Logan v. North Carolina R. Co.

• Decision Date: 17 May 1895
• Citation: 21 S.E. 959,116 N.C. 940
• Parties: LOGAN v. NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

21 S.E. 959

116 N.C. 940

LOGAN v. NORTH CAROLINA R. CO.

Supreme Court of North Carolina

May 17, 1895

Appeal from superior court, Guilford county; Green, Judge.

Action by Gilbert Logan against the North Carolina Railroad Company as lessor of the Richmond & Danville Railroad Company, for personal injury. From a judgment for defendant on demurrer plaintiff appeals. Reversed.

A railroad company cannot escape its responsibility for negligence by leasing its road to another company, unless its charter or a subsequent act of the legislature specially exempts it from liability in such case.

Complaint "(1) That the defendant, the North Carolina Railroad Company, is, and was at and before the time hereinafter named, a corporation duly chartered and organized under the laws of North Carolina, and is now, and has been continuously for more than 20 years past, the sole owner of the railroad extending from Goldsboro, in this state, through Greensboro Johnstown, High Point, to Charlotte, in this state, including the railroad bed and track laid thereon, between the points aforesaid, with all the rights, franchises, and privileges thereto belonging, with the rights to run freight and passenger cars thereon, and with the power to rent and lease the same to other companies or corporations at its pleasure, to be used for the purposes of railroading. (2) That on or about the 12th day of September, 1871, and prior to the 8th day of October, 1893, the said North Carolina Railroad leased to the Richmond and Danville Railroad Company, a corporation duly chartered and organized under the laws of the state of Virginia, for the period of 30 years then next ensuing, its said railroad from Goldsboro to Charlotte, including said roadbed and track, to be used by the said Richmond and Danville Railroad Company for the purpose of transporting passengers and freight by means of its engines and cars upon and along the said railroad track from and between these points aforesaid; and the said Richmond and Danville Railroad Company, at the time of the injury to the plaintiff, hereinafter stated, was in the possession of the said road under its said lease, and running its freight and passenger trains thereon at its pleasure, by permission of the said defendant, the North Carolina Railroad Company. (3) That the plaintiff, at and before the injuries and wrongs hereinafter mentioned, was employed by the said Richmond and Danville Railroad Company as a section hand on the section from Johnstown to Thomasville, on the line of the said defendant's railway, at and for a certain hire and reward agreed upon by the parties in that behalf. That the plaintiff was hired and employed by one Capt. Walter Suell, who was the agent and servant of the said Richmond and Danville Railroad Company, the said Suell being the section boss for said section, with full power and authority of the Richmond and Danville Railroad Company to hire and discharge hands and servants on said section, and who was the supervisor of the plaintiff in that behalf, and whose orders and commands in the lines of said service, as the agent, foreman, and boss of the said Richmond and Danville Railroad Company, the said plaintiff was lawfully bound to obey. (4) That on or about the 7th day of October, 1893, the said Suell, as such section boss, foreman, and agent of the said Richmond and Danville Railroad Company, ordered and commanded the plaintiff and others of the section hands to accompany him on a hand car over a part of the said defendant's railway, for the purpose of repairing the roadbed of the defendant at a point near Jamestown, being on the said Suell's section; and while passing over said road on the said hand car, as aforesaid, the said Richmond and Danville Railroad Company, by its agent, servant, and section boss, said Suell, not regarding its duty in that behalf, and not exercising due care, carelessly and negligently required the plaintiff and other section hands upon said hand car to propel the same into a cut on said defendant's road, with high embankments on either side, as the train hereinafter mentioned was about due to pass that point; and that while passing through said cut as aforesaid it was observed that a train of the Richmond and Danville Railroad Company was approaching from the direction in which they were going, and within about three hundred feet from them, and thereupon the said Suell, section boss, ordered the hand car to be stopped, and ordered the plaintiff and other section hands to remove the said hand car from the track, over against the left embankment, and carelessly and negligently ordered plaintiff and other section hands to lift said car, and hold it up, while the said train was passing, which command they obeyed. That as soon as the said hand car was stopped, the plaintiff and other section hands began to remove said car to the right side of the roadbed, there being more room on said side; whereupon said Suell, section boss as aforesaid, carelessly and negligently commanded plaintiff and the other section hands to remove the same to the left side, as hereinbefore stated. The plaintiff not having time to think, as the train was approaching so rapidly, believed the command of said section boss was a proper one, and from a sense of duty obeyed it, and in obedience to the command held it up on the side of said embankment, as directed and commanded by the said Suell, and that, while holding the said hand car as aforesaid, the said train, although in full view of the hand car and plaintiff for a distance of several hundred feet, and with sufficient time to have been stopped, negligently and carelessly and at full speed ran through said cut, struck the said hand car with great force and violence, and carried it upon and against the plaintiff, whereby he was greatly hurt and injured in his body and limbs, and was confined to his house and bed several months, and has never been able since to labor or work, and still suffers from the effects of the wounds, injuries, and bruises received as aforesaid, and is permanently disabled, to his damage to the amount of five thousand dollars. Wherefore the plaintiff prays judgment in the sum of five thousand dollars, and for the costs of this action, and for such other and further relief as the court may deem proper."

Demurrer: "The defendant above named demurs to the complaint of the plaintiff herein, and says that the same both not state facts sufficient to constitute a cause of action, for that: (1) It is alleged that the defendant corporation had legally leased all of its property, real and personal, rights and franchises, to the Richmond and Danville Railroad Company, and that the Richmond and Danville Railroad Company was in the legal possession of the same at the time of the injury complained of, and that the North Carolina Railroad Company was not in such possession. (2) For that the negligence for which the plaintiff brings his action is directly alleged to be the negligence of the servants and employés of the Richmond and Danville Railroad Company, and not the North Carolina Railroad Company, directly or indirectly. Therefore defendant asks that the action be dismissed, and that it recover costs," etc.

The demurrer was sustained, and the plaintiff appealed.

L. M. Scott and Shaw & Scales, for appellant.

F. H. Busbee and Shepherd, Manning & Foushee, for appellee.

AVERY J.

It is settled law in this state that railway companies are private as distinguished from public, corporations. Hughes v. Commissioners, 107 N.C. 598, 12 S.E. 465; Durham & N. R. Co. v. North Carolina R. Co., 108 N.C. 304, 12 S.E. 983. But when the power of eminent domain is delegated for the purpose of enabling these companies to discharge duties for the public benefit, they occupy a different relation to the state and the people from that of the ordinary private corporations, the powers of which are given and exercised exclusively for the profit or advantage of their stockholders, and are therefore called quasi public, though they fall within the classification of private corporations. Hence it has been declared that these companies have no more authority to sell, separate from the franchise, any real estate belonging to them, and dedicated to strictly corporate purposes, than a judgment creditor of a county has to subject the land on which the public buildings of the county are located. Gooch v. McGee, 83 N.C. 64; Hughes v. Commissioners, supra; Coe v. Railroad Co., 10 Ohio St. 372; Railroad Co. v. Colwell, 39 Pa. St. 337; Foster v. Fowler, 60 Pa. St. 27. Indeed, in Gooch v. McGee, supra, the clearest intimation is given, after approving the principle announced in the cases just cited, that, but for the fact that the statute had dispensed with the necessity for...