Brown v. Atlanta & C. Air Line Ry. Co.

• Citation: 42 S.E. 911,131 N.C. 455
• Parties: BROWN v. ATLANTA & C. AIR LINE RY. CO.
• Decision Date: 09 December 1902
• Court: United States State Supreme Court of North Carolina

42 S.E. 911

131 N.C. 455

BROWN v. ATLANTA & C. AIR LINE RY. CO.

Supreme Court of North Carolina

December 9, 1902

Appeal from superior court, Mecklenburg county; Coble, Judge.

Action by J. B. Brown against the Atlanta & Charlotte Air Line Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cook J., dissenting.

Notwithstanding the provision of Acts 1897, c. 109, for motion for nonsuit at the end of plaintiff's evidence, such a motion, in the nature of a demurrer to the evidence, may be made by defendant after introducing evidence, his evidence, however not to be considered thereon.

Geo. F Bason, for appellant.

Burwell Walker & Cansler, for appellee.

MONTGOMERY J.

This action was brought by the plaintiff to recover damages for personal injuries sustained by him while in the service of the Southern Railway Company, the lessee of the defendant, the Atlanta & Charlotte Air Line Railway Company. The defendant, after pleading contributory negligence on the part of the plaintiff, for a further answer and defense denied its liability on the ground that it had leased the property to the Southern Railway Company, and was not responsible for the tortious acts of its lessee. The language of that part of the answer was in these words: "(12) And for a further answer and defense to said action, the defendant says that, having leased and conveyed its railroad, with all its property, rights, and franchises, to the lessee, the Southern Railway Company, as alleged in plaintiff's complaint, this defendant, at the time of the injury to plaintiff, had no control nor power over the said railroad, nor over the management or operation of the same. It had deprived itself of its property, rights, and franchises with the consent of the state, which had conferred upon it in its charter the right to convey and lease its railroad and all its property, right, and franchises granted in its charter, except the franchises to be and exist as a corporation. That, in view of the foregoing, as it is advised, it cannot be held, and is not liable in law, for the result of any conduct or alleged misconduct of its lessee, the Southern Railway Company, towards the plaintiff, in its operation of the said railroad. Defendant further says that it is advised that to hold it liable in this action, and to take from it its property in satisfaction of any judgment which may be recovered in the same, will be to deprive it of its property without due process of law, and in violation of the fourteenth amendment to the constitution of the United States." At the close of the evidence "the defendant moved for a nonsuit upon the ground, as it appeared from the evidence, that this action was prosecuted against the defendant, the Atlanta & Charlotte Railway Company, the lessor, for the tort committed by the Southern Railway Company, its lessee, in the operation of its trains over the leased road." The motion was overruled, a judgment in favor of the plaintiff upon the verdict was rendered, and the defendant appealed.

Each and all of the exceptions, with the exception of the one to the overruling of the motion for nonsuit, was abandoned by the counsel of the defendant in this court. The plaintiff contends that the court properly overruled the motion for nonsuit, for the reason that the defendant did not make the motion at the proper time,--that is, when the plaintiff had concluded his evidence,--and that when it was made it was after the defendant had introduced its evidence on the execution of the lease, which was not permissible, a defendant not being allowed to move to dismiss upon testimony introduced by himself. The contention is based on the provision of Acts 1897, c. 109, as amended by Acts 1899, c 131. The amendment of 1899 has been repealed by the subsequent amendment of 1901 (chapter 594), which latter amendment is substituted for the former one, but for the purposes of this discussion that is immaterial. The purpose of the motion was, not to procure a ruling by the court upon the right of the defendant to lease its road to the Southern Railway Company, for that had been admitted in the answer, but to have a ruling that the whole evidence showed that the plaintiff was injured while in the service of the lessee, and that it was not legally sufficient to establish the plaintiff's claim as against the defendant. If the defendant had proceeded...