Harden v. North Carolina Railroad, 129 N.C. 354 (1901)

Dec. 17, 1901 · Supreme Court of North Carolina

129 N.C. 354

HARDEN v. NORTH CAROLINA RAILROAD CO.

(Filed December 17, 1901.)

1. NEGLIGENCE — Master and Servant — Automatic Couplers — Railroads.

The failure of a railroad company to equip its freight cars with self-coupling devices is negligence per se.

'2. LEASE — Railroads—Damages—Negligence.

The lessor of a railroad is liable for the negligence of the lessee in the operation of the road.

Cook, J., dissenting.

ActioN by C. D. Harden against the North Carolina Railroad Company, beard by Judg'e George U. Broivn and a jury, at May Term, 1901, of tbe Superior Court of RowaN County. From a judgment for tbe plaintiff, tbe defendant appealed.

Overman & Gregory, for tbe plaintiff.

Chas. Price, F- H. Busbee, and A. B. Andrews, Jr., for tbe defendant.

Clare, J.

Tbe plaintiff was a brakeman in tbe service of tbe Southern Railway Company (lessee of defendant), on a freight train, and was injured in making a coupling be- ■ tween a box-car and tbe shanty-car “with a link and tbe old-style draw-bead.” Tbe shanty-car was not equipped with automatic couplers, nor was tbe train fully equipped with Janney couplers, or other modem self-coupling devices, and tbe Court charged tbe jury, citing Greenlee v. Railroad, 122 N. C., 977, 65 Am. St. Rep., 734 — since followed in Troxler v. Railroad, 124 N. C., 189, 70 Am. St. Rep., 580, and otbe cases — as follows: “If you find that tbe freight train was not fuly provided with modern self-acting couplers, and that tbe plaintiff would not have been injured had the cars been so provided, you will find tbe first issue ‘Tes’ and tbe second issue ‘No.’ ” . Tbe Judge followed tbe decisions of this Court, and, without repeating tbe argument therein, it is sufficient to say that we re-affirm our former rulings bolding a railroad company responsible for injuries to its employees which would not have occurred if there bad been provided by it those humane devices protecting tbe lives and limbs of its employees, which are in general use. Tbe reports of tbe United States Intercommeree Commission, .issued by tbe authority of tbe Federal government, show tbe reduction of many thousands annually in tbe number of employees killed or maimed in coupling'cars since tbe introduction of'automatic couplers (which now is compulsory'under tbe act of Congress as to all interstate roads). This should be a sufficient answer to all complaints as to our former rul.ing. If tbe lives and limbs of employees can be saVed by sucb provision of improved appliances, public policy and humanity require, tbe Courts to exact liability for failure to furnish them.

Tbe principal point made, however, is in the effort to induce this Court to overrule a still longer line of decisions which hold this lessor, the North Carolina Nailroad Company, liable for the act and defaults of its lessee, the Southern Hallway Company. The charter of the North Carolina Nailroad Company, Laws 1848-9, Chap. 82, sec. 19, authorize the company “to farm out its right of transportation over said railroad, subject to the rules above mentioned.” There are no other words from which a right to lease the road can be inferred. As at the date of the charter railroads were comparatively new, and the popular idea was that a railroad company was to maintain the road-bed and “farm out” rights of transportation over it, as was the case with canal companies, and is to-day the case with express companies and many “fast freight” and “through lines,” it was thought by many that these words did not authorize, and were not intended to authorize, alease of its entire property, which lease had the effect to take it out of a “State system” running from the mountains to the seacoast under State control, and make it a part of an interstate line running North and South, under the control of foreign corporations, to the utter destruction of the “State system” intended by the charter of the defendant. The authority to lease, based upon the permission “to farm out its rights of transportation,” came before this Court in State v. Railroad, 12 N. C., 634, and that expanded construction was sustained by a divided Court, Judge Settle writing the opinion, Judge Bynum dissenting in a remarkably able opinion. Judge Nodman did not sit. If it were a new question, this Court might possibly hold with Judge Bynum as to the reasonable- construction of the meaning of tbe words “to farm out the right of transportation,” but the lessee' would rely upon the fact that it took its lease relying upon the construction placed by this Court upon the meaning of those words. But it also made its lease subsequent to the decision of this Court — -often since repeated — that those words did not allow the lessor to rid itself, by any lease made under authority conferred by those words, of liability for any acts or negligence or torts committed by the lessee as to the world, its passengers or its employees, the latter being held in effect to be simply sub-employees of the lessor, employed by its agent for the operation of the road, its lessee.

