*1 601 1904. TEEM, SPRING- 0.] v. Railroad, Co. Haerill to rule after amendment if bad tried tbe

but tbe case been thereby. would not be cured 21 tbe error we have out pointed where tbe Judge amendment not case Tbe would apply tbe of admission below tbe at time tbe should instruct it as only tbe evidence should consider of that they corrobo- if be contradiction, of afterwards for rative, purposes with tbe sub- should marshal that evidence along bis charge he makes allu- stantive evidence in tbe case. If afterwards tbe must sion to such bis charge jury, evidence call attention to its nature. again

Eor error out there must be tbe pointed Trial.

New Walker,

Clark, in result. J., J., concur C. v. CO.

HARRILL RAILROAD 27, 1904).

(Filed May Jury. Partnership—Negligence—Questions for RAILROADS — causing company wrongfully for against a railroad In an action another it and engineer, whether the deatli an on which road partners operating part road were jury. submitted to properly killed deceased Partnerships—Negligence—Contracts. 2. RAILROADS — another cor- jointly a road with corporation operating

A railroad employees, as a natural injury poration responsible for he is a a firm of which person for the liabilities would be member. Assttmption Risk.

3. CONTRIBUTORY NEGLIGENCE — killing wrongfully against a railroad In this action assumption risk engineer the instructions contributory negligence are correct. MONTGOMERY,J., dissenting. IN THE SUPREME COURT. Railroad

Haeriix v. *2 R. N. ITarrill tbe South Carolina and by against ActioN B. beard Georgia Railroad by Company, Judge F. and a of Long Term, 1901, Supe- at tbe jury, September rior Court of Rutherford Eróm a for County. judgment tbe defendant plaintiff tbe appealed. Busbee,

E. J. and & for Justice Busbee the plaintiff. Sinclair, Hardin, J. W. W. P. S. Hart and N. tbe G. for defendant. J. bis intestate, The Jake plaintiff alleged

Connor, on before Metcalf, was, 1901, and 20, by April employed tbe defendant as a and day locomotive was on said engineer, in an cars from Blacks- engaged engine running carrying S. N. C. burg, C., Marion, That while so engaged killed was tbe of a falling trestle, or bridge being part of defendant’s track in over Buffalo Creek South Carolina. said That trestle said was on reason of defendant’s day, by in a negligence, defective condition and dangerous reason thereof tbe death of bis gave way fell, causing - intestate. Defendant denied that intestate was plaintiff’s on tbe named or for day the defendant employed by engaged a train from tbe pulling named tbe points complaint. Tbe defendant also denied tbe of allegation negligence, averred that intestate plaintiff’s assumed tbe risk of crossing trestle tbe and was of At guilty contributory negligence. tbe conclusion of tbe testimony defendant moved plaintiff’s for judgment nonsuit that: 1. Tbe plaintiff has failed to show that tbe defendant South tbe Carolina and company, Extension Railroad Carolina, North ran its train, in law to tbe built, maintain required over trestle Buffalo Creek or that plaintiff’s intestate defendant employed company. 2. That there was no evidence of on tbe negligence part TEEM, 1904. N. 0.] demonstrated that evidence

defendant. 3. That plaintiff’s his and that he came to fault, his intestate was not without refused The motion was death his own negligence. the conclusion same at renewed, upon grounds, defendant ex- ancl refused

the entire testimony, again cepted. issues the jury: Court the following submitted defendant sent by

