Harden v. North Carolina R. Co.
| Decision Date | 17 December 1901 |
| Parties | HARDEN v. NORTH CAROLINA R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Rowan county; Brown, Judge.
Action by C. D. Harden against the North Carolina Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Chas Price, F. H. Busbee, and A. B. Andrews, Jr., for appellant.
Overman & Gregory, for appellee.
The plaintiff was a brakeman in the service of the Southern Railway Company (lessee of defendant) on a freight train, and was injured in making a coupling between a box car and the shanty car "with a link and the old style drawhead." The shanty car was not equipped with automatic couplers, nor was the train fully equipped with Janney couplers, or other modern self-coupling devices; and the court charged the jury, citing Greenlee v. Railway Co., 122 N.C. 977, 30 S.E. 115, 41 L. R. A. 399, 65 Am St. Rep. 734 (), as follows: "If you find that the freight train was not fully provided with modern self-acting couplers, and that the plaintiff would not have been injured had the cars been so provided, you will find the first issue 'Yes' and the second issue 'No."' The judge followed the decisions of this court, and, without repeating the arguments therein, it is sufficient to say that we reaffirm our former rulings holding a railroad company responsible for injuries to its employés, which would not have occurred if there had been provided by it those humane devices protecting the lives and limbs of its employés which are in general use. The reports of the United States interstate commerce commission issued by the authority of the federal government show the reduction of many thousands annually in the number of employés killed or maimed in coupling cars since the introduction of automatic couplers (which now is compulsory under the act of congress as to all interstate roads). This should be a sufficient answer to all complaints as to our former ruling. If the lives and limbs of employés can be saved by such provision of improved appliances, public policy and humanity require the courts to exact liability for failure to furnish them.
The principal point made, however, is in the effort to induce this court to overrule a still longer line of decisions which holds this lessor, the North Carolina Railroad Company liable for the acts and defaults of its lessee, the Southern Railroad Company. The charter of the North Carolina Railroad Company (Laws 1848-49, c. 82, § 19) authorizes the company "to farm out its right of transportation over said railroad, subject to the rules above mentioned." There are no other words from which a right to lease the road can be inferred. As at the date of the charter railroads were comparatively new, and the popular idea was that a railroad company was to maintain the roadbed and "farm out" rights of transportation over it, as was the case with canal companies, and is to-day the case with express companies and many "fast freight" and "through lines," it was thought by many that these words did not authorize, and were not intended to authorize, a lease of its entire property, which lease had the effect to take it out of a "state system" running from the mountains to the seacoast under state control, and make it a part of an interstate line running north and south under the control of foreign corporations, to the utter destruction of the intended by the charter of the defendant. The authority to lease, based upon the permission "to farm out its right of transportation," came before this court in State v. Richmond & D. R. Co., 72 N.C. 634, and that expanded construction was sustained by a divided court, Judge Settle writing the opinion, Judge Bynum dissenting in a remarkably able opinion. Judge Rodman did not sit. If it were a new question, this court might possibly hold with Judge Bynum as to the reasonable construction of the meaning of the words "to farm out the right of transportation," but the lessee would rely upon the fact that it took its lease relying upon the construction placed by this court upon the meaning of those words. But it also made its lease subsequent to the decision of this court--often since repeated--that those words did not allow the lessor to rid itself, by any lease made under authority conferred by those words, of liability for any acts of negligence or torts committed by the lessee as to the world, its passengers, or its employés, the latter being held in effect to be simply subemployés of the lessor, employed by its agent for the operation of the road, its lessee. In Aycock v. Railroad Co. (1883) 89 N.C. 321, it had been held (Smith, C.J.) the authorities "fully sustain the proposition that the defendant company leasing the use of its road or permitting the use of it by another company remains liable for the consequences of the