Discriminations prohibited. 195.11(1)(1)
If any water carrier, or any agent or officer thereof, shall directly or indirectly, or by any device whatsoever, charge, demand, collect or receive a greater, less or different compensation for the transportation of persons or property or of any service in connection therewith than that prescribed in the tariffs then in force, or than it charges, demands, collects or receives from any other person, firm or corporation for a like and contemporaneous service, such water carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited.
It shall be unlawful for any water carrier to demand, charge, collect or receive from any shipper a less compensation for the transportation of property or for any service rendered or to be rendered by said water carrier, in consideration of said shipper furnishing any part of the facilities incident thereto; but any water carrier may rent any facilities incident to transportation and pay a reasonable rental therefor, but no payment shall be made by any carrier to an industry for performing any part of the service incident to the origination or determination of shipments which the carriers have assumed to perform under the provisions of the bill of lading.
History: 2005 a. 179
Preference by water carriers prohibited.
If any water carrier shall make or give any undue or unreasonable preference or advantage to any person, firm or corporation, or shall subject any person, firm or corporation to any undue or unreasonable prejudice or disadvantage in any respect whatsoever, such water carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited.
History: 2005 a. 179
Rebates and concessions, unlawful to accept.
It shall be unlawful for any person, firm or corporation knowingly to accept or receive any rebate, concession or discrimination in respect to water carrier transportation of property wholly within this state, or for any service in connection therewith, whereby any such property shall, by any device whatsoever, be transported at a less rate than that named in the tariffs in force, or whereby any service or advantage is received other than is therein specified. Any person, firm or corporation violating the provisions of this section shall forfeit not less than $100 nor more than $1,000 for each offense.
History: 1997 a. 254
; 2005 a. 179
Free transportation; reduced rates, passes, limitations. 195.14(1)(1)
This chapter does not prohibit the carriage, storage or handling by water carriers of freight free or at reduced rates for the United States, the state, or any municipality thereof, or for charitable purposes, or to and from fairs and expositions for exhibition thereat, or household goods the property of water carrier employees, or commodities shipped by employees for their exclusive use or consumption; or the issuance of mileage, commutation, party or excursion passengers' tickets; or the sale of such tickets as were usually and customarily sold at reduced rates prior to June 15, 1905; provided the same are issued and sold without discrimination to all persons applying therefor under like circumstances and conditions.
Water carriers may give transportation free or at reduced rates to any minister of the gospel, officers or agent of incorporated colleges, inmates of soldiers' homes, regular agents of charitable societies when traveling upon the business of the society only, destitute and homeless persons, water carrier officers, attorneys, physicians, directors, employees or members of their families, or to former water carrier employees or members of their families where the employees have become disabled in the water carrier service, or are unable from physical disqualification to continue in the service, or to members of families of deceased water carrier employees.
Water carriers may exchange passes with officers, attorneys, physicians or employees of other water carriers and members of their families. No person holding any public office or position under the laws of this state shall be given transportation free or at reduced rates that are not open to the public, except that notaries public and regular employees of a water carrier or other public utility who are candidates for or hold public office for which the annual compensation is not more than $300 to whom no passes or privileges are extended beyond those that are extended to other regular employees of such corporations may be granted free transportation or reduced rates for the transmission of any message or communication.
Upon any shipment of livestock or other property of such nature as to require the care of an attendant, the water carrier may furnish to the shipper or persons designated by the shipper, free transportation for such attendant, including return passage to the point at which the shipment originated; provided, there shall be no discrimination in reference thereto.
Except as provided in this section, no free transportation for intrastate traffic shall be given by any water carrier.
Transportation contracts, filed.
Every water carrier shall, when required and within the time fixed by the office, deliver to the office for its use copies of all contracts which relate to the transportation of persons or property, or any service in connection therewith, made or entered into by it with any other water carrier or any shipper or other person doing business with it.
Every water carrier shall keep and for 2 years preserve a record of every ticket, pass or mileage book issued to a resident of this state free or for a money consideration less than that charged the general public. Such record shall consist of the name of the recipient, the amount received, and the reason for issuance, and shall be open to inspection by the office upon reasonable notice during such period of 2 years.
Relocation of facilities. 195.19(2)(2)
Water carrier freight.
