Carleton v. Railroad

55 S.E. 429, 143 N.C. 43, 1906 N.C. LEXIS 311

• Court: Supreme Court of North Carolina
• Decided: November 13, 1906
• Status: Published

Opinions

OoNWoe, J.,

after stating the facts: That a railroad company which has leased its road-bed, track and rolling-stock to another corporation is liable for tbe torts of tbe lessee has been so frequently decided by this and other courts that it cannot now be considered open to discussion. Aycock v. Railroad, 89 N. C., 321; Logan v. Railroad, 116 N. C., 940; Tillett v. Railroad, 118 N. C., 1031; Norton v. Railroad, 122 N. C., 910 ; Pierce v. Railroad, 124 N. C., 83. That this liability extends to an injury sustained by a passeng'er by the negligence of the servants of the lessee is decided in Tilletfs case, supra.

In Rocky Mount Mills v. Railroad, 119 N. C., 693, it was shown that a number of railroad companies formed an association under the name of the “Atlantic Coast Dispatch.” That bills of lading were issued in the name of and by the said association, by which it undertook to carry freight from Lowell, Mass., to Eocky Mount, N. C. For negligent delay in carrying such freight the consignee sued two roads members of the association. Paircloth, C. J., said: “Upon examination and reflection we are of the opinion that the defendants, and their connecting lines, are jointly liable, -each for the others, on the contract before us, * * * that is to say, that they are engaged in business as partners under the name of the ‘Atlantic Coast Dispatch.’ They are still common carriers, none the less so because they have certain stipulations. Having jointly agreed to conduct the ‘All-Eail Fast Freight Line’ under the name above stated, * * * ‘ and having so informed the public and so contracted with the plaintiff, their true character is fixed by the law according to the nature of their business.”

The demurrer and argument made to sustain it fails ’ to note the allegation “that both defendants operate jointly the line of said railroad from the Salisbury depot to the Salisbury Cotton Mills, and which is a part of the North Carolina Eail-TOad right-of-way,” and the further allegation that the plaintiff’s intestate purchased a ticket of the agent of the lessee of said roads from Norwood to Salisbury. The conductor was the employee of the lessee; and the agents and servants whose negligence is complained of were in the employment of the lessee.

The case presented by the complaint conies to this: Two railroad corporations jointly operating their properties through the agency of a lessee between two points connected by their road-beds and tracks, in the discharge of their duty as common carriers undertake to carry plaintiff’s intestate over their tracks from Norwood to Salisbury. Why should they not be jointly liable for a failure to discharge the duty undertaken in a joint operation and use of their property in the exercise of their franchise ? To hold otherwise would violate elementary principles of law and practically deny to the passenger any remedy. It may be that he could, if so advised, sue each road separately, but as in a case like the one disclosed by the complaint where the negligent acts were continuous and chargeable to the common agent of the defendant’s lessee, who, for the purpose of this'case, must be considered as the defendants themselves, we can see no reason why he may not join them in one action. The underlying principle upon which the decision is based is the liability of the lessor for the acts of its lessee, this being based upon the principle that a railroad company cannot divest itself of its duty to the public, or its consequent liability, by leasing its track or in any other manner permitting its track to be used, by some other corporation.

Eor the purpose of this appeal the relation of the two roads must be construed as a joint undertaking in the discharge of their duty to the public as common carriers, using the lessee as their common agent for that purpose. In this point of view it is immaterial whether we treat the cause of action as for a breach of contractual duty or a tort arising out of a breach of contract. The cause was argued before us principally upon demurrer for misjoinder, and we think it best to refrain from entering into any discussion of the merits of the case as disclosed by the complaint. The principles applicable to the case after the facts shall have been developed on the trial are well settled.

The judgment overruling the demurrer and directing the defendants to answer over must be affirmed.

Affirmed.