“Was intestate plaintiff’s employed 20, purpose April engineer toC., S. from Blacksburg, attached cars engine in the trestle,.as Creek alleged *3 N. over Buffalo Marion, C., act killed the wrongful 2. intestate “Was complaint?” “Did intes 3. as defendant, alleged?” negligence his death?” his own contribute tate, negligence, ?” to recover if is entitled “What damage, any, plaintiff the relation which plain- to the controversy regard defendant presented tiff’s intestate bore to the nonsuit, the motion to the first ground assigned defendant. for instruction asked by certain special prayers the lies at of this and settlement .An examination no has introduced If the threshold of the case. plaintiff inwas his intestate the evidence to sustain allegation the and that by company, of the defendant employment the to run his engine he was terms of such required employment killed, he Creek on the day over and across Buffalo tes- allowed. The have been motion for nonsuit should rela- and its of the defendant to the status regard timony railroad owning tion to the South Carolina corporation To unsatisfactory. North Carolina line is certainly to the corporation status of the defendant understand the correctly as concisely possible, to state, it becomes necessary certain, The Gen- other corporations. and relation to history 1887, chapter at its session State, eral of this Assembly and Chicago Cincinnati Charleston, consolidated 77, IN SUPREME COUNT. THE Railroad Co. Railroad a South Company, Carolina corporation, with two North Carolina corporations, C. & C. C., creating Ry. a Co., North Carolina as well as a South Carolina corpora tion, a railroad from operating Marion, C., N. to Blacks S. C. burg, railroad, This all with of its property rights, franchises, etc., both States, was sold under foreclosure in the proceedings Circuit Court of the States, United was, by purchaser, under the incorporated corporate Railroad, 119 name of O. R. & C. v. Ry. Bradley C., 918, Appendix.

This last-named executed certain corporation mortgages which foreclosed were to a decree of the pursuant Circuit Court of the United States for the Western District of North and the property franchises, rights, etc., purchased Samuel Hunt and others. Pursuant sec- tions 698 and 2005 of The Code, formed purchasers a new corporation under the name South Carolina of North Caro- lina. At the session of the General of 1899, Pub- Assembly lic Laws, 35, the said chapter com- Legislature incorporated under said it all of pany name, conferring upon rights, powers franchises and privileges, immunities that at *4 time to any Cincinnati and belonged Charleston, Chicago or Ohio and Company, Railway Charleston Carolina, North or to the Ohio River Charleston Railroad or to or all of their Company, pre- any decessors. The said authorized was corporation operate and maintain a railroad from said line on the line county of Cleveland to the town of Marion in the State County of North and was authorized empowered or lease assign and to franchises, rights property consolidate with other any under corporation organized laws other said State. manner which consolidation shall made, the evidence thereof, fully N. 1904. 0.]

Harbill Railroad Co. set forth in section 8 of 35 of said which was chapter act, ratified 31, On the 18th of January 1898, August, Carolina and Extension Railroad Com Georgia of South Carolina was pany chartered, which charter was confirmed of South Carolina on Legislature the first 1899. The same day March, persons, P. J. Sin except are named as clair, directors of the South Carolina corpo ration. The Constitution of South Carolina forbids any. corporation to do business foreign there without the consent Legislature that State. There noAvas evidence that said corporation had consolidated in accordance with the provisions of section 35, the Laws of 1899. chapter There was no other line of road from N. Marion, Rutherford C., through and Cleveland counties to the South Carolina line than the one which extends to South Carolina and across to It in evidence Blacksburg. appeared that the intestate was the South Carolina employed by and Georgia This was shown Railway Company. by vouchers and checks issued to the said intestate drawn upon National Union Rock Bank, Hill, C., S. The National Bank of Gaffney, S. Gaffney, C., Merchants Planters Bank, S. or B. Blanton Gaffney, C., & Co., Bankers, Shelby, N. C. There was also -evidence to show that the tending run of said intestate was from S. Blacksburg, 0., Marion, had C., return; that he been this run for making about two he that years; same working this time." His widow testified that he was during working- road which in North Carolina from trains operated Marion the line of what is known as the “Three 0 along he had road”; the rule book and time tables issu.ed the South Carolina Extension Railroad Com It was evidence on the of the defendant that pany. part Thomas A. Smith his section-master, having *5 of the road from charge portion Blacksburg, IN THE SUENEME COUNT.

