Page images
PDF
EPUB

company making a lease without legal authority subjects itself to liability for the torts of its lessee committed in the operation of the leased road.' This, however, does not seem to be different from the prevailing doctrine in cases where leases are authorized. A railway company executing a lease to another company of the exclusive use of its track and rolling stock for ninety-nine years, which is confirmed by the legislature, will still be liable for the destruction of property by fire, caused by a neglect on the part of the lessee company to keep its track clear of all inflammable matter, notwithstanding the legislature may have conferred upon such lessee corporation all the powers of the lessor. There being no clause of exemption in such act of the legislature, the liability of the lessor will remain. And both lessor and lessee are liable under a like statute for such an injury. The original obligation can only be discharged by a legislative enactment consenting to and authorizing the lease, with an exemption granted to the lessor company.

[ocr errors]

§ 367. Line between liability of lessor and lessee. When a railway is leased under a statute expressly providing that the lessor shall not be exonerated from any duties or liabilities imposed by its charter, the lessee and not the lessor is liable

it from responsibility, in the absence of any provision granting such exemption; and there is no such exemption in defendant's charter."

1 York &c. R. Co. v. Winans, 17 How. 301; Alexandria &c. R. Co. v. Brown, 17 Wall. 445; Abbott v. Johnstown &c. R. Co., 80 N. Y. 27; s. c. 36 Am. Rep. 572; Macon &c. R. Co. v. Mayes, 49 Ga. 355; s. c. 15 Am. Rep. 678; Nelson v. Vermont &c. R. Co., 26 Vt. 717; s. c. 62 Am. Dec. 614; Mahoney v. Atlantic &c. R. Co., 63 Me. 68; Chicago &c. R. Co. v. Whipple, 22 Ill. 105. Cf. Woodruff v. Erie Ry. Co., 93 N. Y. 609.

2 Balsley v. St. Louis &c. R. Co., (1886) 119 Ill. 68; Pratt v. Atlantic

&c. R. Co., 42 Me. 579; Stearns v. Atlantic &c. R. Co., 46 Me. 95.

3

Ingersoll v. Stockbridge &c. R. Co., 8 Allen, 438; Davis v. Providence &c. R. Co., 121 Mass. 134. It is the same when the lease was without special authority from the State. Both companies are liable to the owner of the stock - the one because of its actual operation of the road; and the other because it could not, without permission of the legislature, transfer its franchise even temporarily so as to release itself from liability for the acts and defaults of its lessee. International &c. Ry. Co. v. Dunham, (1887) 68 Tex. 231.

Singleton v. Southwestern Ry. Co., 70 Ga. 464.

for torts; as, for example, to a passenger injured by an assault and wrongful expulsion from its train by one of the lessee's servants. So it has been said that an authorized lease, even without any exemption clause, absolves the lessor from the torts of the lessee resulting from the negligent operation and handling of its trains and the general management of the leased road over which the lessor can have no control. But for an injury resulting from the negligent omission of some duty owed to the public, such as the proper construction of its road, station houses, etc., the charter company can not, in the ab sence of statutory exemption, discharge itself of legal respon sibility. The distinction is stated by Judge Brewer to be that if the injury results from negligence in the handling of trains or in the omission of any statutory duty connected with the management of the road, matters in respect of which the lessor company could in the nature of things have no control, then the lessee company will alone be responsible; but when the injury results from the omission of some duty which the lessor itself owes to the public in the first instance something connected with the building of the road - then the company assuming the franchise can not divest itself of responsibility by leasing its track to some other company." This seems to be as far as principle can extend the lessor's liability, and it appears to be settled that the lessee is liable for injuries inflicted through the negligence of its employees

1 Mahoney v. Atlantic &c. R. Co., 63 Me. 68, by a divided court. But in Braslin v. Somerville &c. R. Co., (1887) 145 Mass. 64, this case was not followed, and the lessor was held liable in not unlike circumstances.