All water carriers shall keep and maintain adequate and suitable buildings and facilities for the receiving, handling and delivering of freight transported or to be transported by such water carriers.
(4) Relocation of railroad facilities.
Any city, village or town may cooperate with a railroad in grade crossing elimination or relocation, elimination or relocation of switchyards, roundhouses or terminals and may appropriate or borrow money therefor.
Joint use of railroad property.
Whenever, upon complaint and after hearing had, the office finds that public convenience and necessity require the use by one or more railroads of the tracks, wires, poles, rights-of-way, switches, bridges or other property belonging to another railroad over or on any street, railroad, railway, right-of-way, bridge or viaduct, upon or over which said railroads have a right to operate, and that such use will not prevent the owners or other users thereof from performing their public duties, nor result in irreparable injury to such owners or other users thereof, the office may, by order, direct that such use be permitted, and prescribe a reasonable compensation and reasonable terms and conditions for such joint use.
History: 1981 c. 347
s. 80 (1)
; 1993 a. 16
Any person proposing to erect or maintain a public elevator or public warehouse for the purchase, sale, storage, receiving or shipping of grain, or other personal property, to be received from or transported upon any water carrier, shall be furnished by such water carrier at a reasonable rental, a site upon its property or terminal; and any private elevator or warehouse situated upon such grounds may be converted into a public elevator or warehouse at the option of the owner, upon notice in writing to the water carrier and thereby be permitted to remain thereon under the same conditions as provided herein for a public elevator or warehouse; and the office shall, upon application by such owner, if the public interest so requires, by order, direct the water carrier to furnish such site and the office shall make reasonable regulations therefor and in case of disagreement, the office shall determine the rental therefor. Elevators and warehouses erected or maintained under the foregoing provisions of this section shall be subject to such rules and regulations as to charges and the manner of conducting business as the office shall prescribe.
Medical supplies on trains. 195.25(1)(1)
No railroad company shall operate any train that is not equipped with at least one medical emergency case with suitable equipment which shall be at all times kept in a definitely fixed, convenient and accessible place on such trains.
Any railroad company violating this section shall forfeit not less than $25 nor more than $100. Any person who shall remove or destroy or cause the removal or destruction of the medical supplies required under sub. (1)
after the railroad company has supplied them shall be subject to the same penalty.
History: 1985 a. 187
; 1997 a. 254
Safety devices; block system.
Every railroad and water carrier shall adopt reasonably adequate safety measures and install, operate and maintain reasonably adequate safety devices for the protection of life and property to the extent consistent with federal law. If after investigation the office shall determine that public safety requires it, the office may, if permitted under federal law, order a railroad to install, operate and maintain a block system or order a railroad or water carrier to install, operate, and maintain any other safety device or measure as may be necessary to render the operation of the railroad or water carrier reasonably safe.
Safe tracks and bridges.
Every railroad shall construct and maintain its tracks, bridges and line structures in a reasonably adequate and safe manner consistent with federal law.
Protecting grade crossings. 195.28(1)(1)
Petition; hearing; order.
Upon petition of the department, city council, village board, town board, superintendent of highways or by 5 or more electors in any town, village or city, or of any railroad corporation or railroad historical society, to determine whether a public highway and railroad grade crossing protects and promotes public safety, the office may investigate and issue an appropriate order without a public hearing. If the petitioner, railroad, railroad historical society or any interested party objects to the order and requests a hearing within 20 days after the date that the order is issued, the office shall proceed under s. 195.04
. Notice of an investigation or hearing shall be served upon the department, which shall be an interested party, and any recommendation it may file with the office at or prior to a hearing, if there is one, regarding crossing protection shall be considered as evidence in the proceeding. The office shall determine whether the existing warning devices at such crossing are adequate to protect and promote public safety. If the office determines, either without or after a hearing, that protection is not adequate, it may order the railroad company or railroad historical society to keep a flagman at the crossing or to install automatic signals or other suitable safety device at specific locations at such crossing. The office may order the relocation of existing signals and devices to improve protection at a crossing. Any crossing protection installed or maintained as approved by the office, whether by order or otherwise, shall be deemed adequate and appropriate protection for the crossing.
(1m) Arterial stop signs.
In any proceeding under sub. (1)
, the office may by order require that the state or municipality install at any crossing involved in such proceeding an official stop sign.
(2) Installation costs.
