116 Cal. 97 | Cal. | 1897
Plaintiff brought this action against the Southern Pacific Railroad Company to recover damages for personal injuries sustained by him. He pleaded that the defendant was the owner of a certain railroad in the county of Los Angeles, and of its roadway, tracks, and appurtenances; that at the time of the injuries complained of he was employed by the defendant as a brakeman, and that while in the performance of his duties as brakeman at a siding called Honby, on the line of the road, he was thrown from an engine upon which he was riding and sustained serious injuries. The cause of the accident was alleged to be the negligence of the defendant in imperfectly constructing the rails and track of the road at Honby, and in allowing this defectively constructed track to remain out of repair, inadequate and unsafe.
The answer admitted the ownership by defendant of the road in question, denied that defendant was engaged
The jury returned a general verdict in favor of plaintiff in the sum of eight thousand dollars.
It likewise made special findings of fact upon certain interrogatories presented. These findings, with certain other facts agreed to by counsel under stipulation, may thus be summarized: The defendant was the owner of the railroad upon which the accident complained of occurred, but prior to the time of the accident it had leased the road and all the rolling stock and property of every kind used upon or in connection with it to the Southern Pacific Company of Kentucky. The Southern Pacific Company was at the time of the accident in the exclusive operation of said railroad under the lease. The sidetrack upon which the accident occurred had been constructed by the Southern Pacific Company as an aid or adjunct to the main line, but was the property of the defendant corporation. The plaintiff at the time of the accident was in the employ of the Southern Pacific Company, and not of the Southern Pacific Railroad Company. The trial court determined that a conflict existed between the special findings and the general verdict, and, holding that under the special findings defendant was entitled to judgment, rendered its decision accordingly.
Section 10, article XII, of the constitution, declares: “ The legislature shall not pass any law permitting the leasing or alienation of any franchise so as to relieve the franchise or property held thereunder from the liability of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use, or enjoyment of such franchise, or any of its privileges.”
Upon this language appellant contends that the constitution gives one a right of action against the corporation which has owned property for an injury which has resulted to him in the use of such property in the
The section in question was adopted by the constitutional convention without debate. It is a provision peculiar to this state. It has not so far received judicial interpretation; yet we think no difficulty need be experienced in arriving at its true meaning. It is not to be construed as a grant of authority to lease, but as a restriction upon the power of the legislature to make such grant of authority. (Abbott v. Johnstown etc. Horse R. R. Co., 80 N. Y. 27; 36 Am. Rep. 572; Central etc. R. R. Co. v. Morris, 68 Tex. 49.)
It declares: 1. That if a lease or sale shall be made of the franchise or property of a corporation, the lessee or grantee shall take such franchise or property cum onere, subject to any of the liabilities of the grantor at the time existing and enforceable against the franchise or property. This provision is for the very obvious purpose of preventing a corporation, by selling or assigning its franchise or property, from saving harmless the franchise or property, and leaving remediless one who but for the lease or sale could have enforced against the property- a judgment which he might recover. It is designed further as a declaration that the forfeiture of a franchise for an act committed or omitted by the charter corporation while it owned such franchise may be enforced after transfer of the franchise by sale or lease. 2. That in the hands of the lessee or-grantee the franchise or other property shall be subject to the liabilities which may be incurred in its occupation, use, or enjoyment. Thus the corporation owning the property will not be allowed to save it harmless by conveying it to another corporation. In the hands of the operating corporation the franchise and property will still be liable, the one to forfeiture at the instance of the state, the other to execution levy at the instance of any individual who has sustained loss or injury by reason of the wrongful acts of the operating corporation.
So far as the case at bar is concerned, it can have but this application and no other. It would enable the plaintiff injured by the negligence of his employer, the lessee company, to make good his judgment, under appropriate procedure, out of the leased property, but it would not operate to giye the plaintiff, an employee of the lessee company, a right of action against the lessor company, upon the fiction that it was his employer.
