City of Raleigh v. North Carolina Railroad
40 S.E. 2
N.C.
1901
Check Treatment
Clare, J.

Hattie N. Dillon was injured by defendant’s lessee, tbe Richmond and Danville Railroad Company, in •causing an obstruction on the street of tbe city of Raleigh where tbe defendant’s track crosses it, which obstruction was continued by defendant’s present lessee up to tbe time of tbe .aforesaid injury. When the aforesaid obstruction was placed there, tbe Street Commissioner of plaintiff told Adams, who was acting for defendant’s lessee aforesaid in placing tbe obstruction, that it was dangerous, and reported tbe fact to tbe Chairman of tbe Street Committee of tbe Board of Aider-men of tbe city, who bad tbe same conversation with Adams.

In an action by Hattie N. Dillon, she recovered judgment against tbe city, which was affirmed on appeal, Dillon *266 v. Raleigh, 124 N. C., 184, in. wbicb it was held that th& party causing suck obstruction, and tbe city, by permitting it, became liable jointly for tbe iort; that tbe party injured might sue either, and tbe question of primary or secondary liability is for them to adjust between themselves. The-city of Raleigh, upon being sued, at once notified tbe North Carolina Railroad Company of tbe action and its nature,, and invited it to join and aid to defend tbe action, wbicb tbe company declined to do. This action is to recover from, it tbe sum paid by tbe city for tbe judgment and costs in. tbe aforesaid action.

Tbe point now raised has been recently and fully discussed and determined in Brown v. Louisburg, 126 N.C., 701, 18 Am., St. Rep., 611. This case is stronger for tbe city, in that here it ■ did make objection to tbe'placing of the. obstruction. The-plaintiff and defendant did not concur in creating tbe tort, and are not co-delinquents. Tbe defendant is liable primarily as-tbe actor in placing tbe obstruction, and tbe city secondarily for not causing its removal.

Tbe point that tbe defendant is liable for tbe acts of its. lessee is settled by Aycock v. Railroad, 89 N. C., 330; Logan v. Railroad, 116 N. C., 940, and a dozen or more cases affirming tbe same. Upon tbe facts found, judgment was properly entered against the defendant.

No Error.