Hareiix /Railroad Co. S. C., to N. C. Earle, It was further in on evidence psrt of said witness that he had been section-master of said road or ten eight years; that three miles of his section was in North Carolina and three in South Carolina, including Buffalo Creek; it was under one and that management he was one employed by that his company; cov employment ered the time of death of intestate. plaintiff’s Another wit ness for the defendant testified that he was employed said road and did not know he was for but one com working It pany. was further in evidence AY.M. Wilkie that on the 20th of April, 1901, he was day employed repairing cars in the at shop South Carolina and Blacksburg Georgia Extension Bailroad that he had worked Company; on trestles from S. toC., Blacksburg, Brushy Creek, C.; that Mr. Mr. Tripp superintendent, Maxwell was super visor of the Mr. track, Nutting supervisor and trestles. bridges There was no evidence the existence corporation the name of and South Carolina Extension Bailroad Company.

The defendant denies “on information and belief” many of the of the allegations to the relation complaint respect intestate bore to the Eor plaintiff’s instance, corporation. the fifth of the “That on the morn- allegation complaint is, the said intestate was sent out ing April 20, 1901, defendant from O., S. on his run with Blacksburg, regular a train cars and consisting tender, engine freight is informed and coach, believes.” passenger plaintiff answer “It denies on information and belief the state- -is, ment of fifth facts It paragraph complaint.” whether this answer to doubtful this material very very raised an issue. The Code, section allegation requires the answer to either each deny allegation “any knowledge or information thereof sufficient to form a 'belief.” However no was raised in to it be, may regard *6 TEEM, 607 C.] V. K.A1XJROAD

HARRILL and we plaintiff, notice it the trend of' only indicating the defendant’s answer to the as to its rela- vital tion to the The employment plaintiff’s intestate.

entire and anomalous testimony presents very singular spectacle a railroad track, built originally belonging to a corporation chartered the General of two Assembly States, a both States continuous operating line, sold and the two com- being purchasers incorporating panies of the same that one is “of South Caro- name, excent lina” and other “of North Carolina.” roads The two operated are who the name of “The by persons adopt Carolina and Extension Railroad There Georgia Company.” is no evidence of consolidation of the two any corporations, or of lease of the of one track to the other.

The two roads are of officers, common set operated by section assigned one the section-masters one-half being in each of said States. One one superintendent, inspector cars, and, one set of The checks general, employees. given intestate indicate that road is plaintiff’s from a common operated There is other testi- treasury. to the same evidence that effect. There no more

mony intestate was the South Carolina plaintiff’s employed by than the North Carolina If the defendant’s corporation. sustained,

contention be we have the anomalous condition no head, railroad with employees responsible operating them, no one sustained responsible injuries of contracts. no one to the for breach responsible public of this condition. There must be some explanation in a the defendant “to plaintiff produce served notice upon testimony, would be competent that it form, legal showing the charter of the South Carolina Georgia that it is plain- states Company, alleged and that there tiff no such charter that there is legal and Geor- of the South Carolina at consolidation attempt THE IN SUPREME COURT: Harbill Railroad Co. Extension Railroad of South. Carolina gia tbe South Carolina Extension Railroad Com- and. effect of of North which did not have the pany *7 a and the two former creating extinguishing corporations former, two new made a of the one, but which partnership did and style which business under the name it being Railroad Company, Carolina and Extension Georgia no was There and not corporation.” partnership theory to demand. There is but one response possible this testi- in the manner of these roads which the upon operation and defendant can fied to the witnesses for both plaintiff was testi- that there The contends explained. be plaintiff to show to submitted to the jury tending competent mony said and operating that the two were corporations law, in which, under an agreement roads arrangement of the South Caro- the name constituted them partners and asked Railroad Company, and lina Georgia defendant to the jury, Honor submit this question his sustain such evidence to was no for that there objecting non- the motion for refused Honor having instruction. His the exception to the jury, suit submitted the ques- to the jury-raises and instruction to his refusal Among it. evidence to sustain whether there was any tion “There the jury: said to his Honor instructions, other sued, which is show the corporation some evidence tending North Caro- the Legislature and which was chartered in 1900 1899, Carolina in North a railroad operated lina, that time road at over this and that trains operated 1901, Creek daily. over Buffalo South Carolina into passed her husband recalls, that Court as the testified, Mrs. Metcalf the trains so operating the company employed by such employee he was required and that State, this as. and over Blacksburg on to of his duty go the performance case in this from evidence If find you trestle. SPRING- N. 0.] Railroad Oo. v. the defendant was employed by intestate plaintiff’s