2 Nugent v. Boston &c. R. Co., (1888) 80 Me. 62, holding that when a railroad corporation leases its road by virtue of a legislative enactment containing no provision exempting it from liability, the lessor is liable for a personal injury which resulted solely from the original defective construction of its station house,

though the lessee had long been in full possession and control under the lease, and had covenanted therein to maintain the station houses in as good order as they were in at the date of the lease. The same rule has been followed in respect of cattle guards omitted in the original construction of the road. Cook v. Milwaukee &c. R. Co., (1874) 36 Wis. 45; St. Louis &c. R. Co. v. Curl, (1882) 28 Kan. 622.

3 St. Louis &c. Co. v. Curl, (1882) 28 Kan. 622.

in the management of trains. It seems a matter of course, however, that if the road be operated under the name of the lessor, the latter will be liable."

[ocr errors]

§ 368. Liability of the lessee. A railway can not, without express statutory authority, divest itself of its franchise, or delegate to others the performance of that duty which the legislature has imposed upon it. But if a railway, under due authority of law, has leased its line to another railway, the lessor railway is not liable for torts committed by the lessee railway in the operation of the line. The lessee is liable for any injuries after it enters into possession, arising from its failure to keep the property in repair, as for example its own failure to keep the tracks in good condition. The lease, under due authority of law, effects a transfer of rights and liabilities in its management, so that the corporation owning the railroad is discharged from responsibility for the lessee's torts."

'Davis v. Providence &c. R. Co., 121 Mass. 134; Hall v. -Brown, 54 N. H. 495. But Peoria &c. R. Co. v. Lane, 83 Ill. 448, is contra, agreeing with the decisions cited in the last section.

2 Bower v. B. & S. W. R. Co., 42 Iowa, 546. In a case where consolidation had been attempted by means of an unauthorized lease it was held that the lessor company was not in a state of quiescence or torpor, but that instead of managing its road alone, it operated it in conjunction with others; and that, accordingly, it remained liable for injuries caused by those whom it had associated with itself in the operation and management of its property. Latham v. Boston &c. Ry. Co., 38 Hun, 265, citing Abbott v. Johnstown &c. Horse R. Co., 80 N. Y. 27; s. c. 36 Am. Rep. 572.

3 Virginia Midland Ry. Co. v. Washington, (Va. 1890) 7 Ry. & Corp. L. J. 353, holding that a railroad company which has, under authority

of the legislature, leased its road, and transferred the exclusive possession and control thereof to another company, can not be held liable for injuries thereon, sustained by a servant of the lessee, by reason of the lessee's negligence. Acc. Railroad Co. v. Morris, 63 Tex. 59. If the circumstances are such as to render the lessee liable for torts, it can not plead by way of defense that the lease was ultra vires of the lessor company. McCleur v. Manchester &c. R. Co., 13 Gray, 124; s. c. 74 Am. Dec. 624; Beach on Railways, § 569; Doolan v. Midland Ry. Co., L. R. 2 App. Cas. 792.

4 Hoff v. Minneapolis &c. R. Co., 14 Fed. Rep. 558; Wasmer v. Delaware &c. R. Co., 80 N. Y. 312; Philadelphia &c. R. Co. v. Anderson, (1880) 94 Penn. St. 351; s. c. 39 Am. Rep. 787; Beach on Railways, § 569. 5 Virginia Midland Ry. Co. v. Washington, (Va. 1890) 7 Ry. & Corp. L. J. 353, citing Pierce on Railroads. 283; Mahoney v. Railroad Co., 63

The lessee company, for the purposes of the lease, becomes, pro hac vice, the owner of the road, and 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 of the lessees towards him; nor is there, in such case, any privity, either of contract, or by implication of law, between the passenger and the lessors, as common carriers of passengers, by which they are rendered liable for such an injury. The remedy of the passenger for an injury thus caused is against the lessees, who have the exclusive use, care, direction, and control of the road, and with whom alone the passenger contracts. The lessee company is not, however, liable for the torts of the lessor committed prior to its taking possession of the property, nor for such injuries to property and person occurring after possession as are occasioned by the fault of the lessor.2 Statutes imposing police and other duties and liabilities on railroad companies are usually construed to apply to companies and persons who are in possession under contracts with, or by permission of, the company owning the railroad.3

