safely accommodate the passengers who may be reasonably expected to frequent it. But it cannot be necessary to make such preparations and take such precautions as would be necessary at the great stations. And, on the other hand, at places which are in no sense passenger stations, where there is no reason to expect any body to pass, there is no necessity,, and, therefore, no duty to make any preparations or to adopt any precautions. [41] There is no obligation to do any thing, either for the convenience or safety of passengers, at points where none are expected to pass. The general duty alleged in the writ is not imposed by law, and the company were not bound to make access to their road safe at every point where they might in point of fact take in or set down a passenger.
The claim in this case, as stated in the writ, and as attempted to be proved upon the trial, rests upon the idea that there is no difference, in point of law, between the duties of the railroad company, at places where passengers may be occasionally received on board of freight trains, and those where they are usually received in the passenger trains. But this seems to us entirely unsound. We suppose it makes no difference that the Concord Railroad and the Northern Railroad are common carriers of passengers by their passenger trains, and of freight by their freight trains. The stage proprietor is a carrier of passengers by his coaches, but he does not thereby become a common carrier of passengers by his baggage wagons, if he carries on that business at the same time. Both the companies and the individuals, in these cases, are bound to their customers by the same duties relative to their freight trains and baggage wagons, and have the same rights as to the roads over which they travel, as if they had no connection with the business of common carriers of passengers.
As to common carriers of freight, it would be the duty of the railroad to furnish safe means of access from the public ways to their cars, for loading and unloading merchandize. The question here raised is, whether there is any duty upon them to furnish safe means of access for passengers upon those trains.
The first question which arises upon the point is, whether the railroad companies have made themselves common carriers of passengers by their freight trains, because it is not to be questioned that they owe a duty to provide access for those passengers in proportion to the occasion that calls for [42] it. It is very clear that a wagoner, who occasionally carries a passenger upon his wagons as a matter of special accommodation and agreement, does not thereby become a common.carrier of passengers. He only becomes such when the carrying of passengers becomes an habitual business. Upon the evidence stated in this case, that “ both roads had been in the habit of occasionally transporting some passengers upon the freight trains, when they were anxious to go,” we think we should not be justified in saying that they were common earners of passengers upon their freight trains. Elkins v. Boston and Maine Railroad, 3 Foster’s Rep. 275. And it seems to us clearly that, if they were not such common carriers, they were not chargeable for the want of accommodations such as would be otherwise justly required.
The party who makes an arrangement to be carried on a baggage wagon or a freight car, impliedly agrees to accept and be satisfied with such accommodations, as it regards carriages and seats and places of entering and leaving the carriages, as may be found in the usual course of the business. If the cars, at the time of his agreeing for his passage and taking his seat, are at a merchandize depot, he is to be satisfied with such means of entering the cars as are provided for rolling in the cask or box on which he is to be contented to take his seat, if nothing better offers. If the cars are at the time standing upon a part of the track where there.is no provision for landing or receiving either goods or passengers, he is to be satisfied with such means and facilities as may casually be within his reach. The company, considered as owners of the road or as carriers, are not, in either case, bound to make landings, or any provision whatever for the reception or discharge of passengers where none are expected to be. The duties and obligations of parties are construed reasonably, with reference to the nature of their business. We understand that the freight trains upon these roads sometimes amount to fifty or more cars, and extend in length to two thousand feet or more, and that it depends [43] apon what is, in this respect, mere matter of accident, the arrangement of the loading, where a place may be found for the casual passenger, who may be forced to adopt this way of travelling. It may be at any part of the train, and provision must be made, if at all, for a safe entrance at every part of the train and at every part of the road where a passenger may desire to be put on board. A rule like that must be equivalent to a refusal to allow any passengers to be carried in this mode, unless they are at hand to take their places at the regular depots, where the trains are loaded. It would be of mischievous consequence to adopt a rule which would deprive the railroad companies of the power to accommodate those whose occasions compel them to resort to these undesirable modes of conveyance.
Upon the facts, then, as they appear in this case, we are of the opinion that the railroad company was not bound to make any provision for the accommodation of a passenger like the plaintiff, beyond those ordinarily required by their own business, nor to have their road so constructed that he could safely go to and get into the cars. But that from the nature of the engagement the plaintiff agreed to be satisfied with the state of things as it existed, if it was safe and suitable for a freight train.
There is a further principle, applicable to this case, which stands in the way of a recovery by the plaintiff. It is well settled at common law, whatever doubts .may exist as to the justice of the rule, that the party who claims damages for the neglect of the duty of others to exercise proper care, cannot recover, if it appears that the injury he sustained, was in any degree caused by his own negligence or want of due care. The facts stated show that the plaintiff was upon the Concord Railroad track, several hundred feet below the freight depot, at two o’clock at night. The night was dark, and he knew nothing of the road, and was without any light or guide. He was at the southern end of a long train, and having learned that the conductor of the [44] Northern .train was at the head of the train towards the north, he passed up the track, which was on a high embankment, and fell into a passway built over a public road, left open at the top, that it might serve as a cattle-guard. If the case had been submitted to the jury, it would have been their duty to decide whether this was negligence in the plaintiff, and if so, whether it in any.degree cooperated to cause the damage he sustained. Referred to us, it seems impossible to hold it to have been done in the exercise of that due care which men in general exercise in transacting their own business, or even of that slight care which inattentive men ordinarily take in cases involving their lives or limbs. This, however, is a question of fact, on which a jury would, of course, judge for themselves.
The action, then, cannot be maintained upon the fasts presented by the case, and there must be
Judgment for the defendants,