Macon & Augusta Railroad v. Moses & Mayes , 49 Ga. 355 ( 1873 )

McCay, Judge.

It is quite clear that the plaintiff, without fault of his owm, has been badly hurt by a collision of trains on the defendant’s railroad, caused by somebody’s fault. It is scarcely less clear that the person most to blame for the collision was Mr. Hazlehurst himself, and that he is the president of the road. We think the verdict in this case is sustainable on several grounds. There is sufficient evidence of negligence in the speed with which the principal train was running to authorize the verdict. Over a new road, with no regular schedule, common sense indicates a speed far less than the proof shows for this train.

We think, too, the evidence that the tender and engine were making the trip under the direction of Mr. Hazlehurst, the president, justifies the jury in treating the company as the actual perpetrator of the negligence, notwithstanding it may be true that the construction company had not turned over either the engine or the road-bed to the company. But admitting all that is claimed — admitting that this engine and tender were under the control of Hull & Company — that Mr. Hazlehurst is to be looked upon in this transaction as one of the firm of Hull & Company, and not as president of the road, what, then, is the state of the case ? An engine and tender, under the orders of Hull & Company, were running over the defendant’s road. Hull & Company were exercising the franchise granted by the Legislature to the Macon and Augusta Eailroad — were running a steam car and tender, and carrying passengers over the road of defendant through the country "We are of the opinion that if this be so, third persons have a right to hold the railroad company responsible for any negligence of Hull & Company or their agents.

The running of cars drawn by steam through the country is a franchise, and unless granted by the Legislature, cannot legally be exercised. And if the railroad company to which the Legislature has granted this franchise permit others to use it, the company is responsible to the public for negligence of such persons. It is but a fair presumption that the Legisla-” ture, in granting such a franchise, looked to the capital of the company as a security that the franchise would not be abused. Upon any other view, the company might lease out its priv- ; ileges to third persons, non-resident or not having property, so that the country would have no security against injuries done by the careless or even reckless use of the franchise.

In our judgment, if a railroad company sees fit to permit another person or corporation to run steam cars over its road, it is liable to third persons for damages caused by the negligence of such persons or corporations, just as though the company had itself been running the cars.

This is a new question here, and is to be decided rather upon principle than authority. It cannot, as it seems to us, be presumed that it was within the intent of the Legislature to grant to this corporation this extraordinary privilege of flying through the country, across the public roads, puffing and screaming and rattling so as to disturb the public quiet, and force everybody to get out of their way, with the additional privilege of turning the right over to any other person at its pleasure.

We are clear that the capital to be invested and the corporation created, are to be held responsible for the misuse of the franchise, no matter by whom it is done. The corporation cannot thus escape the obligations implied in its acceptance of the | charter. The charter is a contract between the company and «the public, and as it is the right of the company to demand " that the Courts shall protect it against the infringement of its ■ rights by the public, so it is the duty of the Courts to protect / the public against the misuse of its franchise by the company.

Mr. Pierce, in his American Railroad Law, gives, as the result of the authorities, the rule we have now laid down in reference to the exercise of the right of eminent domain by the contractors for a corporation : See American Railroad Law, 239, and the cases cited.

In the case of Beman vs. Rufford, 1 Simon (N. S.,) 550, and the case of Winch vs. B. and L. R. Co., 13 L. and E., 506, it was held that it was not within the power of a railroad company to lease out to a third party its corporate franchise of running cars, and in the case of the York and Maryland L. Railroad vs. Winans, 17 Howard 39, the Supreme Court of the United States decided that a corporation cannot so turn over its franchise to another corporation as to escape an action of tort for a misuse of the franchise. In that case, Judge Campbell says: “Important franchises were conferred upon the corporation to enable it to provide the facilities for communication and intercourse required for the public convenience. Corporate management and control over these were prescribed, and corporate responsibility for their insufficiency provided as a remuneration for their grant. The corporation cannot absolve itself from the performance of its obligations without the consent of the Legislature.” In that case, the action was by the owner of a patent against the company for infringement of the patentee’s rights in the use of certain cars. The company owning the road and having the franchise was not running cars, but another company. That case is not nearly so strong as this. Here Hull & Company were using the franchise of running steam cars through-the country, across the public roads and by the side of them — an act which is a nuisance unless by Legislative grant, and in the doing of this the damages came to the plaintiff. If the engine and tender were, at the time, under the orders of the president of the road, the case is clear. If under the orders of Hull & Company it was by the consent or permission of the company, and the case stands upon the rule we have discussed. We put the case, in this view, upon the ground that the use of the engine and tender for the purpose set forth in the record, to-wit: to pass over the road with steam cars, from point to point, for the purpose of carrying Mr. Hazlehurst, was a use of the franchise of operating the railroad by steam, and that the corporation is liable, no matter who did it. The case might be diferent if the contractors were in the prosecution of their proper work, as moving dirt, etc., under circumstances, when they were not exercising the franchise of the company in operating the railroad by steam cars, so as to do that which, without the franchise, would be a nuisance.

For these reasons we affirm the judgment.