§ 369. New York statutes.- In New York the statutes have long authorized leases of one railroad to another, and the acquiring of stock in a leased road. Under the law providing,

Me. 68; Ditchett v. Railroad Co., 67 N. Y.425; s. c. 5 Hun, 165; Norton v. Wiswall, 26 Barb. 618. Yet in Singleton v. Railroad Co., 70 Ga. 464, where a lease had been authorized by statute, the lessor railway was held liable to a passenger who was injured by the negligent operation of a train by the servants of the lessee railway, upon the ground that the statute authorizing the lease did not in terms exempt the lessor railway from liability; but this case seems to be in conflict with the current of authority. Virginia Midland Ry. Co. v. Washington, (Va. 1890) 7 Ry. & Corp. L. J. 353, citing Patterson on Railway Accidents, §§ 130, 131.

1 Mahoney v. Railroad Co., 63 Me. 68; Virginia Midland Ry. Co. ”. Washington, (Va. 1890) 7 Ry. & Corp. L. J. 353; Nugent v. Railroad Co., 89 Me. 62-72.

2 Pittsburg &c. R. Co. v. Kain, 35 Ind. 291; Beach on Railways, § 569.

3 Virginia Midland Ry. Co. v. Washington, (Va. 1890) 7 Ry. & Corp. L. J. 353, citing Pierce on Railroads, 283, 284; Daconing v. Chicago &c. R. Co., (1876) 43 Iowa, 96; Clary v. Iowa &c. R. Co., 37 Iowa, 342; Stewart v. Chicago &c. R. Co., 27 Iowa, 282.

4 These statutes are consolidated in the "Railway Law of 1890," Laws of 1890, ch. 565, §§ 78, 79.

that "it shall be lawful hereafter for any railroad corporation to contract with any other railroad corporation for the use of their respective roads, and thereafter to use the same in such manner as may be prescribed in such contract; but nothing in this act contained shall authorize the road of any railroad corporation to be used by another railroad corporation in a manner inconsistent with the provisions of the charter of the corporation whose railroad is to be used under such contract," a railroad corporation has the right and power to lease its property and franchise to another railroad corporation, provided the same is to be used by the lessee for the purpose defined in the charter of the lessor, and may exercise this right and power in all cases where there is no prohibition against their exercise contained in the charter of either company.1 This act has been held by the Court of Appeals to confer power upon railroad corporations not only to acquire, but also to transfer to other railroad corporations by lease, the exclusive right to enjoy the property and privileges of the lessor. And there is no statutory inhibition against such lease, although the roads are parallel and competing lines. The law prohibiting the merger or consolidation of companies whose railroads run on parallel or competing lines, does not apply to prevent the leasing of one railroad by another, even for a long period, as such leasing is not a merger or consolidation. The legis lature having authorized the leasing of parallel or competing railroads, the validity of the lease can not be questioned by the courts upon grounds of public policy. Under these laws, however, there is no power to lease to individuals. Thus a contract of a street railway company, after it had abandoned a

1 Gere v. New York &c. R. Co., (1885) 19 Abb. N. C. 193, construing New York Laws 1839, ch. 218.

2 Woodruff v. Erie R. Co., 93 N. Y. 609; Fisher v. New York &c. R. Co., 46 N. Y. 641; People v. Albany &c. R. Co., 77 N. Y. 232; Troy &c. R. Co. v. Boston &c. R. Co., 86 N. Y. 107; Central &c. R. Co. v. Twentythird Street R. Co., 54 How. Pr. 168, 183.

(1885) 19 Abb. N. C. 193; New York Laws 1869, c. 917, § 9.

Gere v. New York &c. R. Co., (1885) 19 Abb. N. C. 193.

5 Abbott v. Johnstown &c. R. Co., 80 N. Y. 28, where a horse railroad was leased to an individual, and for an injury resulting from negligence in handling a car, the company was sued; and it was held that there was no power to lease the road to an inGere v. New York &c. R. Co., dividual, and that the lessee must be

« PreviousContinue »