that the Creek, at Buffalo the trestle over required go ” ‘Yes.’ first issue will answer the South Carolina, yon will “The jury instruction. defendant to this excepted find from the greater if 'Yes’ they answer first issue and Georgia Carolina that the South of the evidence weight and the Carolina North Extension Railroad Company of South Extension Railroad South Carolina Carolina the South style under the name or by jointly Extension Railroad Company, and Georgia it and made intestate mutual consent employed plaintiff’s toC., Marion, from to run his as engineer duty trains April 20, operated S. Blacksburg, C., Blacksburg from Marion to leading over railroad *8 a and common set of officers a common with company, one and Exten Carolina when the said South treasurer, accord not had been incorporated sion Railroad Company of no consolidation and there had been legal to law, ing two companies.” the said Mills v. Mount Rocky

It is held this Court where two Co., that 56 Am. St. Rep., 119 N. C., 693, to themselves have among roads agreed or more connecting name under the their business systems conduct through and advertised to the public, and have so them, adopted by is each road which that contracted with persons, so have of liable for the negligence is to such agreement party con that certain In case it appeared other roads. that the to receive entered into agreement roads had necting that of lading, they bill under through transmit freight Coast Dis of the “Atlantic and style the name adopted For pf name. in .that issued lading bills patch,” it was held and deliver freight to promptly carry failure be sued such might roads to agreement either that the question, says: after Court, discussing for damages.

135-39 IN THE SUPREME COUNT. Railroad Co. -

“Upon examination and reflection we are tbe opinion that the defendants and their lines are connecting jointly each for liable, on the others, ns, contract before that are also entitled to same they immunity privi- leges as if the contract had been made the individual sought said contract, under that charged that say, are they business as engaged partners name the ‘Atlantic Coast are still Dispatch.’ They common none the carriers, less so because have certain they stipulations. to conduct the ‘All- Having jointly agreed Nail East Line’ business under Freight the name above stated between the terminal of their points connections North and South, and so informed the and so having public contracted with the their true plaintiff, character is fixed by the law to the nature their business, according such character cannot be thrown aside declaration in contract in relation liabilities attach- consequences thereto.” The Court ing again says: “Taking notice, we are do, at the numerous liberty transportation our lines in with each other, constitu- country, connecting continuous lines between are ting localities, fac- important tors in the commercial life readily we can country, see that if the to a should have to distant shipper go State and find as best he can the enforce negligent party his him then trouble against there, expense remedy *9 would in On the cases be ruinous. car- many contrary, in a like rier’s case would remedy easy present The whole matter is this: The defendants their speedy. in a in the manner associates have business public engaged described for mutual convenience, attempted benefit name to avoid some legal consequences adopting fancy on the incurred for limitations liabilities by stipulating in such in exercise of their business.” privileges were if two natural found persons It would seem clear rhat O.] tbeir common in using those jointly, property permitting tbe active control and of it to make management contracts, collect for its use and hold themselves out to the moneys as public authorized to so use to it, the as whether question such use was the result of some agreement partnership would be submitted to It is difficult to conceive that jury.