In Aycock v. Railroad, 89 N. C., 321 (1883), it had been held, Smith, O. J., the authorities “fully sustain the proposition that the defendant company leasing the use of its road or permitting the use of it by another company, remains liable for the consequences of the mismanagement of the train in charge of the servants of the latter and the injury thence resulting, to the same extent as.if such mismanagement was the act or neglect of its own servants operating its own train,” citing the authorities.

In Logan v. Railroad, 116 N. C., 940, this very charter of the defendant company was elaborately considered, and in an able opinion by Mr. Justice Avery, concurred in by the entire Court, it was held that no lease made by virtue of the above-cited words — there being no clause of exemption granted to the lessor — would exempt the defendant from liability for the wrongful acts, defaults or negligence of its lessee, and hence that the lessor company was liable for injuries sustained from the negligence of its lessee by a section hand employed by such lessee.

This decision was rendered by this Court at February Term, 1895, and the lessor and lessee, both aware of the construction placed by the Court upon a contract by lessor to “farm out its right of transportation” on 16th August following executed the lease under which the lessee is now oper a-ting the defendant’s road. Both parties had that decision in view, and provided for the liability of the defendant for all the acts and defaults of its lessee by a stipulation in said lease (which lease is filed as a part of the record in this case) for a deposit of “not less than $175,000 in cash, or its equivalent, to be applied” to the performance of the stipulations in the contract to- be performed by the lessee, and among them “to any judgment or judgments recovered in any Court of the State or of the United States when finally adjudicated, for any tort, wrong, injury, negligence, default or contract, done, made or permitted by the parties of the second part, its successors, assigns, employees, agents or servants for which the party of the first part shall be adjudged liable, whether the party of the first part is sued jointly with or separately from the party of the second part,” and further provides to what agents of the lessee notices of such suits shall be given by the lessor when sued singly, and for \the renewal and maintenance of said sum whenever diminished by such application of any part thereof.

The lease was made subsequent to the decision of the Logan case. Both lessor and lessee knew of the continuing liability of lessor under any lease authorized by the words “farm out,” as construed by this Court, and stipulated, in view of such liability, a deposit being put up, to be maintained at a fixed sum to guarantee the lessor, the defendant herein. If the lease is valid because made subsequent to the decision of a divided Court in State v. Railroad, 72 N. C., 634, it does not lie in the mouth of the lessor to contend that it does not remain liable for all acts of its lessee in the operation of its road under a lease made subsequent to the decision of a unanimous Court in Logan v. Railroad, 116 N. C., 940, especially when it has stipulated against loss therefrom by exacting a deposit from its lessee. And, in fact, tbe lessor bas not complained. This objection has several times been raised in this Court, but always by counsel of the lessee, and ruled upon again and again, always in conformity to the precedents in Aycock’s case, 89 N. C., 321, and Logan’s case, supra. The defendant' has never averred any loss, detriment or probable damage by reason of its being held liable for the acts of its lessee as its agent in the operation of the road. The lessee, the Southern Railway Company, is the only railroad company operating in this State which claims to be a foreign corporation, as we know from the statutes incorporating all others, except possibly one other lessee. It has been stated by its counsel in their place here that the Southern Railway Company has- “domesticated” — but it is unnecessary to discuss here the point which has been decided in Debnam v. Tel. Co., 126 N. C., 831. Whether the lessee be a foreign corporation or not, the lessor when it entered into this lease, knew that by the terms of its charter, as construed by this Court, it would remain liable, notwithstanding such lease, for the acts of its lessee. Logan v. Railroad, supra, has been cited and approved on this point, Tillett v. Railroad, 118 N. C., at page 1043; James v. Railroad, 121 N. C., 528; Norton v. Railroad, 122 N. C., at page 931; Benton v. Railroad, Ibid, at page 1009; Pierce v. Railroad, 124 N. C., at page 93; Perry v. Railroad, 128 N. C., at page 473, and in Raleigh v. Railroad, at this term, in most of which cases this defendant was a party.

