86 Va. 629 | Va. | 1890
delivered the opinion of the court.
The declaration in this case claims $80,000 damages for injuries alleged to have been inflicted upon the plaintiff, George Washington, Jr., while he was serving the said Virginia Midland railway company as a fireman upon one of its freight
Soon after the institution of this suit in the circuit court of Alexandria city, the said Washington brought a like suit, for the same cause of action and for the same amount ($30,000 damages) in Orange county, where the accident occurred, against the Richmond & Danville railroad company, which, suit is ii'oAv pending in the circuit court of said county.
There was a demurrer to the AAdiole declaration, and specially to each count thereof. The circuit court of Alexandria city overruled the demurrer, and compelled the defendant to go to trial. In the progress of the trial the defendant objected to the introduction of the testimony of the plaintiff until a foundation was laid, and then moved to exclude it upon the ground of total irrelevancy to the case alleged in the declaration. • It not only failing, utterly, to prove the alleged relation of the plaintiff (Washington) to the defendant (Virginia Midland railway company) as its employee at the time and place of the accident, and that the said accident or injury was caused, done, or occasioned by the said defendant company, but distinctly and absolutely proving that the said plaintiff was in the employment of the Richmond & Damdlle railroad company, then and there, as fireman upon a train of the said company; and that the injury was done by the said train being collided with another train of the said company under the management, control, and conduct of another servant or employee of the said Richmond & Danville company—viz., the conductor on the said passenger train Eo. 53. But the court overruled the motion to exclude the said testimony, and not only permitted it to go to the jury, but instructed them that “the defendant could not, by the lease shown in evidence, exonerate itself
Upon this evidence and this instruction the jury rendered a verdict for $10,000 damages for the plaintiff; which verdict the defendant moved the court to set aside, but the court overruled the motion and entered judgment upon the verdict. To this action of the court the defendant excepted, and the case comes up to this court upon the three bills of exceptions to the said rulings of the court.
The exceptions may be all grouped; as the demurrer to the declaration, the motion to exclude the testimony of the plaintiff, and the instruction given by the court to the jury, all present the question for this court to decide, viz: the liability of the defendant, Virginia Midland railway company, to respond in damages to the suit of the plaintiff, Washington, for injuries inflicted on him while he was an employee of the Richmond & Danville railroad company,, by the negligence of the conductor of another train of the said Richmond & Danville company, which company had leased the said Virginia Midland railway, by virtue and authority of an express act of the general assembly of Virginia, for ninety-nine years, and was in the exclusive. and absolute operation, possession, management, and control of the same, when its own employee, Washington, a fireman upon one of its own freight trains, was run into and injured by another train of its own, under the conduct of another em7 ployee of its own, the conductor of its passenger train Xo. 53, without the knowledge or complicity of the Virginia Midland railway company, defendant, who, by solemn act of the legislature had ceased to exist, so far as operating its road, and who had given up its road before this appellee was employed by the Richmond & Danville railroad company, and who owned and operated no trains, employed no'servants, and had no knowl7
We are of opinion that the circuit court erred in not excluding the evidence, after it manifestly failed to prove the case set out by the declaration against the defendant; and did, as manifestly, show an entire disparity between the allegata and the ‘probata; and it aggravated the error, to the prejudice of the defendant, by its instruction, which, without defining what were the “ duties and liabilities ” which the defendant company could not escape, by the lease in evidence, virtually told the jury that one of the “ duties and liabilities ” to the public of the Virginia Midland railway company is to pay damages to the employees and servants of the Richmond & Danville railroad company, who are hurt by the negligence of the Richmond and Danville railroad company, provided the accident occurred on the road-bed of the lessor, Virginia Midland company. The court erred in refusing to set aside the verdict. It is established, beyond question or controversy, by the evidence of the appellees and by the pleadings, in the record, that the appellee, Washington, was not in the employment of the Virginia Midland railway compauy, which had, before Washington entered the service of the Richmond & Danville railroad company, by solemn and formal lease for a term of ninety-nine years (as it was duly authorized to do by acts of general assembly of Virginia, passed February 15th, 1866, and July 11th, 1870), surrendered and transferred the sole and exclusive use, management, possession, and control of itself and of everything pertaining to its autonomy, rights, powers, and duties, (except only so much as to keep' itself alive), to the Richmond & Danville railroad compauy; of which said lease and transfer notice was given in the most public manner, by the authorities of the Virginia Midland railway company that they had abdicated, and by the Richmond & Danville railroad company that they had acquired and assuffied control of the Virginia Mid
A corporation exists and acts towards the public through and by its agents and agencies; but there is a discrimination between its duties, obligations and liabilities to the public, as such, and its duties and responsibilities to its own necessary employees, to whom it stands in the relation of master and servant, by contract of employment which may, or may not, implicate the risk or hazard of the employment. That question obtains between Washington and the Richmond & Danville company, in whose service and by whose servant he was injured. His case against the defendant is not within the reason or the rule of the numerous cases, decided by this and other courts, involving the policy and law of the duty and responsibility of railway carriers to the passenger public; nor oven the duty and measure of redress due for injuries inflicted
It is contended, however, by the appellee, and was so decided by the court, that, as the act of the general assembly authorizing the Richmond & Dauville company to acquire, “ by lease or otherwise” of the Virginia Midland railway,” its franchises and property, and to hold, use and enjoy the same in like-manner as the proper franchises and property of the Richmond & Danville railroad company are held, used and enjoyed,” does not, expressly and in terms, grant a positive exemption from the liabilities imposed upon it by law under its charter, the lease and transfer of its road, for ninety-nine years, to the absolute and entire and exclusive use, conduct and control of the Richmond & Danville railroad company, does not operate in law to release it from liability, not to the passenger public or even to its own servants, and for its own negligence, but to-the working agencies employed by the Richmond & Danville railroad in operating and. discharging their own duties to the public, and for the negligence and wrong-doing of the Richmond & Danville company’s own servants.
This construction is not tenable in law or reason, and is not warranted by the broad scope, comprehensive language, and
In the case of Mahoney v. Atlantic & St. Lawrence. R. R. Company, 63 Maine, 68, it was decided that the lessee company, for the purposes of the lease, became, pro luce, rice, the owners of the road, and that, while the lessees operate the road under their lease, the lessors are not liable, under their charter or the statutes of the state, for an injury sustained thereon by a passenger, caused by the wrongful acts of the agents or servants
All the cases cited and relied on by the appellee to support his suit against the Virginia Midland railway company for damages for injuries inflicted by the Richmond & Danville railroad company upon Washington, their own contract servant and agent, in the operation of a road which was exclusively their own road under a lease for ninety-nine years by special legislative consent, given in a special act of the general assembly of Virginia, of as much public importance and as high a sanction as the original charter of the lessor company, are inapplicable to the facts of this case, which take it wholly out of the purview and the policy of the law which holds railroad companies to the strict and inexorable duties which they owe to the public and to their own servants withal, but not one of them involved the question of liability on a lessor company to an employee of the lessee company for injuries inflicted by the lessee company upon their own agent or servant in their own operations.
There is a proper suit of the appellee pending in the circuit court of Orange county—the scene of the accident—against the Richmond & Danville railroad company, in whose service alone Washington was, and by whose conductor he was injured; and in that suit the question of gross negligence, the extent of his injuries, and the just measure of his redress must be adjudged.
Judgment reversed.