Sorenson v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 24 June 1918
• Docket Number: 30651
• Citation: 168 N.W. 313,183 Iowa 1123
• Parties: CHRIS SORENSON, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

168 N.W. 313

183 Iowa 1123

CHRIS SORENSON, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee

No. 30651

Supreme Court of Iowa, Des Moines

June 24, 1918

Appeal from Cass District Court.--THOMAS ARTHUR, Judge.

THE appellee permitted the Atlantic, Northern & Southern Railway Company to operate its trains over tracks owned and operated by the appellee. The plaintiff was injured because the licensee road, by negligent operation of one of its trains frightened the horses of plaintiff, and caused them to run away and be injured. The sole question is whether the appellee is liable for such negligence, on part of its said licensee.--Reversed and remanded.

Reversed and remanded.

H. M Boorman, for appellant.

F. W Sargent and B. A. Goodspeed, for appellee.

SALINGER, J. PRESTON, C. J., LADD and EVANS, JJ., concur.

OPINION

SALINGER, J.

I.

The plaintiff seeks to make the defendant liable, upon an allegation that the Atlantic, Northern and Southern Railway Company ran a train at a high and negligent rate of speed on the track of defendant, and that, as the locomotive reached a point about 20 feet from where plaintiff's horse was, the engineer caused a sharp blast of the whistle to be blown, in a negligent and unreasonable manner, and thus frightened the horse, causing it to run away and to be killed, and the plaintiff to be injured. This train was operated by the employees of the Atlantic Railway. Neither defect in machinery nor in roadbed is involved, and the sole question is whether such arrangement in the way of leasing as the defendant may have made with the Atlantic Railway absolves the defendant from responsibility for injury caused by said negligent operation of a train. It may be conceded that the negligence was nothing but negligence at common law. The question remains whether its being no more than that is material.

It will be useful to eliminate certain authorities relied upon by appellant, which, in our opinion, are of no help to him. Bower v. B. & S.W. R. Co., 42 Iowa 546, Railroad Co. v. Brown, 17 Wall. (U.S.) 445, 21 L.Ed. 675, and 1 Elliott on Railroads (2d Ed.), Section 477, we thus view. In the Bower case, the essential point is that if, at the time of the accident, the road is being run in the name of the defendant, and no change in business or management is perceptible to the outside world, such road is liable, though it may in fact have been leased, and be in fact controlled by others. No more than this is determined by Railroad v. Brown, 17 Wall. (U.S.) 445, 21 L.Ed. 675, which the Bower case cites in its support. In Brown's case, the injury was sustained by one riding on a through ticket, issued in the name of the defendant railroad. It is upon this case that Mr. Elliott bases his statement that it has been held by the Supreme Court of the United States that a railroad company which permits another to make joint use of its tracks is liable to the person injured by the negligence of the company to which the permission is granted. And it is as to this holding he says that the weight of authority supports it. McAllister v. Chesapeake & O. R. Co., 198 F. 660, holds no more than that, under the law of Kentucky, a lessor railroad company is not liable for the injury of a trespasser on the track by the negligence of employees of its lessee in operating a train. It has been held a railroad lessor is not released where, despite the lease, he tickets through passengers, and these are injured on a connecting road ( Chollette v. Omaha & R. V. R. Co., 26 Neb. 159 ; Railway Company v. Brown, 84 U.S. 445, 21 L.Ed. 675; Great Western R. Co. v. Blake, 7 Hurl. & N. 987); and that maintenance of a joint depot will not make liability in the lessor for negligent operation by the lessee (Missouri, K. & T. R. Co. v. Jolly, 31 Tex. Civ. App. 512 ; Miller v. West Jersey & S. R. Co., 71 N.J.L. 363 . The effect of these is that the lessor remains liable under conditions which are not presented by this record. Therefore, they are of no help to the appellant. But that some cases wherein the lessor is not held liable are not available to appellant, of course, detracts nothing from his case, if it be the weight of authority that the lessor remains liable in circumstances that may not be differentiated from the ones present in the record at bar. It is not so important that many decisions in which the lessor is held liable do not help the appellant as it is whether the lessor is liable in such a case as appellant has.