Had Logan’s case not be.en decided prior to the lease made by the lessor, and stipulations in view thereof made in the lease-, and viewed as an original question, it is sustained by the overwhelming weight of authority and upon reason. In 20 Am. and Eng. R. R. Cases Annotated, at page 841, the rule is laid down: “A railroad company which has leased its road, cars and engines,'and allows the lessee company to operate tbe same, is liable to third persons or tbe public for tbe carelessness and negligence of tbe lessee, and for defects in tbe construction and maintenance of tbe road and its equipments, unless there is a statutory provision to tbe contrary” (and there is none in this case). Eor this propo-' sition- it there cites thirty-six cases from tbe United States Courts and tbe Courts of tbe different States, and from England, and it is not necessary to repeat them here. In Railroad v. Brown, 84 U. S., at page 450, tbe Court says: “It is tbe accepted doctrine in this country that a railroad corporation can not escape tbe performance of any duty or obligation imposed by its charter or tbe general laws of tbe State by a voluntary surrender of its road into tbe bands of lessees. Tbe operation of tbe road by tbe lessees does not change the relations of tbe original company to tbe public,” and cites with approval 1 Redf. Railways, to same effect. Also to tbe same purport are 1 Beach Pr. Corp., sec. 366; 1 Spelling Pr. Corp., 135, and several other authorities cited in Logan v. Railroad, 116 N. C., at pages 946 et seq.

In Harmon v. Railroad, 28 S. C., 401, tbe words of tbe charter construed were almost identical with those in defendant’s charter, and it was held that a lease made thereunder did not relieve tbe lessor from liability for tbe acts of its lessee. In Bank v. Railroad, 25 S. C., 216, tbe same ruling is made as to non-delivery of freight, the Court saying: “We are unable to appreciate tbe distinction attempted to be drawn by appellant’s counsel between tbe liability of a railroad company which has leased its line to another, to actions ex delicto and ex contractu. Tbe foundation for such liability is that such company, by accepting its charter, assumed obligations to tbe community from which it can not absolve itself by leasing its road to another company; and as such carrier is not only under an obligation to carry passengers safely, but also to deliver goods entrusted to it for transportation, we think the same principle Avhich would make the lessor liable in the one case would make it liable in the other.”

In Balsley v. Railroad, 119 Ill., 68, it is said that the. liabilty of the lessor for the acts of the lessee is not merely because the lessee is the agent of the lessor, but further because the lessor in consideration of the grant of its charter undertook the performance of duties and obligations, and it is against public policy for it to be relieved therefrom without the express consent of the Legislature.

In 20 Am. and Eng. E. Cases, at page 848, it is said: “A railroad company which leases its road pursuant to a statutory authority, which does not contain any provision releasing it from the performance of its duties to the public, is liable for personal injuries sustained through negligence in the operation of the road by the lessee. To the same purport are:

United States. — Thomas v. Railroad, 101 U. S., 83; R. Co. v. Brown, 84 U. S., 445; R. Co. v. Barron, 72 U. S., 90; R. Co. v. Winans, 58 U. S., 39.

Georgia. — Singleton v. Railroad, 70 Ga., 464, 48 Am. Rep., 574; Railroad v. Moyes, 49 Ga., 355.

Illinois. — Railroad v. Dunbar, 20 Ill., 623; R. Co. v. Lane, 83 Ill., 448; Railroad v. Campbell, 86 Ill., 443; Railroad v. Peyton, 106 Ill., 534; Balsley v. Railroad, 119 Ill., 68, 59 Am. Rep., 185; R. Co. v. Meech, 163 Ill., 305.

Maine. — Whitney v. Railroad, 44 Me., 362; Stearns v. R. Co., 46 Me., 95; Nugent v. R. Co., 80 Me., 62.