The cost of any signal or other crossing protection device which is ordered installed under sub. (1)
and the cost of installing any such device shall be paid by the department from the appropriations under s. 20.395 (2) (gj)
(3) Maintenance costs.
Except as otherwise provided in this subsection, the cost of maintaining crossing protection devices ordered under sub. (1)
shall be the responsibility of the railroad or railroad historical society. Any railroad company or railroad historical society that incurs expenses for maintenance of signals or other safety devices may file a claim for reimbursement with the department regardless of the date of installation of the signals or devices. At the close of each fiscal year the department shall reimburse claimants under this subsection for 50 percent of the costs, as determined by the office, incurred for maintenance of railroad crossing protection devices from the appropriations under s. 20.395 (2) (gj)
. If the amount in the appropriations under s. 20.395 (2) (gj)
is not adequate to fund maintenance reimbursement under this subsection, the amount shall be prorated in the manner determined by the office.
(4) Previous office orders.
applies to maintenance costs for all crossing protection devices regardless of any prior order of the office apportioning maintenance costs.
Exempt railroad crossings. 195.285(1)(1)
Upon the petition of a railroad corporation, the department, or the governing body of any city, village, town or county asserting that the stopping of vehicles under s. 346.45
at a railroad crossing is hazardous to human life, the office shall hold a hearing on the matter as provided under s. 195.04
. Notice of petition shall be served upon the department, which shall be an interested party, and any recommendations it may file with the office regarding the hazardous effect of vehicles stopping at such crossings shall be considered as evidence in the proceedings. Upon the recommendation of the department and concurrence by the office, the petition may be dismissed without holding a hearing. If, upon the public hearing, the office determines that it would be in the public interest to exempt vehicles specified in s. 346.45
from stopping at such grade crossing, it may order the public body having jurisdiction over the highway to erect signs, signals, markings or other devices exempting such vehicles from stopping at the crossing.
Signs placed upon the order of the office under this section shall exempt vehicles from stopping as required under s. 346.45
, unless a train, an engine, or railroad track equipment is occupying or approaching the crossing.
The department shall establish standards for the type of signs, signals, markings or other devices for exempting vehicles from stopping as required under s. 346.45
and their location in relation to the highway and railroad track. The office may upon petition or its own motion, with or without a hearing, order the removal of a sign exempting vehicles from stopping at a crossing.
Highway crossings, advance warning signs. 195.286(1)(1)
Railroads to furnish; placement.
Each railroad company shall furnish to each county in which it operates, upon request of the county highway commissioner, a sufficient quantity of advance warning signs to enable the county and town to comply with this section. The county highway commissioner on roads maintained by the county and the town board on roads maintained by the town shall immediately install and thereafter maintain such signs in good condition, near each grade crossing (other than state trunk highway crossings and crossings within the limits of cities and incorporated villages). The town board shall requisition its needs for advance warning signs from the county highway commissioner. The cost of such installation and maintenance shall be paid out of moneys received by the county or town, as the case may be, for highway maintenance. The department shall provide, install and maintain advance warning signs at all railroad grade crossings on the state trunk highway system outside of cities and incorporated villages. The department, upon petition and upon investigation and finding that such signs are impracticable or unnecessary on any highway, may release the town, county or state from the provisions of this section as to such highway.
(2) Signs described.
Such signs shall be round and of a size, color and message as specified by the department and approved by the office. Any change in these signs shall not be retroactive.
Such signs shall be placed in conspicuous locations beside every highway which crosses a railroad at grade (outside of cities and incorporated villages) as near as practicable to the traveled portion of the highway on each side of such crossing, at a location and in a manner to be prescribed by the department, the county highway commissioner or the town board, or, if the crossing is so near city or village limits that the sign will be within such limits, by the city council or the village board, as the case may be.
In case any sign installed as provided in this section, other than that on the state trunk highway system, is destroyed or becomes illegible by any cause whatsoever, the railroad company, upon request from the county highway commissioner, shall forthwith deliver another such sign at the crossing near which it is to be installed; neither the installation of said signs nor the failure to install or maintain the same shall render the town, county or state liable for any accident that may occur by reason of such installation or neglect.
(5) Other signs prohibited.
