Balsley v. St. Louis, A.&T.H.R. Co.

• Decision Date: 06 October 1886
• Citation: 119 Ill. 68,8 N.E. 859
• Court: Illinois Supreme Court
• Parties: BALSLEY v. ST. LOUIS, A. & T. H. R. CO.

119 Ill. 68

8 N.E. 859

BALSLEY

v.ST. LOUIS, A. & T. H. R. CO.

Supreme Court of Illinois.

October 6, 1886.

Appeal from appellate court, Third district.

On petition for rehearing. For former opinion, see 6 N. E. Rep. 474.

Geo. M. Stevens, for appellant.

John T. Dye, for appellee.

SHELDON, J.

This was an action brought by John S. Balsley against the St. Louis, Alton & Terre Haute Railroad Company to recover damages for the loss, in 1881, of a quantity of hay by fire communicated from a freight engine on defendant's railroad, to and through dry grass and weeds on its right of way.

Section 38, c. 114, of the railroad and warehouse act, approved March 1, 1874, (Rev. St. 1874, p. 807,) is as follows: ‘It shall be the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds, or other dangerous combustible material, and for neglect shall be liable to the penalties named,’ double the amount of damages suffered therefrom.

The action was for the breach of this duty. The cause was tried by the court without a jury, and judgment rendered in favor of the plaintiff for $600 and costs, which was reversed by the appellate court for the Third district, and the plaintiff appealed to this court.

In September, 1867, defendant made a lease of its road for 99 years to the Indianapolis & St. Louis Railroad Company, a corporation organized under the laws of Indiana; the lease giving to the latter company for that time, upon the terms and conditions therein set forth, the exclusive right to use, upon said road, any and all locomotives, passenger and freight cars, and all other rolling stock and equipments then belonging to it, and the lessee agreed to indemnify the lessor against all claims for loss and destruction, by whatever cause, of any property whatsoever, while under its control.

By an act of the legislature of this state of March 31, 1869, it was provided as follows:

‘Section 1. That the lease of the St. Louis, Alton & Terre Haute Railroad Company, and the property and road thereof, to the Indianapolis & St. Louis Railroad Company, under which the railroad extending from Terre Haute, in the state of Indiana, to East St. Louis, in the state of Illinois, is now operated, be and stand confirmed according to the terms of said lease: provided, however, that nothing in this act shall be construed to release the said lessors from any debt, cause of action, or contract now existing against them.

‘Sec. 2. The said lessees, their associates, successors, and assigns, shall be a railroad corporation in this state, under the said style of the Indianapolis & St. Louis Railroad Company,and shall possess the same or as large powers as are possessed by said lessor corporation, and such other powers as are usual to other corporations.’

The facts are undisputed, and the only question made is whether the aforesaid lease and act of the legislature constitute a defense.

It is conceded that, by the law of this state, railroad corporations are liable for injuries by the wrongful acts of any lessee or other person, done in the exercise, by its permission, of any of its franchises. But it is insisted that this liability for the acts of others is limited to wrongs done by them while in the performance of acts which they would have had no right to perform except under the charter of the company sought to be made liable, where they are to be regarded, with reference to the public, as the servants and agents of such company; that the act of the legislature here created a new corporation, and conferred upon it franchises which thereby became its own, and independent of the lease, so that the negligence complained of occurred in the performance of an act performed in the lessee company's own right, and not under the charter, nor as the servant or agent of defendant, wherefore there is no ground for its liability; and the case of West v. St. Louis & T. H. R. Co., 63 Ill. 545, is supposed to sustain this view. That case does point out a distinction as to the liability of a railroad corporation for acts of its lessees or contractors, where the acts are done in the exercise of a franchise granted to the corporation, or are not done in the exercise of such a franchise; but it does not, we think, go to the length of being a warrant for holding the nonliability of the defendant in this case. The reason for holding a railroad company responsible for the performance of all the duties and obligations imposed upon it by its charter, or the general law of the state, while it is being operated by a lessee, does not, we conceive, rest upon the narrow ground alone of the latter being in the exercise of a franchise which belonged to the former, and in so acting is to be held as the servant or agent of the lessor corporation. In consideration of the grant of its charter, the corporation undertakes for the performance of duties and obligations towards the public, and there is a matter of public policy concerned that it should not be relieved...