Massachusetts. — Quested v. R. Co., 127 Mass., 204; Braslin v. R. Co., 145 Mass., 64 (where the contract of lease is much as in this case).

Missouri. — Brown v. R. Co., 21 Mo., App., 394.

Nebraska. — Charlotte v. R. Co., 26 Neb., 159.

New York. — Abbott v. R. Co., 80 N. Y., 21, 36 Am. Rep., 512.

North Carolina. — Aycock v. Railroad, (1883) 89 N. C., 321; Logan v. R. Co., 116 N. C., 940; Tillett v. Railroad, 118 N. C., 1043; James v. R. Co., 121 N. C., 528; Norton v. R. Co., 122 N. C., 937; Benton v. R. Co., Ibid., 1009; Pierce v. R. Co., 124 N. C., 93; Perry v. R. Co., 128 N. C., 473; Raleigh v. R. Co., at this term.

Oregon. — Lakin v. R. Co., 13 Ore., 436, 57 Am. Rep., 25.

South Carolina. — Harmon v. R. Co., 28 S. C., 401; Hart v. R. Co., 33 S. C., 427; Bank v. R. Co., 25 S. C., 216.

Texas. — Railroad v. Underwood, 67 Tex., 589; Railroad v. Morris, Ibid, 692; Railroad v. Morris, 68 Tex., 49.

Washington. — Cogswell v. R. Co., 5 Wash., 46.

In 71 Am. Dec., 295, it is said by Judge Freeman in bis notes: “It is a well-settled doctrine that, in the absence of legislative authority permitting a lease and exempting the company from liability, it is responsible for the toils of the lessee” — citing many cases.

In Nelson v. R. Co., 26 Vt., 717, 62 Am. Dec., 614, Chief Justice Redfield says: “As to the liability of the defendants for the acts of their lessees, who were running the defendants’ road under a long lease, yve think there can be no doubt. Unless we can hold the defendants thus liable, they might put their road into the hands or corporations or individuals of no responsibility.”

• If a railroad corporation could relieve itself of liability by leasing, it would follow that leases could be made to another corporation with no tangible assets — as, indeed, the lessee in this case, if a foreign corporation, has none in this State — leaving the travellers and shippers over its line, the general public and its employees alike, without recourse on the property of the corporation which was chartered to operate the road, and which is left in- receipt of the rent, which might readily be made high enough to cover the profits. Thus tbe company would, by a device of a lease, receive tbe profits without incurring tbe liabilities of its business.

In many cases it bas been held that a bona -fide mortgage can not bave tbat effect. Acker v. Railroad, 84 Va., 648; Naglee v. R. Co., 83 Va., 707; Railroad v. Burnett, 123 N. C., 210, and tbe rights of mortgagees for money presumably applied to debts are stronger than those of lessors.

■ Tbe question here is not tbe liability of lessees, which also exists, but of tbe right of tbe lessor to put off tbe liabilities incident to tbe franchise given it, while continuing to enjoy its profits through tbe medium of a lease. This tbe corporation owning tbe property can not do.

No Error.

Cooic, J.,

dissenting. As stated in tbe opinion of tbe Court, tbe principal point raised in this case is to review and overrule tbe principle heretofore laid down by this Court in tbe case of Logan v. R. R., 116 N. C., 940. And this being tbe first time tbe question bas ever been squarely presented for our consideration since I bave been a member of tbe Court, I shall now express my opinion independent of what bas heretofore been held, and shall confine my investigation closely to tbe subject-matter of this ease.

Tbe issue is plain: Is tbe North Carolina Railroad Company, lessor of tbe Southern Railway Company, lessee, responsible for tbe contracts and liable for tbe torts made and committed by tbe said lessee in tbe management and operation of its business of transportation as a common carrier under the rights and powers granted in tbe charter of tbe former, tbe North Carolina Railroad Company? This is the principal point to be decided in this case, and arises in an action brought by plaintiff, a brakeman and employee of the Southern Railway Company, to recover damages for injuries sustained by Mm while coupling its cars and while in its employment.