No other sign of the general size or appearance of the signs provided for in this section shall be placed or permitted upon any highway, nor any sign between such advance signs except signs or signals required by law or permitted by the office for protection at railway crossings.
(6) Penalties relating to interference with signs.
Any person who removes, throws down, injures or defaces any sign required by this section shall, upon conviction, be fined not more than $25.
(7) Penalties generally.
Any person or corporation upon conviction for the violation of any of the provisions of this section, except sub. (6)
, shall forfeit not less than $100 nor more than $200 for each violation.
The district attorney shall prosecute any person violating this section, or begin and maintain any civil action necessary for its enforcement upon the demand of any county highway commissioner, the department, or the office.
Railroad highway crossings. 195.29(1)(1)
Petition, hearing, order.
Upon petition by the common council or board of any city, village, town or county within or bordering upon which a highway or street crosses a railroad, or a highway or street is proposed to be laid out across a railroad, or a public highway bridge across a railroad is required to connect existing streets or highways, or upon petition by any railroad whose track crosses or is about to cross, or is crossed or about to be crossed by a street or highway, or upon petition by the department, in cases where provision has been made for the improvement of the highway adjacent to such crossing under any state aid or federal aid law, that public safety requires an alteration in such crossing, its approaches, the method of crossing, the location of the highway or crossing, or the closing of the crossing, and the substitution of another therefor at grade or not at grade, or the removal of obstructions to the view at such crossing, the relocation of the highway, or requires the determination of the manner of making such new crossing, or of making the proposed improvement or promoting the public safety or public convenience through any other reasonable method, and praying that the same may be ordered, the office shall give notice to the parties in interest and proceed to investigate the same and to order a hearing thereon in the manner provided by s. 195.04
. The office shall determine what, if anything, shall be done to promote the public safety and the means by which it shall be accomplished, whether by the relocation of the highway, the alteration in such crossing, approaches, mode of crossing, location of highway crossing, closing of highway crossing, with or without the substitution of another therefor, the construction of a public highway bridge, the removal of obstructions to sight at crossing, or by the use of other reasonable methods, and by whom the same shall be made, and in case of new crossings the advisability of allowing such crossings to be established and manner of making them.
(2) Apportionment of expense.
The office shall fix the proportion of the cost and expense of alterations, removals and new crossings, or any other work ordered, including the damages to any person whose land is taken, and the special damages which the owner of any land adjoining the public street or highway shall sustain by reason of a change in the grade of such street or highway, or by reason of the removal of obstructions to view at such crossings, to be paid or borne by the railroad companies and the municipalities in interest. In fixing such proportion, the office may order such cost and expense so apportioned to be paid by the parties against which the apportionment shall be made.
(3) Restoration of spur tracks.
Whenever the office shall have ordered a separation of the grade of a railway from the grade of a street or highway, it may, if safe and practicable and if a necessity exists therefor, order the alteration, restoration and connection of any track serving an industry. Demand for such restoration shall be in writing and filed with the office within 90 days after the date of the order for the separation of grades, and any such track for which no such demand shall have been made shall be deemed abandoned. If the office shall order the alteration, restoration and connection of any such track, it shall by its order apportion the cost thereof between the owner of the industry served and the railway company, in such proportion as to the office may seem just and equitable; and the office shall in its order prescribe the terms and conditions for securing the payment of such cost.
(4) Grade separation in Milwaukee County.
The office may upon petition of any town, city or village, or upon its own motion, when the interests of the public demand it and it is found practicable so to do, establish the grade of the tracks of any railroad, or of all the railroads throughout any county having a population of 750,000 or more, or any part thereof, and the grades of the streets or highways, or any of them, where they cross such railroad track or tracks, in anticipation of the future separation of grades of the railroad tracks from the grades of such streets or highways. The office, before making any such order, shall mail notice to the railroad company or companies affected, the owners or occupants of any building abutting on that part of the railroad the grade of which is to be established, all 1st class cities in the county, and if the grades to be established are outside the 1st class city, the towns, cities or villages in which such grades are to be established, of the filing of such petition or that the office contemplates establishing such grades, and fixing a time at which the 1st class cities and such other towns, cities or villages and the railroad company or companies affected thereby and any other person or corporation interested therein may be heard. The grades so established under this subsection shall be described by reference to a base or datum line to be established by the office, from which all elevations and the height of all grades shall be measured, and the grades so established shall be such that when brought to the established grade the railroad tracks will cross the streets and highways above or below the same. Such order shall not necessarily require a present change in grade but the office may at any time order the railroad track or tracks and the street and highways brought to the grade established or any street or highways closed by the order, in accordance with sub. (1)
, and may, at the time of making the order, apportion the cost of separating the grades as provided in sub. (2)
(5) Elimination of grade crossings, costs.
