Va. M. Ry. Co v. Wash.

• Decision Date: 06 March 1890
• Parties: Virginia M. Ry. Co. v. Washington.
• Court: Virginia Supreme Court

10 S.E. 927

(86 Va. 629)

Virginia M. Ry. Co.

v.Washington.

Supreme Court of Appeals of Virginia.

March 6, 1890.

Lease or Railkoad—Liability op Lessob.

A railroad company which has, under authority of the legislature, leased its road, and transferred the exclusive possession and control thereof to another company, cannot be held liable for injuries thereon, sustained by a servant of the lessee, by reason of the lessee's negligence.

W.H. Payne, for plaintiff in error. G. A. Mushbach and J. K. It. Norton, for defendant in error.

Fauntleroy, J. This is a writ of error to a judgment of the circuit court of Alexandria city, rendered on the 26th day of September, 1888, in an action of trespass on the case brought in said court by the appellee, George Washington, Jr., plaintiff, against the Virginia Midland Railway Company, defendant. The declaration claims $30,000 damages for injuries alleged to have been inflicted upon the plaintiff, George Washington, Jr., while he was serving the said Virginia Midland Railway Company as a fireman upon one of its freight trains, by the negligence of the servant of the said company, which, on the 23d day of August, 1886, in Orangecoun-ty, Va., caused the train upon which the appellee was so employed at the time as fireman, as aforesaid, to collide with the passenger train of the said company marked on the schedule as " No. 53. " Soon after the institution of this suit in the circuit court of Alexandria city, the said Washington brought a like suit, for the same cause of action, and for the same amount, $30,000 damages, in Orange county, where the accident occurred, against the Richmond & Danville Railroad Company, which suit is now pending in the circuit court of said county. There was a demurrer to the whole declaration, and specially to each count thereof. The circuit court of Alexandria city overruled the demurrer, and compelled the defendant to go to trial. In the progress of the trial, the defendant objected to the introduction of the testimony of the plaintiff until a foundation was laid, and then moved to excludeit upon the ground of total irrelevancy to the case alleged in the declaration, it not only failing utterly to prove the alleged relation of the plaintiff, Washington, to the defendant, Virginia Midland Railway Company, as its employe at the time and place of the accident, and that the said accident or injury was caused, done, or occasioned by the said defendant company, but distinctly and absolutely proving that the said plaintiff was in the employment of the Richmond & Danville Railroad Company, then and there, as fireman upon a train of the said company, and that the injury was done by the said train being collided with another train of the said company, under the management, control, and conduct of another servant or employe of the said Richmond & Danville Railroad Company, viz., the conductor on the said passenger train No. 53. But the court overruled the motion to exclude the said testimony, and not only permitted it to go to the jury, but instructed them that "the defendant could not, by the lease shown in evidence, exonerate itself from the duties and liabilities imposed upon it by law, and that it was the duty of the jury to consider the evidence before them as though the said motion [to exclude] had not been made." To which ruling of the court the defendant excepted. Upon this evidence and this instruction, the jury rendered a verdict for $10,000 damages for the plaintiff, which verdict the defendant moved the court to set aside; but the court overruled the motion, and entered judgment upon the verdict. To this action of the court the defendant excepted, and the case comes upto this court upon the three bills of exceptions to the said rulings of the court.

The exceptions may be all grouped as the demurrer to the declaration, the motion to exclude the testimony of the plaintiff, and the instruction given by the court to the jury. All present the question for this court to decide, viz., the liability of the defendant Virginia Midland Railway Company to respond in damages to the suit of the plaintiff, Washington, for injuries inflicted on him, while he was an employe of the Richmond & Danville Railroad Company, by the negligence of the conductor of another train of the said Richmond & Danville Company, which company had leased the said Virginia Midland Railway, by virtue and authority of an express act of the general assembly of Virginia, for 99 years, and was in the exclusive and absolute operation, possession, management, and control of the same when its own employe, Washington, a fireman upon one of its own freight trains, was run into and injured by another train of its own, under the conduct of another employe of its own, —the conductor of its passenger train No. 53, —without the knowledge or complicity of the Virginia Midland Railway Company, defendant, who, by solemn act of the legislature, had ceased to exist, so far as operating its road, and who had given up its road before this appellee was employed by the Richmond & Danville Railroad Company, and who owned and operated no trains, employed no servants, and had no knowledge of, contract or affinity with, the plaintiff whatever, at any time, or in any way.

We are of opinion that the circuit court erred in not sustaining the demurrer to the declaration, and in not excluding the evidence: and it aggravated the error, to the prejudice of the defendant, by its instruction, which, without defining what were the "duties and liabilities" which the defendant company could not escape by the lease in evidence, virtually told the jury that one of the " duties and liabilities " to the public of the Virginia Midland Railway Company, is to pay damages to the employes and servants of the Richmond & Danville Railroad Company who are hurt by the negligence of the Richmond & Dan-ville Rail road Company, provided the accident occurred...