-Regardless of what has been decided upon the statutes of other States, and the liability of railroads operating under various charters under those statutes, let us read the charter in this case, introduced as evidence and sent up as a part of the record in this appeal, and consider it as it really is, and place upon it a plain common sense construction according to the true meaning of its terms and the intent of the Legislature which enacted it.

Our first inquiry is directed to the nature and character of the charter with relation to the contracting parties, viz., the State which authorized it on the one part and the citizens or stockholders who paid their money and became a party to it on the other part; next, to the terms expressed therein, and then to the powers, rights and liabilitise under its terms.

The charter having been enacted prior to the Constitution of 1868, to-wit, January 21, 1849, it became and was a contract between the State and the company, and can not be amended, changed or repealed, except with and by the consent of both parties. As to' the terms, it is unnecessary to set out any part of the charter except sections 18 and 19, which are the only sections material to the decision of this action, the other sections referring principally to the organization and management of the company. Sections 18 and 19 are as folloAvs: “18. That the said company shall have the exclusive right of conveyance or transportation of persons, goods, merchandise and produce over the said railroad to be by them constructed, at such charges as may be fixed on by a majority of the directors. 19'. That the said company may, when they see fit, farm out their right of transportation over said railroad, subject to- the rules above mentioned; and said company, and every person who may have received from them the right of transportation of goods? wares and produce on tbe said railroad, shall be deemed and taken to be a common carrier, as respects goods, wares, produce and merchandise entrusted to them for transportation.”

The right of the North Carolina Eailroad Company to make the lease to the Southern Eailway Company is conceded in the opinion of the Court, so this narrows our discussion down to the liabilities resting upon the two parties to this lease. The “exclusive right of conveyance or transportation” granted in section 18, being “farmed out,” or leased, under the authority and power granted in section 19, it must necessarily follow under the terms of the lease that all contracts by the lessor of the same ceased, and there could be no relationship of principal and agent existing between the parties; and under section 19 the lessee company “received from them (the North Carolina Eailroad Company) the right of transportation,” and were “deemed and taken to be a common carrier.” And it must likewise follow, as a logical result, that when the actual -as well as legal right of contract ceased under the authority of law, all liability on account of such contract must likewise cease. It would be an anomaly in law to hold one party responsible for the acts of another over whom he had no authority, in fact or by right, and between whom there was no privity of interest.

If this construction of the chartered rights of the North Carolina Eailroad be sound in law, then it can not be liable for a contract or tort made or done by the sole owner of the right of transportation. And, therefore, it is my opinion that the plaintiff is not entitled to recover against the defendant company.

The question of liability incident to the corpus or management of the physical structure of the property owned by‘defendant company under its charter, and upon which the.transportation depends, does not arise in this action.

At this term of the Court, in City of Raleigh v. N. C. Rail road Co., we bave in. a measure passed upon that question, but sucb liability is not involved in tbis case.

The case of Aycock v. Railroad, 89 N. C., 321, is not an authority in tbis case. There, tbe Carolina Central Railroad Company was running its engines and trains over tbe track of tbe Raleigh and Augusta Air-Line Railroad Company, simply by its permission and by courtesy; and, by reason of tbe accumulation of grass, leaves and other inflammable matter upon tbe land appropriated to tbe defendant for right-of-way, fire was transmitted to it from a defective spark-arrester and it ignited, and then tbe fire spread to tbe plaintiff’s land, doing tbe damage complained of. It was not there contended, nor was it a fact, that tbe defendant company bad sold or leas'ed its exclusive right to run trains over tbe road.

Tbe foundation upon which tbe plaintiff’s action rests is tbe case of Logan v. Railroad, 116 N. C., 940, and if tbe doctrine therein laid down be sound law, then bis action must be sustained, and tbe other cases following it, which are its offspring, must stand.

