Ricketts v. Chesapeake & O. Ry. Co

• Decision Date: 29 January 1890
• Court: West Virginia Supreme Court
• Parties: Ricketts v. Chesapeake & O. Ry. Co.

10 S.E. 801

(33 W.Va. 433)

Ricketts

v.Chesapeake & O. Ry. Co.

Supreme Court of Appeals of West Virginia.

Jan. 29, 1890.

Railroad Companies—Lease —Injuries to Passengers—Trial—Damages.

1. A railroad company chartered by a state cannot, without distinct legislative authority, by lease, or any other contract or arrangement, turn over to another company its road, and the use of its franchises, and thereby exempt itself from responsibility for the conduct and management of the road.

2. Where a railroad company chartered by this state, permits a foreign railroad company to operate a part of its road in this state under a verbal arrangement, and the two railroads form a continuous line through and beyond the limits of this state, the domestic company will be liable for injuries sustained on that portion of its road so operated by the foreign company.

3. Upon the trial of an action for damages it is error for the court to permit the counsel for the plaintiff, over the objection of the defendant, in argument, to read to the jury, upon the question of the measure of damages, extracts from reported cases, showing large damages held not excessive.

4. A railroad company cannot be made responsible for exemplary damages on account of injuries done by one of its servants, even though the act was wanton and malicious, unless the act was expressly or impliedly authorized or ratified by the company.

(Syllabus by the Court.)

Error to circuit court, Wayne county.

Simms & Enslow, for plaintiff in error. Vinson & McDonald and J. S. Marcum, for defendant in error.

Snyder, P. Action of trespass on the case, commenced on July 19, 1886, in the circuit court of Wayne county, by G. C. Ricketts, against the Chesapeake & Ohio Railway Company, for damages alleged to have been sustained by the plaintiff by reason of an assault committed upon him by an employe of the defendant. There was a demurrer to the declaration, which was overruled, and afterwards a trial by jury on the issue of not guilty, resulting in a verdict and judgment in favor of the plaintiff for the sum of $5,000. During the trial the defendant excepted to certain actions and rulings of the court, and to review said actions and rulings it has brought this writ of error.

All the evidence adduced on the trial is made a part of the record, and the first error complained of is that upon the facts disclosed the defendant is not liable for the alleged injury to the plaintiff, because the wrong, if any, was done by the Eliza-bethtown, Lexington & Big Sandy Railroad Company, and not by the defendant. The facts in respect to this question are as follows: The defendant is a domestic corporation, passing through this state, and connecting at the Big Sandy river, the state line, with the Elizabethtown, Lexington & Big Sandy Railroad Company, a Kentucky corporation; and by a verbal arrangement between these two companies the Elizabethtown, Lexington & Big Sandy Company operated that part of the defendant's road between the Big Sandy river and Huntington, a distance of about 10 miles, in this state. These two roads, while existing under separate charters and organizations, were in fact operated as a continuous line of railroad from Newport News, in the state of Virginia, to Lexington, in the state of Kentucky, passing through Richmond, Va., Huntington, in this state, and Catlettsburg, in Kentucky. The evidence does not disclose the terms under which that part of the defendant's railroad between Huntington and the state line was operated, or how the expenses were provided for, or what division or disposition was made of the earnings. It does appear, however, that the defendant owns a large part of the rolling stock used on that part of its road; that at least some of the officers and servants in charge of that part of its line were paid by the defendant; and that the Elizabeth-town, Lexington & Big Sandy Company had not complied with the provisions of the statutes of this state in such manner as to authorize it to operate a railroad in this state. The facts further show that on December 21, 1885, the plaintiff, at Catlettsburg, in Kentucky, purchased of an agent of the Elizabethtown, Lexington & Big Sandy Company a ticket from that place to Huntington; that upon said ticket he took passage upon a train to Huntington, and after passing on the train into this state he was found by the conductor in the ladies' car, smoking a cigar, and then and there a difficulty arose, which resulted in the alleged assault upon and injury to the plaintiff, for which he brought this action.

It seems to me that under this state of facts the defendant was liable to the plaintiff, if he was injured by reason of the misconduct or negligence of the officers or employes on the said train. The court, in its opinion in Railroad Co. v. Winans, 17 How. 38, 39, says. " Important franchises were conferred upon the corporation to enable it to provide the facilities for communication and intercourse required for the public convenience. Corporate management and control over these were prescribed, and corporate responsibility for their insufficiency provided, as a remuneration to the community for their grant. The cor-poration cannot absolve itself from the performance of its obligations without the consent of the legislature." And in Railroad Co. v. Brown the court says: "It is the accepted doctrine in this country that a railroad corporation cannot escape the performance of any duty or obligation imposed by its charter, or the general laws of the state, by a voluntary surrender of its road into the hands of lessees. The operation of the road by the lessees does not change the relations of the original company to the public." 17 Wall. 450; 1 Redf. R. R. c. 22, § 1, p. 616. In Naglee v. Railroad Co., 83 Va. 707, 3 S. E. Rep. 369, the court decided that by executing a deed conveying its road, franchises, etc., to trustees selected by itself, a railroad company cannot evade its legal liabilities for injuries subsequently done to persons and property by the negligent operation of its road. We think it may be stated, as the just result of the decided cases, and on sound principle, that a railroad corporation cannot,...