Central R. R. Co. v. Morgan. 89 N. J. L. or make a record of the packages handled there. While working for the defendant he had no other employment, business or occupation. On January 4th, 1912, after finishing his work for the day at the express building, Black, in accordance with the custom, took charge of one of the empty express wagons and drove it along the passageway mentioned toward defendant's stable. While driving at a point where the passageway was crossed at grade by one of the plaintiff's railroad tracks, the wagon was struck by an engine owned and operated by the plaintiff, and Black was thrown therefrom and injured. Thereafter the two actions were instituted against the plaintiff. One was brought by Charles Black to recover for his personal injuries; the other by his father to recover the damages sustained by him as the result of the injuries to his son, a minor. The action brought by Charles Black was tried twice. At the first trial a verdict was directed in favor of the railroad company. On appeal, this court reversed the action of the trial court. Black v. Central Railroad Co., 85 N. J. L. 197. The second trial of the son's case and the trial of the father's case resulted in verdicts aggregating $6,000 in favor of the plaintiffs therein. The judgments entered on these verdicts were paid and satisfied by the plaintiff. In addition, plaintiff expended $250 in resisting these claims. The trial court in deciding the present case held that, at the time he was injured, Black was exclusively in the service of the defendant, having no other employment; that his injuries were sustained while on the premises of the plaintiff, and that, therefore, the defendant was bound to indemnify the plaintiff, under the above-quoted provision of the contract of August 6th, 1908, for the moneys it had thus expended. To use the language of the agreement of August 6th, 1908, the express company assumed all risks of injury to the person of any employe exclusively in its service while upon the premises of the railroad company, and agreed to indemnify and save it harmless from all loss, damage and expense that might be incurred by reason thereof. In the agreed state of facts it is stipulated that, while driving a team of the defendant, Black, who was exclusively 89 N. J. L. Central R. R. Co. v. Morgan. in the service of the defendant, was injured on the premises of the plaintiff on its passageway-where it was crossed at grade by its railroad track, the team and wagon which Black was driving having been struck by a locomotive owned and operated by the plaintiff, Black being thrown from the wagon and injured. The defence in this case was rested upon two pointsfirst, that the roadway in question was no part of the premises of the railroad company which the employes of the express company were licensed to use, but that they used the roadway as a public highway; and second, that at the time of the injury Black had finished his work for the day and was not in the discharge of his duties as an employe of the express company. In the agreed state of facts it is stipulated that the passageway upon which Black's injury occurred was the same as that dealt with by this court in Black v. Central Railroad Co., supra, which was the first suit growing out of the accident that was tried and which resulted in the reversal of a judgment for the defendant with a venire de novo; and the stipulation proceeds to state that the controversy here in question concerns the liability between the railroad company and the express company for the consequences of the same accident and injury passed upon in the above reported case. In that case (Black v. Central Railroad Co.) Mr. Justice Garrison, speaking for this court, said (at p. 200): "The plaintiff was injured while driving along a way which, if not a street, had very much the appearance of one. It was a continuation of a city street. It was paved like a street. It was lighted and sprinkled like a street. It was patroled by the city police like other streets, and where it was crossed by railroad tracks flagmen were stationed as is customary at street crossings. All of these things, with the exception of the police patrol, were the acts of the defendant. If, therefore, the way in question presented the appearance of being a street, the defendant had created such appearance and was therefore responsible for the consequences, one of which was that persons generally might use the way in the belief that Central R. R. Co. v. Morgan. 89 N. J. L. it was what it appeared to be. And to such user the liability of the defendant, arising out of the appearance so created by it, would be the same as if such street actually was what it appeared to be, under the rule that 'one who holds out a way as a public street, is liable.' 