Much is said about tbe_original obligation of tbe lessor, company to tbe public in furnishing trains, providing for tbe safety of passengers, etc., which is said to* be inseparable from tbe grant and tbe exercise of tbe corporate privileges, and from tbe road-bed, right-of-way, station-houses, etc., until tbe Legislature, for tbe sovereign, declares tbe lessor absolved from it. All of which seems to- bave been said and discussed upon general principles based upon tbe numerous decisions of other States, but tbe construction of tbe contract between this State and tbe defendant company, sections 18 and 19 of the charter, seem to bave been smothered and forgotten under tbe weight of so many authorities. No reference is made to tbe power of tbe sovereignty to grant a franchise which may be separated or divided in its exercise and enjoyment between two or more parties or corporations; nor of its power to • grant a delegation of power. Under sections 18 and 19, tbe' grant carried with it tbe right of delegation as to tbe active transportation, without divesting tbe defendant compnay of tbe remaining franchise without which the former could not exist. To my mind, it is clear that the lessee in this case is exclusively responsible for liabilities incurred in the active operation of the road in exercising the “right of transportation” (which they were authorized to lease), whether it arises ex contractu or ex delicto; and that the lessor company is responsible for the liabilities arising from the corpus — the structure and all of its incidents- — which, under the terms of the charter and the franchise therein granted, it is bound to preserve and properly keep for the benefit of the public for its safety while the right of transportation is being exercised.

If there be a single authority cited in Logan’s case, or one cited in the opinion of the Court, to sustain the contention of plaintiff in this case, I am unable to so understand it, except possibly the one single case of Hammon v. Railway, 28 S. C., 401 (on page 404), which cites and relies upon Railway Co. v. Brown, 17 Wall. (84 U. S.), and upon examining the facts and principle therein involved, it will be found not to sustain the decision. I have examined each and every case cited in 1 Spellings on Private Corporations, sec. 135, quoted in Logan’s case as an authority, and I find the facts and principles involved in the decisions to be so different that they fail to sustain the conclusion reached by the Court. Eor instance, I will briefly state the principles decided in some of the cases there cited, as well as some of the cases cited in the opinion of the Court as authority, from which it clearly appears that they do not sustain the decision of the Court: In the case of Railway Co. v. Brown, 17 Wall. (84 U. S.), cited by Eedfield on the Law of Eail-ways (5th. Ed.), Cbap. 22, page 616, and other authors, and so often cited in the opinions of the Courts to which reference has been made, as an authority that the lessor can not divest itself of its liability as a common carrier by. leasing .its road, it expressly appears that the corporation (railway company) had leased its road to two individuals, and that no authority appears to have been given, either by its charter or legislation, and that the injury complained of was committed while it was being operated by the servant (jointly with those of the receiver) of the said lessees, and the rule of principal and agent there obtains.

And the only case I have been able to find which squarely supports Logan’s case is that of Hammon v. Railway Co., 28 S. C., 401, on page 404, which cites the above case (11 Wallace) for its authority, and in it the learned Justice Mc-Iver seems to have accepted the decision of the Court without investigating the facts upon which it was based, and therefore failed to discover the principle upon which the decision was made.

In Bank v. Railway Co., 25 S. C., 216, on page 222, the Court says: “In this case, however, it appears that defendant company (lessor), by its own agent and not its lessee, receipted for the cotton, and hence the contract must be regarded as made directly with defendant company (lessor), though its road may at the time have been operated by the Richmond and Danville Railroad Company, its lessee.”

In Thomas v. Railroad, 101 U. S., 71, the lease was made without authority of its charter or of law, and was ultra vires and void.

In Great Western Railway Co. v. Blake, 7 Hurlstone and Norman, 986, there were two connecting lines, and by arrangement between the two companies the lines were worked together and tickets sold over the whole route and the fares paid by passengers apportioned between them; held, that the company selling the ticket is responsible for negligence and damage done npon and by the connecting line.

In Nuget v. Railroad, 80 Me., 62, defendant company leased for ninety-nine years its railroad, stations, etc., to another company. While being operated by the lessee, one of the lessee’s brakemen was injured, solely caused by a negligently constructed awning upon one of the station-houses. The awning was negligently constructed on account of its proximity to the passing car, and the injury was caused solely thereby; held, that lessor was liable on that account

In Stearns v. R. Co., 46 Me., 95, on p. 117, it there appears that in the statute “authorizing the defendants to lease their road, it was enacted that nothing contained in said act, or in any lease or contract entered into under the authority of the same, should exonerate the said company or the stockholders thereof from any duties or liabilities therein imposed upon them by the charter of said company, or by the general laws of the State. * * * Whatever duties or liabilities therefor were assumed by defendants by the acceptance of their charter, or afterwards rightly imposed upon them by the laws of the State, were at least for the purpose of a remedy, to remain and continue to be obligatory upon them in the same manner and to the same extent as if the lease had not been executed, and the use, possession and management of their property had not been transferred to their lessees.”

