White v. Norfolk & S.R. Co.

• Decision Date: 16 October 1894
• Citation: 20 S.E. 191,115 N.C. 631
• Parties: WHITE v. NORFOLK & S. R. CO.
• Court: North Carolina Supreme Court

20 S.E. 191

115 N.C. 631

WHITE v. NORFOLK & S. R. CO.

Supreme Court of North Carolina

October 16, 1894

Appeal from superior court, Chawan county; Armfield, Judge.

Action by Frank White against the Norfolk & Southern Railroad Company for assault on plaintiff, while a passenger on defendant's boat, by one of the crew. On the statement of the court that plaintiff could not recover, he took a nonsuit, and appeals. New trial.

It is alleged in the complaint, and admitted in the answer, that defendant was on the 15th of July, 1893, and now is, a corporation duly chartered under the laws of and doing business in North Carolina as a common carrier of passengers and that it did on the date stated, and does now, employ and use, in prosecution of its business, besides its trains and engines, one or more steamboats.

W. M Bond and J. H. Blount, for appellant.

Pruden & Vann, for appellee.

MacRAE J.

The first contention of defendant is that it is in no event liable, because the boat had been chartered by Morris & Ferebee for the occasion, and the contract of carriage was between the last-named parties and plaintiff; and it is found in the case that "the defendant had no control or direction of said excursion, or of said boat, except that it employed the crew as aforesaid." But the defendant is a corporation duly chartered under the laws of North Carolina and doing business as a common carrier of passengers, for the purpose of using not only its trains, but one or more steamboats. One of these steamboats was chartered to Morris & Ferebee. The word "chartered," as here used, means "hired." The defendant however, by virtue of its franchise, was the common carrier, and would have no power to relieve itself of liability to passengers simply by delegating its privilege to others. It is upon the same principle that it has been so often held that, unless there be express authority by statute to a railroad company to lease its line, the company is liable for the negligent acts of its lessee. See 2 Am. & Eng. Enc. Law, p. 756, where many authorities are cited. It will be seen, also, that this boat was hired fully manned by officers and crew in the pay of the defendant. It cannot differ materially from the hiring of a train for the carrying of an excursion, where the contract of carriage is made between the passengers and the hirers under whose direction the excursion is made. In the present case the boat was hired to run from Edenton to Nag's Head, and return, between certain hours. The defendant had no control or direction of the excursion or of the boat, except that it owned the boat and employed the crew. The crew, however constituted the agency by which the boat was run. There might have been a distinction if the naked boat had been let to parties without further stipulation; but here the specific object of the excursion is stated in the contract, and the servants of defendant directed to carry it out. "Hiring a train for an excursion does not excuse the company from liability to the passengers for injury caused by their servants." 2 Redf. Rys. 212. The case of Skinner v. Railway Co., 5 Exch. 786, is cited, where the declaration alleged that the plaintiff, at the request of the defendants, became a passenger in one of their trains to be carried, etc., for reward to them, etc.; that, through the carelessness, negligence, and improper conduct of the defendants the train in which the plaintiff was such passenger struck against another train, whereby the plaintiff was injured. At the trial it appeared that the train in question had been hired of the company by a benefit society for an excursion, the tickets for which were sold and distributed by the treasurer of the society, from whom the plaintiff purchased one, and that the accident was occasioned by the train in which the plaintiff was running against a train standing at the station, it being then dark. One of the points made by defendants was that there was no evidence that plaintiff was a passenger to be carried by defendants for hire. Upon this point, Alderson, B., said: "The company, by giving their tickets to the treasurer of the society to distribute, constitute him their agent to contract with those who take the tickets; at all events, that was a question for the jury."

The test in such a case as the present is whether the defendant abandoned the entire control of its servants, the master and crew of the boat, to the hirers. "If the hirer is vested for the time with the exclusive right to discharge the servants and employ others, he alone is responsible for their default." Shear. & R. Neg. §74, note 1. The defendants hired to H., for a day, a steamer and crew. The crew were...