Banks v. Georgia R. & Banking Co.

• Citation: 37 S.E. 992,112 Ga. 655
• Parties: BANKS v. GEORGIA R. & BANKING CO.
• Decision Date: 26 January 1901
• Court: Georgia Supreme Court

37 S.E. 992

112 Ga. 655

BANKS v. GEORGIA R. & BANKING CO.

Supreme Court of Georgia

January 26, 1901

Syllabus by the Court.

1. A chartered railroad company, which, under legislative authority, leased its tracks and franchises to another such company, is not liable for the homicide of an employé of the latter, caused by the negligence of a co-employé.

2. Even if the lessor company be liable for such a homicide when caused by a defect in the track of the leased line, the allegations of the petition in the present case failed to show that the track was defective.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by James Banks against the Georgia Railroad & Banking Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Arnold & Arnold, for plaintiff in error.

Jos. B. & Bryan Cumming, for defendant in error.

FISH J.

This was an action proceeding in the name of James Banks, as the administrator of the estate of Fannie R. Thurmond, deceased against the Georgia Railroad & Banking Company, for the tortious homicide of Earl Thurmond, the husband of plaintiff's intestate. The petition alleged that the defendant had leased its track and franchise to the Louisville & Nashville Railroad Company, and that there was no legislative authority exempting the defendant from responsibility for the acts of the lessee company in operating the road; that at the time of the homicide Earl Thurmond was in the employment of, and working for, the lessee company as a car coupler on the line it had leased from the defendant, and that his death resulted from the negligent putting in motion of an engine and cars of the lessee by its engineer, thereby causing the deceased to get his foot caught in a frog in the track, and to be run over and killed; that the frog "was very dangerous, and was negligently allowed to remain unblocked"; and that "not only did the deceased not know of the defective and dangerous condition of said track and frog, but deceased had been in the yard only for a short time, and had not come in contact with this frog; in the exercise of ordinary care, it was not his duty to see or know the condition of this frog and on the occasion of his death it was dark, and the frog was not visible," and, "had it not been for the presence of said defective frog, the homicide would not have occurred"; and that the deceased was wholly without fault. His age, life expectancy, and earning capacity when killed were also alleged. The defendant demurred generally to the petition; and "because the engineer, whose alleged negligence was the proximate cause of the accident, was not an employé of this defendant, but both he and the deceased were employés of another corporation; and, further, because the alleged dangerous and negligent condition of the right of way was not the proximate cause of the injury, and was moreover, known to the deceased."

The charter of the Georgia Railroad & Banking Company, of which the judge took judicial cognizance, authorities it to lease its line of road, but contains nothing exempting it from liability for the acts of the lessee in operating the franchise. The demurrer was sustained generally by the court and the plaintiff excepted. The question is therefore presented for determination whether a chartered railroad company, after leasing its road and franchise by legislative authority to another company, is liable for the tortious homicide of an employé of the lessee company, while the two employés are engaged in operating a train of the lessee's cars on the leased line; there being no statutory exemption absolving the lessor company from such liability. There is great contrariety of judicial opinion in respect to the responsibility to the public of a lessor railroad company for the acts of the lessee's servants in operating the franchise, where the lease is authorized by statute, but without a provision for the lessor's exemption from liability. We apprehend, however, that no case can be found where it is held, in the absence of a statute creating the liability, that a proprietary railroad company which has, by legislative authority, leased its road and franchise, is responsible for a tort to an employé of the lessee resulting from the negligence of a co-employé. In Railroad Co. v. Mayes, 49 Ga. 355, it was held: "Where a railroad company permits other companies or persons to exercise the franchise of running cars drawn by steam over its road, the company owning the road, and to which the law has intrusted the franchise, is liable for any injury done, as though the company owning the road were itself running the cars." In that case the company owning the road was held liable for a tort to an employé of the company using the franchise, occasioned by the negligence of his co-employé; but there was no legislative authority for the latter company to use the franchise; indeed, there was no lease at all. And therein lies the marked distinction between that case and the one in hand. Here the Georgia Railroad & Banking Company had express authority in its charter to lease its road. The case of Jones v. Railroad Co., 66 Ga. 558, is exactly in line with the case under consideration. There the Georgia Southern Railroad Company, in accordance with the power given in its charter, as well as by the decretal order of a...