In Whitney v. Railroad, 44 Me., 362, 69 Am. Dec., 103, one of the chartered obligations of the defendant was to erect, maintain, etc.,legal and sufficient fences where the road passed through enclosed and improved lands, and in default they are liable for injuries occasioned thereby; held, that it was not released from its obligation by leasing its road. And it was enacted and provided by the Legislature,permitting the transfer,; that “nothing contained in this act, or in any lease or contract that may be entered into under the authority of the same, shall exonerate the said company or the stockholders thereof from any duties or liabilities imposed upon them by the charter of said company, or by the general laws of the State.”

In Railroad v. Dunbar, 20 Ill., 623, the Court says the question before them was a new one. The lease was made without any authority in its charter and without any legislative consent; and the Court says, on page 627: “But we do not undertake to determine whether a railroad may make such a lease as would authorize the lessees to run and use such road or not, as the question is not presented by the record in the case.” A careful review of the case, and of the facts upon which the decision is based, shows clearly that the question therein decided is not involved in this case.

In Singleton v. Railroad, 70 Ga., 464, 48 Am. St. Rep., 574, the lessor company had no grant of power conferred upon it by its charter to lease; the lease was made only with legislative consent. And it will clearly appear that the decision of the Court rests upon the text and head-notes of the authorities relied on, and they are not sustained by a close scratiny of the body of the decision relied upon.

In Railway Co. v. Mayes, 49 Ga., 355, there was no lease, only a permit for another company to run its trains over the road, as was the case of Aycock v. Railroad, supra.

In Railway Co. v. Campbell, 86 Ill., 443, it was the lessee of' a railway company which permitted,, by contract, another company to use its road, and was held liable for its negligent conduct.

In Balsley v. Railway Co., 119 Ill., 68, the lessor was held liable for damages resulting from fire. The lessor permitted dry .grass and weeds to accumulate upon its right-of-way, which took fire from a passing engine of lessee, and was communicated therefrom to plaintiff’s property, which was burned. The same as Aycock’s case, and not applicable.

In Quested v. Railway Co., 127 Mass., 204, the charter of tbe lessor company expressly provided that tbe corporation should be liable for any injury inflicted by tbe carelessness or misconduct of its agents or servants ; held, that a lessee is likewise liable, notwithstanding tbe lease was made under authority of a statute; said statute expressly provided: “But such lease or contract shall not release or exempt said company from any duties, liabilities or restrictions to which it would otherwise be subject.” The Court said: “The effect of this provision is that the defendant has the same liability to compensate persons injured in the operation or management of the road, while the lease is in force, which it would have had if the injury had been sustained while the corporation was managing its own road.”

Braslin v. Railway Co., 145 Mass., 64, is a similar case.

In Brown v. Railway, 27 Mo. App., 394, the statute under which the lease was made provided “that the lessor shall be' and remain liable for the acts of the lessee” (page 400).

In Charlotte v. Railway Co., 26 Neb., on page 166, the .Court says: “We are unable to find any proof in the record as to the capacity in which the Union Pacific Railway Company had possession of defendant’s road — -if it had such possession — whether of lessee, owner, or by a traffic arrangement.”

In Abbott v. Railway Co., 80 N. Y., 27, 36 Am. Rep., 572, the lease was made without authority of charter or legislative special authority. Therefore the lessee was held to be the agent of thé corporation.

In Cogswell v. Railway Co., 5 Wash., 46, the appellant was 'the owner of the railroad bed, track, cars, etc., and had contracted with a construction company, in consideration od equipping, etc., the road, that it should operate the road satisfactorily for at least ten days before it could require payment for its equipments; and the cause of action accrued during that time, and the corporation held liable.