II. The question is not whether there are cases in which the lessor is not liable, nor whether the lessee is also liable. The sole question is whether the lessor is liable under the facts of this case. This being so, we are unable to see how appellee is aided by the cases upon which it relies. Arrowsmith v. Nashville & D. R. Co., 57 F. 165, followed in Hayes v. Northern Pac. R. Co., 74 F. 279, is that, where a lease is made without authority from the legislature, the lessor continues liable for all the negligences of the lessee, because, in such case, the latter is treated as the agent of the lessor in operating the railroad. That a void lease will not relieve the lessor from liability, of course, does not establish that the lessor is not liable if the lease is not void.

While appellee concedes it is under charter duty to maintain its road in proper condition, and that De Lashmutt v. Chicago, B. & Q. R. Co., 148 Iowa 556, at 560, 126 N.W. 359, holds that both owner and lessee are liable for injury due to faulty construction, it insists the rule applies only to defective construction. But the rule is not thus exclusive,--or, rather, the De Lashmutt case is not. That both may be held to answer where defective construction causes the injury does not prove they are under no liability for anything but defective construction.

It is thoroughly well settled, and elaborate briefs for the proposition were scarcely necessary, that a lessor of a railroad is not liable to an employee of the lessee's where his employer negligently injures him, unless the injury is due to some defect in construction or maintenance.

In Banks v. Georgia R. & B. Co., 112 Ga. 655 (37 S.E. 992), it is held that a chartered railroad company which, under legislative authority, leased its franchises and tracks to another such company, is not liable for the homicide of an employee of the latter, caused by the negligence of a co-employee. To say nothing of the distinction that here was a total lease, and that this is a tort committed by one employee upon another, this appears in the opinion:

"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 employee of the lessee, resulting from the negligence of a co-employee."

It is the manifest purpose of Sections 2066 and 2039 of the Code to put upon the lessee or licensee the same liability under which the owner rests. The Supreme Court of the United States, dealing with what is now said Section 2066, held, in Chicago & N.W. R. Co. v. Crane, 5 S.Ct. 578, 28 L.Ed. 1064, that a leasing thereunder did not destroy the identity of the lessor; wherefore, a foreign lessor sued in Iowa may not, on suit against the leased road, have a removal to a Federal court.

Section 2039 of the Code of 1897 provides that all of the duties and liabilities imposed by law upon corporations owning or operating railways shall apply to all lessees, as fully as if the latter were expressly named in the law, and that any action which might be brought, or any penalty that might be enforced against such corporation under any provisions of law, may be brought and enforced against such lessee. The utmost that this statute and Section 2066 effect is to make the lessee, as well as the lessor, liable. Because of these statutes, recovery could have been had against the Atlantic road, had it been sued. But, though this settles that the lessee is liable, it in no way determines that the lessor is not liable.

Due, no doubt, to the absence of such statutes as these, it was held, in Sprague v. Smith, 29 Vt. 421, that a lessee is not liable for injury caused solely by the misconduct or negligence of the lessor. It holds further, but not more than that one actually operating a railroad is as liable for such injury, if due to its own negligence, as it would be if it owned the road over which it is running. This would support a claim that the Atlantic Northern is not liable for negligence on part of the defendant, though liable for its own negligence. But it gives no support to a claim that the lessor is not responsible for negligent act of the Atlantic Northern road. Nor does Wasmer v. D. L. & W. R. Co., 80 N.Y. 212, 216, 217, hold to the contrary. Our statutes and all these cases merely settle that the lessee cannot escape liability for injury caused by defective condition of the track, and that, under certain conditions, a lessee may be liable, though it is not the owner of the road upon which it operates. It has no bearing on the claim that creating a license or making a lease will absolve a railroad corporation from responding for the negligent acts of its lessee or licensee.

There are cases holding that, where there is a valid lease, and not a mere running arrangement, with license to use the road, the lessee is, under certain st...