the president and directors of the two would so corporations far their abdicate and fail their duties powers perform in respect to the and franchises as to property permit strang- ers without to assume control of authority it, ser- employ vants it, assume agents operate duties responsible all and, to do such public, short, to the things respect as the were authorized to do. property corporations This will be the condition with which we are confronted unless those who the name and of the South style Carolina and Georgia Extension Railroad have leased from the or are property corporations, it as their operating In view of the entire property. evidence, we think that his Honor submitted the to the properly It jury.

well known as a of the of this part history that rail- country road do form companies traffic and passenger arrangements and otherwise their operate property jointly their com- mon benefit. this is done virtue of Usually special per- mission granted by Legislatures different States.

If it be done without such and is ultra vires authority, between the and the corporations public, could not they with whom had formed escape liability persons they con- tractual reason relations thereof. It does not appear South Carolina and Railroad Com- is a or consists of more than a pany legal entity anything and other corps superintendents, section-masters, engineers railroad. such a persons employed operating Surely not stand to the front mythical personality may prevent real hold owners of the upon the Court property laying *10 612 IN THE SUPREME COURT. v. Railroad

Harbill and fix thereof, as the have real and, jury found, operators them with fox of contracts. It would breach ing liability ear and to the but the to the it breaking hope keeping promise to or his that the to say engineer personal representative South Carolina and Extension Railroad Company alone for a defective condition of the responsible bridge by Questions which he lost his life. somewhat analagous Court, uniformly this have come before the and it has been held that the is the tribunal to pass upon jury proper In ascertain real and fix real facts responsibility. Co., v. Railroad 8 M. & W., case of Muschamp of the defendant was as to the question presented liability lines. for over its own and other loss articles shipped J., Lord C. said: “The whole matter is therefore Abinger, determine what the contract was question jury Co., on the before In v. Railroad evidence them.” Bradford 7 Rich. 62 Am. the Court held that L., 201, Dec., 411, In such to determine. jury cases it-was Railroad, v. 59 Am. the Court Dec., 447, Hart N. Y., 37, said: “I am satisfied from this evidence that the refusal The Court to nonsuit the plaintiff right. Judge it was that it was for them to whether say charged that the defendant received the proved baggage agents and on of the it to the decision agreed Troy, carry all motion for a after the evidence nonsuit, given, left to the jury. Court stated it was a matter to be and in the refusal in the charge Court was both right, it was to submit nonsuit. There were facts which proper of evi were the judges weight to the who jury, proper have so to have been error to refused and it would dence, them.” submit in the matter was cor- think that his Honor’s ruling

We instructions, rect. The found, jury having with the South Oar- was, the defendant corporation together *11 613 0.] Hajrrill v. Oo.

olina of course it tbe road corporation, jointly, operating em- becomes for tbe sustained responsible by injury a would in tbe same manner natural ployee person for be was a mem- tbe liabilities of a of wbicb partnership ber. bis Honor’s We bave examined carefully charge upon tbe second no issue find error therein.

Tbe contention is made tbe principal upon question In risk” and “assumption contributory negligence. thereto it is conceded that the law of South Carolina