mismanagement of the train in charge of the servants of the latter, and the injury thence resulting, to the same extent as if such mismanagement was the act or neglect of its own servants operating its own train"; citing the authorities. In Logan v. Railroad Co., 116 N.C. 940, 21 S.E. 959, this very charter of the defendant company was elaborately considered, and in an able opinion by Mr. Justice Avery, concurred in by the entire court, it was held that no lease made by virtue of the above-cited words (there being no clause of exemption granted to the lessor) would exempt the defendant from liability for the wrongful acts, defaults, or negligence of its lessee; and hence that the lessor company was liable for injuries sustained from the negligence of its lessee by a section hand employed by such lessee. This decision was rendered by this court at February term, 1895, and the lessor and lessee, both aware of the construction placed by the court upon a contract by lessor to "farm out its right of transportation," on August 16th following executed the lease under which the lessee is now operating the defendant's road. Both parties had that decision in view, and provided for the liability of the defendant for all the acts and defaults of its lessee by a stipulation in said lease (which lease is filed as a part of the record in this case) for a deposit of "not less than $175,000 in cash, or its equivalent, to be applied" to the performance of the stipulations in the contract to be performed by the lessee, and among them "to any judgment or judgments recovered in any court of the state or of the United States when finally adjudicated for any tort, wrong, injury, negligence, default, or contract done, made, or permitted by the parties of the second part, its successors, assigns, employés, agents, or servants, for which the party of the first part shall be adjudged liable, whether the party of the first part is sued jointly with or separately from the party of the second part"; and further provides to what agents of the lessee notices of such suits shall be given by the lessor when sued singly, and for the renewal and maintenance of said sum whenever diminished by such application of any part thereof. The lease was made subsequent to the decision of the Logan Case. Both lessor and lessee knew of the continuing liability of lessor under any lease authorized by the words "farm out" as construed by this court, and stipulated in view of such liability, a deposit being put up, to be maintained at a fixed sum, to guaranty the lessor, the defendant herein. If the lease is valid because made subsequent to the decision of a divided court in State v. Richmond & D. R. Co., 72 N.C. 634, it does not lie in the mouth of the lessor to contend that it does not remain liable for all acts of its lessee in the operation of its road under a lease made subsequent to the decision of a unanimous court in Logan v. Railroad Co., 116 N.C. 940, 21 S.E. 959, especially when it has stipulated against loss therefrom by exacting a deposit from its lessee. And in fact the lessor has not complained. This objection has several times been raised in this court, but always, by counsel of the lessee, and ruled upon again and again, always in conformity to the precedents in Aycock's Case, 89 N.C. 321, and Logan's Case, supra. The defendant has never averred any loss, detriment, or probable damage by reason of its being held liable for the acts of its lessee as its agent in the operation of the road. The lessee, the Southern Railway Company, is the only railroad company operating in this state which claims to be a foreign corporation, as we know from the statute incorporating all others, except possibly one other lessee. It has been stated by its counsel in their place here that the Southern Railway Company has "domesticated," but it is unnecessary to discuss here the point which has been decided in Debnam v. Telegraph Co., 126 N.C. 831, 36 S.E. 269. Whether the lessee be a foreign corporation or not, the lessor, when it entered into this lease, knew that by the terms of its charter, as construed by this court, it would remain liable, notwithstanding such lease, for the acts of its lessee. Logan v. Railroad Co., supra, has been cited and approved on this point. Tillett v. Railroad Co., 118 N.C. 1043, 24 S.E. 111; James v. Railroad Co., 121 N.C. 528, 28 S.E. 537, 46 L. R. A. 306; Norton v. Railroad Co., 122 N.C. 937, 29 S.E. 886; Benton v. Same, 122 N. C., at page 1009, 30 S.E. 333; Pierce v. Same, 124 N.C. 93, 32 S.E. 399, 44 L. R. A. 316; Perry v. Railroad Co., 128 N.C. 473, 39 S.E. 27; and City of Raleigh v. North Carolina R. Co. (at this term) 40 S.E. 2,--in most of which cases this defendant was a party. Had Logan's Case not been decided...
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