29 Cyc. 454. "Such liability is based not upon the landowner's dedication of the street and its acceptance by the public, but upon the appearance he has created, so that the question for the jury is not whether such acts of the owner were proof of an intention to dedicate a public street, but whether they had created an appearance calculated to induce the public to use the way in the belief that it was what it appeared to be. "Although the fundamental principle that underlies this doctrine is that of estoppel, it is generally treated under the head of implied invitation, thereby distinguishing it from express or inferred invitation, which is limited to those having business with the owner of lands or upon his premises." While this decision does not operate as a judgment res judicata because the defendant here, the express company, was not a party to the suit in which the judgment was rendered and had no opportunity to defend there, nevertheless, it operates stare decisis, that is, as a question settled by decision and forming a precedent which is not to be departed from. Its application here requires a holding that Black was injured on the premises of the railroad company which he was invited to use as though it were a public way. As to the second point. It is true that Black had finished his work in the express building before the accident happened to him. What he did was to take one of the defendant's teams and empty wagons and drive out from the building along the roadway toward the defendant's stable. This was not part of Black's regular duties, but it was the practice of those employed by the express company, having finished their work at the building, to take charge of any team and empty wagon which had made its last trip for the day and drive it to the stable for the purpose of avoiding a long walk. The situation in this regard was like that in Cicalese v. Lehigh Valley Railroad Co., 75 N. J. L. 897, where this court held: "Where a railroad company provides hand-cars for the transportation of its employes from the place where they have been working to a point convenient to their homes, even if the journey is commenced after the usual work of the day has ceased, the relation of master and servant continues until the employe has reached the destination to which he is being carried by, or with the consent of the company." There is no question as to the facts in the case at bar, and in deciding that Black was in the exclusive employ of the express company and on the premises of the railroad company when he sustained his injuries, although his day's work had been finished and he was taking a team and wagon of the express company to its stable, the trial court was correct in point of law. The stipulated facts upon this head made the law of the Cicalese case applicable. The judgment under review must be affirmed. For affirmance-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, TERHUNE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, JJ. 15. For reversal-None. STILLE C. CHEW ET AL., PARTNERS TRADING AS CHEW BROTHERS, PLAINTIFFS-RESPONDENTS, v. PENNSYLVANIA RAILROAD COMPANY, LANT. DEFENDANT-APPEL Submitted March 27, 1916-Decided June 19, 1916. In order to recover damages caused through an obstruction to navi gation by a bridge across a navigable stream in this state, it is not necessary for a plaintiff to plead or prove that the secretary of war has not proceeded under the River and Harbor act of Congress, approved March 3d, 1899, to ascertain that the given bridge is an unreasonable obstruction to free navigation. Chew v. Penna. R. R. Co. On appeal from the Supreme Court. For the appellant, Gaskill & Gaskill. 89 N. J. L. For the respondents, John Boyd Avis. The opinion of the court was delivered by WALKER, CHANCELLOR. The respondents, Chew Brothers, the owners and operators of a floating dredge for the digging of mud, sand and other materials, having procured employment for their dredge at a point above a bridge erected by the appellant, the Pennsylvania Railroad Company, over and across Crosswicks creek, a navigable stream in the county of Burlington in this state, proceeded to take the dredge up the creek, but because of the obstruction to navigation in the stream by the bridge, it became necessary for respondents to take down the superstructure of their dredge in order to navigate the same up the creek beyond the bridge and point of obstruction. After thus navigating the stream beyond the bridge and completing their work, respondents were again obliged to take down their superstructure to repass the bridge and get out of the stream. The only question submitted to the court below was, whether or not the plaintiffs were precluded from recovering, because they failed to allege in their pleadings and substantiate by proof, that the bridge in question had been declared by the secretary of war to be an "unreasonable obstruction" under the provisions of the River and Harbor act of congress approved March 3d, 1899. It was admitted that the defense was rested entirely upon the federal statute, and that the bridge actually did obstruct the respondents in the navigation of their dredge, so that they sustained damage to the extent of $600, which amount was to be found by the jury by direction of the court, if the court decided, as matter of law, that the statute did not protect the appellant. The trial judge at the conclusion of a colloquy with counsel, in which these admissions were made, |