Upon petition of the department, or of the common council or board of any city, village, town, or county, alleging that one or more of them have undertaken or propose to undertake to relocate or improve an existing highway or to construct a new highway in such manner as to eliminate a highway grade crossing with any railroad or so as to permanently divert a material portion of the highway traffic from a highway grade crossing with any railroad, the office shall issue notice of investigation and hearing, as provided in s. 195.04
. If upon such hearing the office finds that the public safety will be promoted by the highway relocation, improvement, or new construction, the office shall order the old crossings closed and new crossings opened as are deemed necessary for public safety. The order shall require the railroad company or companies to pay to the interested municipality or municipalities such sum as the office finds to be an equitable portion of the cost of the highway relocation, improvement, or new construction, if the work is performed by the municipalities; or to the secretary of administration if the work is performed by the state; or to the proper county treasurer if the work is performed by the county. The sum shall be added to the joint fund available for the improvement and may be expended in like manner as the other portions of the fund.
(6) View at crossings; trees and brush near crossings; forfeiture.
Every railroad shall keep its right-of-way clear of brush or trees for a distance of not less than 330 feet in each direction from the center of its intersection at grade with any public highway to provide an adequate view of approaching trains or railroad track equipment from the highway. Every municipality shall keep the public highways within its jurisdiction clear of brush and shall adequately trim all trees within 330 feet of the center of any railroad highway grade crossing. Every person or corporation owning or occupying any land adjacent to any railroad highway grade crossing shall keep all brush cut and adequately trim all trees on the land within the triangles bounded on 2 sides by the railway and the highway, and on the 3rd side by a line connecting points on the center lines of the railway and the highway, 330 feet from the intersection of the center lines. The office, upon its own motion, or upon any complaint to the effect that any work required by this subsection has not been performed, after due notice and hearing, may order the corporation, municipality or person at fault to perform the work; provided, however, that if the physical conditions at any crossing are such that the performance of the required work will not materially improve the view for highway traffic, or, if unreasonable loss would be caused thereby, the office may excuse the party in interest from performing the same. The office may also order the cutting of brush and the trimming of trees at private farm crossings as may be necessary and reasonable. If any person shall violate any provision of this section, or shall fail, neglect or refuse to obey any order made by the office under this section, or any judgment or decree made by any court upon such an order, for every such violation, failure or refusal such person shall forfeit not less than $25 nor more than $150.
(7) Structure requirements.
Whenever the office shall order the construction or reconstruction of a crossing not at grade, it may direct that the structure required shall be of such character and constructed of such materials as it shall deem appropriate to the situation and necessary for the public interest.
(8) Acquisition of lands.
Any lands needed to carry out the provisions of this section may be acquired.
A landowner incurs no liability to highway users who are injured as result of the landowner's violation of sub. (6). Wells v. Chicago & North Western Transportation Co. 98 Wis. 2d 328
, 296 N.W.2d 559
Railroad crossings; grade separation, safety devices. 195.30(1)(1)
Upon a petition by the common council of any city, or the board of any village, town or county within which a railroad crosses another railroad at grade, or by any such railroad, that public safety requires an alteration in the crossing or the installation of protective appliances, the office shall give notice to the parties in interest, and proceed to investigate the same and may order a hearing on the matter. The office shall determine what alteration in such crossing, if any, shall be made, and by whom made and maintained, or what protective appliances shall be installed, operated and maintained at the crossing and by whom installed, operated and maintained. The office shall fix the proportion of the cost and expense of such change in grade and maintenance of the crossing or of the installation, operation and maintenance of the safety appliance which shall be paid by the railroad companies, respectively.
The provisions of this section shall apply to drawbridges, junctions and other fouling points on railroads.
History: 1981 c. 347
s. 80 (1)
; 1993 a. 16
History: 2001 a. 14
Bridges made safe.