respect Mr. D. W. resid- prevails. Robinson, practicing attorney, in in was examined as a witness Carolina, ing regard law to tbe of that after State, regard testifying Constitution, section was asked tbe VIII, Article tbe “If tbe should find that tbe engineer following question: of a a railroad locomotive employed by company, engine a train on tbe road of said while across trestle had in tbe of his as such employee, company discharge duty of some lost his life tbe trestle account way giving by defect in tbe and tbe trestle, falling through by engine would tbe trestle; this, down of the said breaking liable render the railroad laws of South Carolina, company of deceased for in an action the personal representative by sir.” “Under “Yes, for such death?” Ans. damages a railroad defense of South would the Carolina, by laws of tbe falling reason to an action company damages and the track consequent of a trestle tbe railroad along knew tbe danger- death of tbe that tbe engineer engineer, it, to know bad tbe trestle or opportunity ous condition of not?” If not, why railroad anything? avail tbe and assump- of knowledge tbe defense Ans. “I do not think defendant, avail tbe kind would tion of risk in a case of this of South of tbe Constitution because the provision avail, of no makes this defense section 15, IX, Article this provision placed upon to be tbe construction this seems IN THE SUPREME COURT. IíarRill Railroad Co. tbe courts of South Carolina.” witness (The thereupon cites a number of cases decided Court of Supreme that State and : “Rut if case is proceeds this not cov say) ered I the Constitution which have above provision then quoted, the law it, as construed applicable is State, that the whether or not the to be party *12 deemed to have assumed risk from the of the knowledge or defective dangerous of the character machin appliances, ery, which he etc., uses, is The jury. cases cited cover this doctrine.” already The witness was examined in to the law of regard South fully Carolina, upon cross-examination said: of contributory “Any degree this as term is negligence, used the Court of Supreme South Carolina, will defeat a recov properly understood, ery. The of defined meaning as contributory negligence, the Court Supreme of South is that kind of of negligence which is a plaintiff direct proximate cause of the injury combining with the concurring defendant’s in the negligence same matter causing injury. Unless it is the direct is cause, it proximate not within the of contributory the term negligence meaning used of Supreme Court dis Carolina. The tinctions and doctrines to a applicable proper understanding will be found in Bodie v. contributory negligence Rail road (S. 39 S. above C.), E., referred to.” His Honor read to the jury constitutional said: “If provision this trestle was in its or in dangerous other construction, manner, alleged and if the defendant complaint, this and knew company required permitted engineers performance in the duties of their employment over then I pass that such would it, engineers charge you not be barred of their case of to them recovery injury We because knew the trestle was thus defective.” think they In this there was evidence to sustain instruction. regard 0.] the issue of bis Honor contributory negligence, charged as follows: in South Carolina “Contributory negligence does not to the use railroad com apply hy employee railroad defective of such when the pany ways company knew the were and the defective, company ways employee it to use in the required such ways performance his and when there is one manner or method of duty, but and the it. same, so using employee injured using An of a railroad hold his cannot employee employer liable his acts not in obedience to his done, wrongful as such to it. but duty employee, contrary Constitu tion of South Carolina far. It does not is not go he assumed that a man in will his senses heedlessly imperil his own life. intes Culpable negligence plaintiff’s tate, which contributed to the so-called, injury, properly must defeat the action. the nature of the always But pri whether or has much to do with the mary wrong judgment, *13 not the fault was of a such character, contributive negative as a lack of and or would not was itself caused vigilance, by in law have existed but for the It is not primary wrong.

to be one to the wrong the but charged injured original Railroad, 24, 1902, doer. See v. S. E. June Rep., Kirley intestate, Jake If the finds that when the page arrived at Buf 1901, 20, on the Metcalf, April morning the section- Smith, and waved down Tom falo trestle was and on the trestle Smith and out went master, they together of the railroad the track out to Metcalf that pointed and unsafe trestle was out of order and the dangerous was the the intestate that over and told it, waved him not to go and more unsafe if it -vVas was or unsafe, apparently trestle could have been and this usual, fall than more likely not did Jake Metcalf ordinary prudence, detected direct the as thereby injured and was such exercise prudence, if or ‘Tes’; third issue will answer thereof, you result IN THE SUPREME COURT. ®. Railroad killed will answer the third willfully himself, you issue ‘Tes.’ You will third if answer the issue ‘No’ find from you evidence when arrived at trestle that Jake Metcalf .the over on Buffalo Creek he 1901, the morning April was down Tom and told flagged Smith, section-master, creek was and that he wanted Metcalf high get out and examine the did and walked out trestle, so, he on the trestle with track to be Smith, appeared alignment and was matter surface, there nothing with the track far or trestle so as from examina appeared tion water on and came the trestle except up high as is high the red line on the represented by picture (Exhibit and that 3), there was raft above the trestle and that there was further unusual about the or nothing track trestle, that Metcalf was Tom left Smith to on rely his own as to judgment whether he should on the trestle go not warned not to and'Metcalf believed he could go, over it with go as much as for some safety months before, and a man of like ordinary circumstances prudence would have so vio ordinarily believed, that Metcalf lated no rule or order of his over employer going the trestle.” Defendant to the these excepted giving instructions.