In Lakin v. Railway Co., 13 Oregon, 436, 57 Am. Rep., 25, tbe Court says: “It will be observed by tbe answer of defendant tbat tbe Oregon Pacific Railroad Company bad not leased tbe defendant’s road, but was engaged under a contract in building and constructing it, and at tbe time tbe alleged accident occurred was running and operating said road for tbe purpose of traffic in tbe carriage of passengers.”

In Railway Co. v. Underwood, 67 Texas, on page 593, tbe Court says: “Tbe proposition tbat tbe owner is absolved from liability when tbe lease is duly authorized by law is not to be disputed, but tbat without a statute conferring tbat power, a railroad company can not lawfully lease and transfer tbe control of its road, is settled by tbe cases we have previously cited. We have been referred to no general law of our Legislature authorizing such a lease. If any private act existed, tbe defendant should have pleaded it, so as to show tbat tbe lease was lawfully made. This not having been done, we conclude tbat tbe leases were not warranted by law.”

Railway Co. v. Morris, 68 Texas, 49, is to tbe same effect.

In Miller v. Railway Co., 3 N. Y., Supp., 245: By tbe terms of tbe lease, it was provided tbat tbe lessor would, from time to time, upon request of tbe lessee, pay for locomotives, etc., and for construction of extensions, etc., and for all other things, work or works, which tbe lessee may desire to have done; and tbe lessee erected an embankment causing tbe injury complained of — damage to adjoining land — for which tbe lessor paid, thereby ratifying tbe act, and received tbe benefits of; held, lessor to be liable.

In Naglee v. Railway Co., 83 Va., 707, tbe liability occurred while tbe road was being run by trustees selected by tbe corporation to do so. To tbe same effect is Acker v. Railway Co., 84 Va., 648.

In Stella v. Railway Co., 49 Wis., 609, tbe relationship of lessor and lessee was not involved. Tbe action grew out of defendant’s running its train on a private spur-track.

In Nelson v. Railway Co., 26 Vt., 717, page 721, tbe Court bolds tbe lessor responsible for tbe acts and torts of tbe lessee solely upon tbe principle that tbe lessee was tbe general agent of tbe lessor. Tbe lease seems to bave been executed without legislative authority, and tbe decision is based upon tbe principle of pricipal and agent.

In Railroad v. Peyton, 106 Ill., 534, tbe Chicago and Western Indiana Kailroad Company permitted tbe W. St. L. and P. Eailway Co., by a lease or agreement, to run its trains over a part of tbe former’s track, and by this agreement tbe O. and W. I. E. Co. retained the control of tbe passenger trains of tbe W. St. L. and P. Ey. Co. over that portion of its track. By it, tbe servants of tbe lessor directed and controlled tbe servants and trains of tbe lessee in coming and going over tbe track. When tbe lessee “was permitted to perform that service, it was under tbe direction of lessor’s yardmaster — this being tbe legal relatipn of tbe two companies by tbe terms of tbe lease or agreement entered into by them.” Tbe train which did tbe injury complained of was under tbe direction of tbe yardmaster (page* 588). So tbe case is not an authority in our case.

It is contended that tbe contract of indemnity provided ■ in tbe lease was a recognition of Logan’s case, and doubtless was to some extent, but it does not-estop defendant company from contesting tbe principle again in the Courts.

It is urged by counsel that Logan’s case has been repeatedly quoted as an authority by this Court, and should therefore stand. If wrong, why? No interest or vested right will be disturbed by overruling it. If it be inconsistent with tbe chartered rights of tbe defendant company, it is better to return to a sound principle than to continue in error.

While I shall bave to yield to tbe decision of tbe Court, yet I deem it my privilege to state my views upon tbe sub-jeet, now tbat the question is again presented and the Court is called upon to' review and reaffirm or overrule the principle decided in Logan’s case. In that case the Court spoke of a conflict between the decisions of different jurisdictions, and quoted the text of authors compiling the many decisions; but I have chosen rather to refer to the decisions themselves, and, in doing so, I am led to the conclusion that their conflict with the principles in the case at bar is less real than apparent.

I deem it unnecessary .to further encumber the record by a discussion of the merits involved.