Whenever a complaint is lodged with the office by the common council of any city, the village board of any village, a member of a town board, or a supervisor of highways, or by 5 or more electors and taxpayers in any town, or 5 or more electors of the county in which such bridge is located, and who are users of such bridge or railway, to the effect that a bridge erected over a stream intersecting a public highway or highways upon which a railway is constructed and operated, is unsafe and dangerous to travelers over such highway or highways or bridge or railroad, and that public safety requires the alteration, the repair or reconstruction of such bridge, or the substitution of another bridge therefor, it shall be the duty of the office to give notice to the party or parties in interest, other than the petitioners, of the filing of such complaint, and to furnish a copy of the complaint to the party or parties in interest other than the petitioners, and to order a hearing thereon, in the manner provided for hearings in ss. 195.04
. The office may proceed in a similar manner in the absence of a petition when, in the opinion of the office, public safety requires the alteration, repair or reconstruction of a bridge or the substitution of another bridge for the bridge in question. After the hearing, the office shall determine what alteration or repair or reconstruction of such bridge, and the approaches thereto, shall be made, or if it shall determine that public safety requires the substitution of a new bridge, it shall determine the character, manner of construction and location of such bridge and the approaches thereto. The office shall fix the proportion of the cost and expense of such alteration, repair, reconstruction or substitution of a new bridge, including the damage to any person whose land is taken, and the special damage which the owner of any land adjoining the approaches to said bridge shall sustain by reason of the alteration, repair, reconstruction or substitution of a new bridge, to be paid by the railroad company and the city, village or town in interest.
Safety gates on drawbridges.
Whenever a complaint is filed with the office to the effect that any drawbridge is not equipped with gates or other safety devices, the office may notify the proper party or parties in interest of the complaint, and may proceed to investigate the complaint and to hold a hearing on the matter in the manner provided for hearings in ss. 195.04
. If after the investigation the office determines that public safety requires the erection and maintenance of gates or other safety devices at the points mentioned in the complaint, it may order the county, city, village, town, corporation or person whose duty it is to maintain such bridge to erect and maintain at such points such gates or other safety devices as the office prescribes. The office may conduct the investigations, hold the hearings and make the orders provided for in this section upon its own motion in the same manner and with the same effect as though a complaint were filed.
Reports of accidents, investigation.
Every water carrier shall report to the office all accidents resulting in injury to persons arising from its operation. The office may issue rules concerning the reporting of accidents by water carriers and may also, if public interests require, cause an investigation of any accident. Every railroad shall submit to the office a copy of any accident or injury report provided by the railroad to the applicable federal authority for all collisions, derailments or other accidents resulting in injury to persons, equipment, or roadway arising from its operation. The office may issue rules concerning the submission of copies of federal reports under this section and may also, to the extent permitted by federal law, participate in any accident investigation.
See also ss. RR 2.12
, Wis. adm. code.
If any director, officer, employee or agent of a railroad or water carrier, in the course of the discharge of his or her duties, willfully, wantonly or recklessly causes to be done or permits to be done any matter, act or thing in this chapter prohibited or declared to be unlawful, or willfully, wantonly or recklessly fails to do any act, matter or thing required to be done by this chapter, the railroad or water carrier shall be liable to the person injured thereby in treble the amount of damages sustained in consequence of the violation. No recovery as in this section provided shall affect a recovery by the state of the penalty prescribed for such violation.
The burden of proof in an action under sub. (1)
rests with the person injured to prove the case by clear and convincing evidence.
A treble damage claim is no longer a separate cause of action because gross negligence is to be compared like all other negligence. Kania v. Chicago & North Western Railway Co. 57 Wis. 2d 761
, 204 N.W.2d 681
General penalty upon railroads and water carriers.
If any railroad or water carrier shall violate any provision of this chapter, or shall do any act herein prohibited, or shall fail or refuse to perform any duty enjoined upon it, for which a penalty has not been provided, or shall fail, neglect or refuse to obey any lawful requirement or order made by the office, or any judgment or decree made by any court upon its application, for every such violation, failure or refusal in respect to any matter prescribed by this chapter such railroad or water carrier shall forfeit not less than $100 nor more than $10,000. The act, omission or failure of any officer, agent or other person employed by any railroad or water carrier, acting within the scope of his or her employment, shall be deemed to be the act, omission or failure of such railroad or water carrier.