We think is there no error in the instructions as given. The defendant asked for a number instructions, special part of which were larger with certain modifica- given which tions, we have and which we carefully examined, think were made. This correctly case before this Court *14 for the second time and was at last term. We argued given have it a careful and It anxious consideration. argued with marked ability eminent counsel on both sides. It not for us to what the verdict of the say should have we been, can to only pass upon exceptions N. SPEING 0.] RAILROAD V.

HARBILL them, to bis Honor’s law, rulings upon questions for tbe find reasons hereinbefore we given,

No Error

Montgomery, The J., dissenting. plaintiff brought action to intestate recover of his killing damages of the defendant through alleged company. negligence In the it is that the defendant is a domestic complaint alleged railroad of- in and that the line corporation Carolina, North road Carolina, extends South Blacksburg, through Cleveland and Rutherford counties in North Caro- through to lina, Carolina; North that his intestate at the Marion, time of his death was the defendant as a loco- employed motive and was engineer engaged engine pull- a train 0.; from S. that ing 0., Marion, Blacksburg, care, the exericse of due undertook to cross defendant, trestle over Buffalo Creek in South Carolina between high and the killed by North Carolina line and was Blacksburg in of of the the trestle trestle, been falling part having built and in a defend- then bad condition to the insecurely ant’s is that of the knowledge. complaint allegation the trestle over lost his Buffalo Creek where the intestate life is in all of the evidence was Carolina, railroad of the the effect that it was on the track in South Carolina as the “South chartered organized Carolina and Extension Railroad Company defendant South Carolina.” The act of incorporation 1900, on the first of February, chapter company, passed day 35 of acts of the shows Assembly General the defendant was authorized operate corporation the States of maintain a railroad from the State line between line of North Carolina and South on the Carolina, county the town of Marion the State Cleveland County, line. North and thence to the Tennessee State *15 618 IN THE COURT. SUPREME

Harrjxl Railroad Oo. It was admitted both on by sides the admis- trial, the sion was correct in law, that there is a presumption law, in the absence of where a proof, has corporation authority operate railroad and the road is that operated, being the authorized the charter in fact company by. conducting its management, the Court so instructed the The jury. plaintiff’s been intestate, killed in then, South Caro- having lina on the road of the South Carolina and Georgia of South Carolina there is a presumption law that that its own road. company operating

The defendant at the close of all the evidence renewed its motion to nonsuit the the plaintiff upon that ground plaintiff had failed to show that the defendant company, South Carolina and Railroad Company of North ran Carolina, or in law train, built, was required to maintain the trestle Buffalo Creek in South spanning Carolina, that the lolaintiff’s intestate was employed the defendant We think that the motion company. should have been allowed.

The first issue was as follows: intes- “Was plaintiff’s Jake tate, Metcalf, sent employed defendant, April 20, 1901, as engineer purpose and cars engine attached from Carolina, Blacksburg, North Marion, trestle, over Buffalo Creek in the alleged complaint?”

After a careful of all the I case, evidence in this scrutiny find none to the effect intestate was either employed the defendant or that he was its direction company or orders on the 20th death. 1901—the his April, day evidence offered that fact only plaintiff prove Metcalf, was the of Mrs. Corrie positively testimony widow of the intestate. In her she said examination-in-chief that the intestate’s “run” was from to Marion Blacksburg that he had been for the same return; working C.] *16 v. Eaileoad Co.

