131 N.C. 455 | N.C. | 1902
Lead Opinion
This action was brought by the plaintiff to recover damages for personal injuries sustained by him while in the service of the Southern Bailway Company, the lessee of the defendant, the Atlanta and Charlotte Air Line
At tire close of the evidence “the defendant moved for a non-suit upon the ground, as it appeared from the evidence, that this action was prosecuted against the defendant, the Atlanta and Charlotte Railway Company, the lessor, for the tort committed by tire Southern Railway Company, its lessee,
Each and all of the exceptions, with the exception of the one to the overriding of the motion for non-suit, was abandoned by the counsel of the defendant in this Court.
The plaintiff contends that the Court properly overruled the motion for nonsuit, for the reason that the defendant did not make the motion at the proper time, that is, when the plaintiff had concluded his evidence, and that when it was made, it was after the defendant had introduced its evidence, on the execution of the lease, which was not permissible, a defendant not being allowed to move to dismiss upon testimony introduced by himself. The contention is based on the provision of the Act of 1897, Chap. 109, as amended by the Act of 1899, Chap. 131. The amendment of 1899 has been repealed by the subsequent amendment of 1901, Chap. 594, which latter amendment is substituted for the former one, but, for the purposes' of this discussion, that is immaterial.
The purpose of the motion was not to procure a ruling by the Court upon the right of the defendant to lease its road to the Southern Railway Company, for that had been admitted in the answer; but to have a ruling that the whole evidence showed that the plaintiff was injured while in the service of the lessee, and that it was not legally sufficient to,, establish the plaintiffs claim as against the defendant. If the defendant had proceeded under the statutory provisions above referred to, there could he no doubt that the question would have been properly raised. But was the defendant confined to the procedure marked out in those statutes % . The motion was substantially “a demurrer to the evidence,” and that practice is recognized in many of the States, and always has been with us. The purpose of the practice is to present to the Court, instead of submitting the evidence to the jury,
But his Honor was correct in his refusing to sustain the demurrer. We will not attempt to add anything further to what has been said by this Court on the responsibility of railroad companies who are lessors, for the negligent acts of their lessees. They are both liable. In Logan v. N. C. Railroad Co., 116 N. C., 940, the matter was thoroughly discussed- and decided, and the opinion has been affirmed in numerous cases since. Tillett v. Railroad, 118 N. C., 1031; Benton v. Railroad, 122 N. C., 1007; Perry v. Railroad, 128 N. C., 471; Harden v. Railroad, 129 N. C., 354; 55 L. R. A., 784; 85 Am. St. Rep., 747.
No Error.
Dissenting Opinion
dissenting. I do not concur in that part of the opinion of the Court which holds that the defendant lessor company is responsible for the torts committed by its lessee, the Southern Railway Company.
Under the powers conferred upon defendant company in its charter, it bad the right to lease, and in exercising the same did lease, its railroad and all its property, rights and franchises (except the franchise to be and exist as a corporation) to the Southern Railway Company; and the latter, the Southern Railway Company, was, as such lessee, operating the same on its own account and was the employer of the plaintiff at the time when the alleged injury occurred, and there was no contraetoral relation existing between the plaintiff and defendant. In no jurisdiction (except our own) is it held that the lessor company is liable for the contracts or torts of the lessee company, except, 1st, when the lease is made without legal license or authority (in which case the lessee is deemed to be the agent of the lessor) ; 2d, when the license or authority to lease is coupled with an express provision that the lessor shall be and remain liable for the acts of its lessee.
In the case at bar, the lease was made under express authority granted in the charter of the lessor company, and there is no provision that it shall be liable for the contracts or torts of its lessee.
This doctrine was first held by this Court in Logan v. Railroad Co., 116 N. C., 904, and was approved in a number of cases thereafter. But when it was again presented to this Court for review (for the first time after I became a member of this Court), in Harden v. Railroad Co., and after a thorough study of the principle involved and examination of the decisions bearing upon the question, I became Satisfied that it was unsound in law, and thus gave a full expression of my views in my dissenting opinion, to which I now refer, without a re-discussion of the subject.