143 Ind. 23 | Ind. | 1895
The distinct theory of the appellee’s complaint was that the appellant was the owner and operator of a line of railway, in the operation of which it employed him as a brakeman; that in the course of his
“7. Are there two separate and distinct railroad corporations, one called the Baltimore and Ohio and Chicago Railroad Company, and the other the Baltimore and Ohio Railroad Company ? Ans. Yes.
“9. Did one of said railroad companies operate, own and control the train of cars by which the plaintiff was
“10. Did the Baltimore, and Ohio and Chicago Railroad Company own, operate or control the train of cars by which the plaintiff was injured? Ans. No.
“11. What railroad company, if any, paid the plaintiff for his labor ? Ans. The Baltimore and Ohio Railroad Company.”
The thirteenth, fourteenth and fifteenth answers find that the trainmaster of the Baltimore and Ohio Railroad Company employed the appellee, and that, when injured, he was in the service of that company. Reducing these special answers to their exact import, they find that there were two distinct corporations, the appellant and the Baltimore and Ohio Railroad Company; that the latter company, and not the appellant, owned, controlled and operated the train by which the appellee was injured, and that the appellee was employed by, was serving, and was paid by the latter company. Here is an apparent conflict. The general verdict finds, presumptively, that the appellant was the master of the appellee, and, as such, owed him the duty of protecting him against its negligence in supplying defective appliances and reckless or unskilled co-employes. This was, as we have shown, the theory of the action, and the issue submitted. But thé jury find specially that the appellant was not the master of the appellee, and that another owed the duty charged and found generally against the appellant. Can this conflict be reconciled upon any reasonable presumption, consistent with the issues? The appellee’s counsel urge several supposed contingencies, in which the facts, specially found, would not stand in conflict with the-general verdict. They say: “Our contention is that, unless the special findings show by what right, or
Here we have no such question. Whatever the attitude of the operating company, that also is the attitude of the appellee, since he was an operative of the operating company, and the appellants so far from any liability owed him no duty whatever, unless possibly, that of doing him no willful injury. By the answers to interrogatories we learn that the companies were distinct; that the appellant was not the appellee’s master; that the Baltimore and Ohio Railroad Company employed him, paid him, and owned, controlled and operated the train that injured him. If the latter company, operated
This conclusion is reached by the ordinary rule, but have we here an exception to the ordinary rule ? This appellee’s contention has strong support in authority if it has application to the case in hand. The rule so contended for and its reason are tersely stated in 19 Am. and Eng. Ency. of Law, p. 899, note-2, as follows: “The lessor, in consideration of the grant by its charter of extraordinary rights and privileges, has assumed a quasi public character, and becomes subject to unusual obligations towards the public, and public policy requires that it should not be allowed to release itself therefrom, by transferring its rights and franchises to a lessee, without express legislative consent.” Many cases are cited in support of the text. In all of the. cases and text writings we have examined, the rule has been stated with inference to the obligations of the charter company to the public, and which are created by the enactments of State Legislatures, or by the franchise, as where some duty is enjoined upon such company by the charter or laws of the State as to the maintenance of a right of way, the regulation of speed of trains, the protection of travelers upon highways crossing the railway, the charges as a common carrier of passengers or freight, the protection of live stock by fences along the line of way, and other obligations to the public, not involving a mere private contractual relation. With this rule we have no disagreement, but we deny its application to the case in hand. Our researches have discovered but two cases where the owning company was sought to be made liable for an injury to the servant of the operat
In the case of the East Line, etc., R. W. Co. v. Culberson, 72 Texas 375 (3 L. R. A. 567), 38 Am. and Eng. R. Cas. 225, the conductor of the operating company’s train was injured by the alleged negligence of such company in supplying a defective engine, and employing a careless engineer.
The suit was against the owning company, and, at the trial, it offered to prove that the conductor was in the employ of another company at the time, using defendant’s railway. The offer was excluded. There Avas no offer to prove that the operating company was a lessee by virtue of any statutory authority, and in considering the question, the court .treated the operating company as possessing no valid lease. The court stated the question presented in these words: “We have then the question of the right of a servant of a railway company operating without authority of statute a road belonging to another corporation, to recover of the owner damages for personal injuries resulting to him in the course of his employment through the negligence of his employer, or of its officers or agents. ” In the course of the opinion it was said :
“There have been numerous decisions in other States holding the lessor liable when the lease is unauthorized for injuries to live-stock and to persons crossing the track, caused by the negligence of its lessees. So that it may now be considered the accepted and settled doctrine, that in all cases where one railroad company is operating trains upon the road of another without authority of law, the owner of the road remains responsible for the discharge of its duties to the public and becomes liable for injuries resulting from the lessee’s failure to perform their duties. The lessor by accepting
“In the case proposed to be made by the evidence offered it seems to us that the liability of the deceased’s employer would have been precisely the same on the defendant’s road as if the train had been running upon its own at the time of the accident. The act of the Missouri, Kansas & Texas Co. in operating the road without a license from the Legislature, if such was the fact, was merely illegal in the sense that it was unauthorized, and the object in holding the lessor responsible in such a case is certainly not to impose a mulct or fine by way of punishment. The reason for the rule is the protection of the public who need the protection. The passenger and the shipper of goods have no option, but must avail themselves of the services of the lessees, whether the lease is authorized or not. The law will not permit the owner of the road to shirk its duty to them by turning over its road to another company; nor will it permit it to deny its liability when it has allowed such other company without authority of law negligently to injure wayfarers over the track or property along the line. There is no privity between the persons injured in such a case and the operating company.' It is not so with an employe who voluntarily enters the service of the latter company with a knowledge of the facts and participates knowingly in the wrong, if wrong it be. Where in similar cases a recovery has been permitted against a lessor, it has usually been allowed upon various considerations of public policy: First, because the franchises granted are in the nature of a personal trust, and sound policy demands, so far as the general public is concerned, that the corporation receiving the grant should be held responsible for the proper execution of the powers granted; and, second, for the reason that
The case of the Macon, etc., R. R. Co. v. Mayes, 49 Ga. 355, is cited by someof the text writers as in conflict with the last cited case. There the president of the company was also a member of a construction company engaged in constructing the road. He required the plaintiff, a servant of the latter company, to act' as fireman on a locomotive which was to carry him tó a distant station. Rn route the locomotive collided with a train carrying the officers of the railway company in the opposite direction. In the collision the plaintiff was injured and he sued the railroad company. The court held that the railroad company was negligent in running the official train at high speed over a new line without schedule
The answers to interrogatories preclude any possible joint or servient relations between the operating company and the appellant. If the Baltimore and Ohio Railroad Company operated under a lease, a presumption of the invalidity of the lease would not, as we have shown, affect the question, while, if that company was a licensee, or a trespasser, the liability of the appellant would be but the further removed.
It is urged by one of the appellee’s learned counsel
In our opinion, the special answers of the jury were