Kirk v. Williamson &. Pond Creek R. Co, (No. 5230.)

CourtSupreme Court of West Virginia
Writing for the CourtMIDLER
Citation129 S.E. 922
PartiesKIRK . v. WILLIAMSON &. POND CREEK R. CO.
Docket Number(No. 5230.)
Decision Date13 October 1925

129 S.E. 922

KIRK .
v.
WILLIAMSON &. POND CREEK R. CO.

(No. 5230.)

Supreme Court of Appeals of West Virginia.

Oct. 13, 1925.


[129 S.E. 922]
(Syllabus by the Court.)

Error to Circuit Court, Mingo County.

Action by Wilson Kirk against the Williamson & Pond Creek Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Holt, Duncan & Holt, of Huntington, for plaintiff in error.

Bias & Chafin, of Williamson, for defendant in error.

MIDLER, J. In an action against defendant for personal injuries sustained, plaintiff recovered a verdict and judgment for $5,000.00.

The cause of the action is that, being the owner, proprietor and operator of a railroad extending from the city of Williamson in this state, to the village of Hardy, in Pike County, Kentucky, the defendant company, at and near the village of Peg, on said railroad in said Pike County, so carelessly, negligently and improperly behaved and conducted itself in and about the management, control and direction of its locomotives, engines and cars, that the same, by and through the default, carelessness, negligence and improper conduct of its servants and employees, were driven with great force and violence against plaintiff, whereby he then and there sustained severe, serious and permanent injuries, and by reason whereof he also suffered Continuously great pain, and for which he laid his damages at $20,000.00.

Issue was joined on defendant's only plea of not guilty, with the result already indicated; and the defendant sued out the present writ of error.

Numerous propositions, more or less involved in one another, are advanced by defendant's counsel to reverse the judgment; the first of which is that the circuit court, as requested by defendant's instruction number 1, should have peremptorily instructed the jury to return a verdict for defendant. In support of this proposition reliance is had upon the fact that, while the defendant company is the owner of the railroad and its franchise, the property at the time of the alleged injury was being operated by its lessee, the Norfolk & Western Railway Company, the owner of the locomotives, engines and cars operated over said railway, and that the defendant company had no part therein. It is practically conceded that but for the provisions of section 203 of the constitution of the State of Kentucky, and the decisions of its courts in reference thereto, the defense would be complete. The section referred to is as follows:

"No corporation shall lease or alienate any franchise so as to relieve the franchise or property held thereunder from the liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use or enjoyment of such franchise, or any of its privileges."

It seems to be settled law in Kentucky that a railway company cannot, by a lease of its corporate property and franchise, relieve itself of its duties and obligations to the public, without express authority exempting it therefrom. McCabe's Adm'x v. Maysville & B. S. R. Co., 112 Ky. 861, 66 S. W. 1054; Lee v. Railroad Co. (Cal. Sup.) 58 Am. St. Rep. 152, note; Illinois Cent. R. Co. v. Sheegog's Adm'r, 120 Ky. 252, 103 S. W. 323.

Whether the provision of the Kentucky constitution involved renders a lessor company liable for injuries inflicted by the lessee on its own servants in the operation of

[129 S.E. 923]

the railway property in the manner shown in the ease at bar, we need not decide. The decisions in Kentucky would seem to hold the lessor not liable for such injuries; the reason in part at least being that the relationship of employee to employer in such cases is contractual, and the rights of the parties controlled by the contract. Swice's Adm'x v. Maysville & B. S. R. Co., 116 Ky. 253, 75 S. W. 278.

The plaintiff in this case was not an employee of the lessee company, but a member of the general public; and his rights must be governed by the law applicable thereto. With respect to the public or third persons the law is settled in Kentucky that the lessor company cannot discharge its duties by leasing its property to another company. Raikes v. Payne, 198 Ky. 820, 249 S. W. 1020; dinger's Adm'x v. C. & O. R. Co., 128 Ky. 736, 109 S. W. 315, 15 L. R. A. (N. S.) 998. The case here must be determined by the laws of Kentucky, because plaintiff's injuries were sustained there. But the law of this state independently of any statutory regulations seems to be the same. Ricketts v. C. & O. Ry. Co., 33 W. Va. 433, 10 S. E. 801, 7 L. R. A. 354, 25 Am. St. Rep. 901; Fisher v. West Va. & Pittsburg R. Co., 39 W. Va. 366, 19 S. E. 578, 23 L. R. A. 758. And the same law obtains in the courts of the United States. Thomas v. West Jersey R. Co., 101 U. S. 71, 25 L. Ed. 950. The case of Harper v. Newport News & Mississippi Valley R. Co., 90 Ky. 359, 14 S. W. 346, decided in September, 1890, cited and relied on by defendant's counsel, in so far as it is opposed to the proposition affirmed in McCabe's Adm'x v. Maysville & B. S. R. Co., and the subsequent cases cited, is disapproved, if...

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1 practice notes
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...519; Hukill v. Maysville, etc., Co., 72. F. 742; Empire Trust Co. v. Egypt Ry. Co., 182 F. 107; Kirk v. Williamson & Pond Creek R. Co., 129 S.E. 922; Swice's Adm'r v. Maysville & B. S. R. Co., 116 Ky. 253, 75 S.W. 278; Axline v. R. Co., 138 F. 169; Epperson v. Refining Co., 22 F.2d (C. C. A......
1 cases
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...519; Hukill v. Maysville, etc., Co., 72. F. 742; Empire Trust Co. v. Egypt Ry. Co., 182 F. 107; Kirk v. Williamson & Pond Creek R. Co., 129 S.E. 922; Swice's Adm'r v. Maysville & B. S. R. Co., 116 Ky. 253, 75 S.W. 278; Axline v. R. Co., 138 F. 169; Epperson v. Refining Co., 22 F.2d (C. C. A......

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