112 Ky. 861 | Ky. Ct. App. | 1902
Reversing.
Appellant, Emma R. McCabe, as administratrix of Peter McCabe, deceased, filed this suit in the Mason circuit court against appellees, the Maysville & Big Sandy Railroad Company and the Chesapeake & Ohio Railway Company, to recover damages for the death of her intestate, who, she alleged, was killed in September, 1901, while walking along Third street in the city of Maysville, by ah engine and train of the Chesapeake & Ohio Railway Company, by reason of the negligence of its agents in charge thereof', as well as the negligence of the Maysville & Big Sandy Railroad Company in permitting it to use the track, which was the property, of the latter company. She alleged that after the building and completion of its road, and more than twelve months before the injuries to her intestate, the Maysville & Big Sandy Railroad Company leased and transferred its entire line of road to the Chesapeake & Ohio Railway Company, and that the latter has since that time been in the exclusive! possession and control it; that by the laws of Kentucky the lease and transfer were ultra vires and void; that in December, 1893, pursuant to section 211 of the Constitution of Kentucky, and section 841, Kentucky Statutes, the Chesapeake & Ohio Railway Company became a corporation, citizen, and resident of this State by filing in the office of the secretary of State, and in the office of the railroad commission, copies of its articles of incorporation, and that thereupon a certificate of said incorporation was issued to it by the secretary of State.- She further alleged that the railroad track was laid in Third street under an ordinance from the city authorities; that the railroad track took up the whole street, so as to render it unfit for travel by wagons or vehicles; that the city authorities were without power to authorize such a use of the street; and that'
In Powers v. Railroad Co., 169 U. S., 92, 18 Sup. Ct., 264, 42 L. Ed., 673, the United States supreme court said: “A petition for removal, when- presented to the State court, becomes part of the record of that court, and must doubtless, show, taken in connection with the other matters on that record, the jurisdictional facts upon which the right of removal depends; because, if those iacts are not made to appear upon the record of that court, it is not bound or
As to the power of the Maysville & Big Sandy Railroad
In some States a distinction is made between injuries resulting from the negligence of the lessee alone and those resulting from the failure of the lessor to discharge some duty imposed by law upon him, where the lease is authorized by statute, and the lessor is only held liable for the latter. Thus the lessor is held responsible where cattle stray upon the track and are injured while the road is operated by the lessee by reason of the failure to fence the
Upon principle and the weight of authority we are of opinion that the Maysville & Big Sandy Railroad Company is liable to appellant. The obligation to" fence'the track for the protection of stock, or to receive passengers or freight, or carry them safely, is no more a duty of the lessor imposed upon it by its charter than its duty to avoid injury to the traveling public in the discharge of its functions, as in this case. By its acceptance of the franchises conferred by the State the corporation assumed the corresponding burdens thereby imposed. These franchises it could not transfer to another without distinct legislative authority. The grant of power to lease its property is one thing; the grant of absolution from its responsibility is another, and is not to be inferred from a mere power to lease the road, where the corporation still retains its existence and the enjoyment of its franchises in the rents. For such grants are strictly construed, and, as against the public, are never extended by construction. In the case before us there is only a grant to the lessor of power to contract for the operating of the road. The company enjoys all its' franchises in the fruits of the contract. There is nothing in the provision to show that the Legislature had in mind authorizing the company to divest itself of its franchises, or permitting it, while enjoying them or their fruits, to be acquit oí re
It is unnecessary for us to pass upon section 211 of the Constitution and section 841 of the Kentucky Statutes, and determine whether appellee can accept citizenship in this State, and so take all its advantages and at the same time plead that it is a non-resident of the State.
Judgment reversed, and cause remanded for further proceedings consistent with this opinion.