Habbiil road on all and that “run,” tbe was on that time be Carolina was North which hauled trains he, engineer, as “Three known as the from Marion of what was the line along said that however, road.” she cross-examination, 0 On her as is the same that runs to Marion the name of the company her own and of Camden, that, that to that runs company was—she only what that name she did not know knowledge, and the order book knew that their literature (referring received his monthly wages) checks which the intestate in evi- were shown said it was. The checks order book 0., S. were drawn at Blacksburg, dence. The checks of it was printed A and at the top Tripp, superintendent, Extension Railroad Company. “South Carolina and Georgia Roll No. 2.” Pay intestate con- to the order book which was delivered state- rules, following printed to the

tained, prefatory the South of ment: 555. This is the “No. book property Railroad Company Carolina and Extension Georgia D. who Metcalf, hereby agrees loaned to J. engineer, leav- for, upon return it officer when called to the proper wit- of that The evidence the service.” He it. ing signed intestate was employed did not tend to show that the ness the defendant company. other defendant,

E. E. a witness Dougherty, he death the intestate’s at the time of hand testified that and Georgia Carolina the South train dispatcher on the intestate and that the Company, Extension Railroad Blacksburg him from out death was sent of his day had never he train; that Marion charge engine There the defendant company. been or paid by employed in this both on the plaintiff, part contention the defendant below, and in the Court Court Railroad Extension Carolina Georgia and the South or joint operators were either partners South Carolina IN THE SUFREME COURT. Railroad the two corporations, the name of the South Carolina using as the name under which their they operated or joint inter- partnership est business; his Honor submitted that view the upon the instruction: “The following charter of the defend- ant ratified on company, 1, 1899, Acts February 1899, page 129, provides that it consolidate with may other com- any in this State or pany other State, it fur- provides ther how such consolidation shall effected, and that the *17 consolidated shall be a company when cer- legal corporation tain mentioned in papers the charter should filed with of State. If the find from Secretary the evidence jury that these two corporations were business over the line doing of road in North Carolina and South Carolina name of South Carolina and Extension Railroad Georgia and there was no Company, such as this last corporation named concern, but that it was a combination of the two corporations under a operated common set of officers from a common then the South Carolina treasury, Georgia Extension Railroad of North Carolina Company would be liable for torts as joint of the under the operator property name and of the style South Carolina and Exten- Georgia sion Railroad Company.”

The evidence on which that contention was submitted to was that trains of cars ran from daily Blacksburg to Marion and returned; who testimony Dougherty, said that he was the train of the South Carolina dispatcher Extension Railroad that A. Georgia Company; Tripp was the of the same superintendent road; that Nutting supervisor that Maxwell bridges building; super- visor of C.; that all lived in S. roadway; they Blacksburg, that the South Carolina and Extension Railroad Georgia ran from Marion Camden, and that he did not Company know of different that ran from Marion company O.] Railroad Co. Blacksburg. Tbe that the act of incor- fact, too, Assembly the defendant in North and that porating Carolina, of the South Carolina the South Legislature incorporating Carolina and Extension Railroad of South Georgia Company with the same in both, authorized each corporators of the or companies to, lease or consolidate lease, with, any other railroad and the fact no lease company, such consolidation had been made or were relied effected, upon color and give force to the that, contention instead of a con- solidation between the two had companies, they agreed upon a joint management business the two roads and a division of the profits.

I cannot see how that evidence tends to the conten- prove tion. If there had been no consolidation in law of the two and there companies, is no evidence that there had been, and the name of the South Carolina and Georgia is a the evidence tends rather to Company myth, show that the South Carolina Extension Rail- road of South Carolina the real is which power the defendant road, officers who control operating *18 it live South Carolina on its line of and its railway, trains start from return the same Blacksburg day, the defendant has no cars or To me it company engines.

seems the defendant has no in the actual part of its and if it management road, is interested the profits there is no evidence it.

I think there to be a new trial. ought