Respondent contends that, having made a valid lease of all its railroad property to the Southern Pacific Company, it is absolved from all liability to plaintiff. Upon the part of the appellant, it is contended that the lease is without sanction from the constitution and laws of the state, and is, therefore, Void. The question of the validity or invalidity of the lease is thus collaterally presented, but a decision upon it is not necessary to a determination of the rights of the parties hereto. If the lease were made without legislative sanction, it would be void, and under all of the authorities the lessor would continue liable for all the negligence of the lessee affecting the public, the latter being treated as operating the
In St. Louis etc. Ry. Co. v. Curl, 28 Kan. 622, a railway company constructed its track, and in the construction omitted to make sufficient cattle-guards where the track entered and left a field. Thereafter the railroad was leased to another company, which at the time of the injury complained of was in full possession and use of the track, and by the terms of its lease had contracted to discharge all statutory obligations and duties imposed upon the lessor company. The owner of land adjacent to the railroad brought his action against the lessor company to recover damages for injuries sustained to his crops by straying cattle. Justice Brewer, in delivering the opinion of the court, said: “Defendant contends that where the statute authorizes the lease by one
In Nugent v. Boston R. R. Co., 80 Me. 62, 6 Am. St. Rep. 151, the defendant railroad, under express authority of law, had leased its road to the Portland & Ogdensburg Railroad, which latter road was engaged in its management and operation. A brakeman of the Portland & Ogdensburg road sued defendant for personal injuries received by reason of the negligent construction of an awning at a stationhouse built by defendant company. The case received elaborate consideration; the action of the brakeman against the owning road
In Arrowsmith v. Nashville etc. R. R. Co., supra, the same rule is enunciated, and numerous authorities cited in support thereof. Indeed, a somewhat extended examination of the cases justifies the conclusion that this principle at least is accepted without conflict. An analysis of the case of East Line etc. Ry. Co. v. Culberson, 72 Tex. 375, 13 Am. St. Rep. 805, a case upon which respondent strongly relies, will disclose that the law there enunciated is not only not v at variance with the principle above mentioned, but embodies a distinct recognition of it. In that case an employee of the operating company sued the lessor company, claiming damages for injuries sustained by reason of defective appliances furnished by the operating company. The court held, and very properly, that such an action would not lie against the lessor company, and said: “It may be that, if the injury had occurred by reason of a defect in the roadbed or track, and not by reason of a defect in the engine, the company charged with the duty of keeping up the road would be liable. But if it were true that the injury was caused entirely by another company operating the owner’s road, and was inflicted upon one of its employees by reason of a defect in machinery entirely under its control, it is difficult to see upon what principle of policy or justice the lessor should be held liable merely because it owned the road.”
So here, the charge against the defendant is that the injury resulted by reason of its imperfect construction and maintenance of the rails and track of its road. The verdict of the jury for plaintiff is its declaration that the charge was substantiated by the evidence, and the nature of the omission or dereliction is such as to entitle the plaintiff to compensation.from the defendant herein for injuries which may have resulted to him by reason of it.
As has been indicated, the plaintiff in this case has averred that he was an employee of the defendant corporation. The proofs in this regard disclose that he was in the employ of the Southern Pacific Company. The variance we think to be immaterial. The averment could be eliminated, and a cause of action would still remain. Plaintiff has pleaded and shown to the satisfaction of the jury that he was not a trespasser upon the railroad at the time and place where he met with his injury, but that he was there under lawful employment; that in pursuit of his vocation he met with an injury occasioned by defendant’s defective construction of its roadbed, for which injury the defendant is in law responsible.
It follows that there is no irreconcilable conflict between the special findings and the general verdict of the jury, and the court should, therefore, have entered judgment for plaintiff. The judgment is reversed, and the cause remanded with instructions to the trial court to enter judgment in favor of plaintiff and appellant under the general verdict of the jury.
Temple, J., and McFarland, J., concurred.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank.