dissenting: The conduct denounced by the statute, Revisal 3844, is “permitting any car, train of cars, or- locomotive to be run on Sunday” between certain hours (with certain exceptions which are matters of defence and which, besides, clearly do not arise on the evidence in this case).
The evidence is uneontradicted that on 19 May, 1907, which was Sunday, before sunset, between 5 and 6 P. I., a solid coal train passed through Wilson on defendant’s road, the engine and tender marked with defendant’s name. It was in evidence by defendant’s witness, W. II. Newell, its Superintendent of Transportation, that at the term of the Court ending Saturday, 18 May, 1907, the defendant had pleaded guilty to two indictments under this statute and a nol pros was entered in another case upon the “agreement” of defendant not to “run its trains on Sunday in violation *476of law.” The same witness testified that the coal in the above train was the property of the defendant, and was being transported to Florence, S. C., for its use. Another witness for defendant, G. B. McClellan, its District Superintendent, testified that this train was made up and sent out of Rocky Mount by E. I). Gordon, local agent, IT. E. Bruffery, train master, E. S. Dodge, chief train dispatcher- and A. E. Mc-Keathan, yard master, who “had charge of the Rocky Mount depot and yard, and the trains sent out from Rocky Mount were made up by these parties.”
Thus there is proof from the defendant that this train running on Sunday, in violation of law, was made up and sent out by the officials charged with that duty.
Upon this evidence, the Court should have charged the jury, “if you believe the evidence, you will find the defendant guilty.” How else could the defendant send out its trains, except by its officials charged with that duty? If the defendant is not responsible for their acts, acting within the scope of their duties, what would make a corporation liable? If they did it, the question of “permitting” it to be done does not arise.
In State v. R. R., 119 N. C., 819, an indictment upon this very statute, where there was no evidence whatever except the fact that the defendant’s freight train was running on Sunday after 9 A. M., the judge charged the jury, “If you believe the testimony the defendant is guilty,” and on appeal Avery, J., speaking for a unanimous Court, found no error.
There has been no change in the statute and no reason is given why a charge which was correct then has become erroneous now.' Upon the above evidence, by the higher officials of the defendant, that the train was sent out from Rocky Mount by the four officials “having charge of the Rocky Mount depot and yard, and the trains sent out from Rocky Mount were made up by these parties,” the jury could draw no other inference, “if they believed the evidence,” than *477that the defendant was guilty. State v. Riley, 113 N. C., 651.
It is true Mr. McClellan adds, “it was the duty of these, parties to have obeyed the order sent them,” which he says was sent by himself, not to send trains out before sunset, and that it was sent out .without his knowledge or consent. Mr. Newell says he wrote Mr. McClellan that “it was out of the question to run any solid coal trains on Sunday, even if there be a congestion. In view of the fact we have additional power to handle the business currently, it should not be necessary to run trains of this nature on Sunday. We have recently had some complication on this account, and I hope you will see that these instructions are enforced.”
But taking the defendant’s own evidence to be true, the instructions were not enforced and the train was permitted to be made up and sent out from Rocky Mount and was run on Sunday by Wilson and on towards Florence. It was “permitted” because the official who could have prevented it and vdio could and should have stopped the train did not do so. State v. Probasco, 62 Iowa, 400; Ter. v. Stone, 2 Dak., 155; Com. v. Curtis, 91 Mass., 266. It was his duty to do so, for he says he was instructed to enforce the order. His failure to do so “permitted” the train to run. The “permitting” the train to run by Newell and McClellan was “permitting” by the company — if their conduct had been all that made the corporation liable. But there was more than permission. There was the wilful act of the company when its four officials at Rocky Mount, “charged with the duty of making up and sending out trains” from that point, sent out this train. Their act was the act of the company. The State cannot be called upon to prove that an act was done by a defendant’s permission when it shows that it was the intentional act of the defendant itself. A corporation acts by its agents. - Their wilful act in the discharge of a duty entrusted to them is the act of the corporation. If they disobeyed an *478imperative order from those “higher up” it was permissive as to those higher officials who did not supervise their department and enforce their orders, but none the less is the company responsible. There is no explanation why the four officials at Rocky Mount should have broken their own rest on Sunday and violated the law by breaking the rest of the engineer and train crew on that holiday, with no possible motive suggested for risking their positions by disobedience of orders. No reprimand or punishment is suggested to have fallen upon these four officials.
Not only did they, in the scope of their powers, send out this train without let nr hindrance from McClellan and Newell (and therefore by their “permitting” it to be done), but the engineer and crew in running the train w7ere acting in their sphere, and under the orders of those charged with the duty of ordering them. Their intentional act, in the scope of their duties, is the intentional act of the company. No “permitting” need be shown when the running was intentional. The train passed through Elm City only by the act of another agent of the company, acting within his sphere in turning the white or safety end of the switch out and permitting the train to pass, and the same is true of the agent at Wilson, and possibly of the agent at Sharpsburg. Stewart v. R. R., 141 N. C., 271.
Thus agent after agent of the defendant company, acting in the scope of his duties, concurred in starting and running this train on Sunday. They did this act, not merely by permission, but the engineer and crew did so under orders, and for the conduct of its agents the defendant is responsible. If there had been injury by the negligence of either one of these numerous agents,, the company would have been liable for that reason. Taking cognizance of the matters and knowledge “acquired by their observation and experience in every day life,” as we hold a jury can do (Wright v. R. R., 127 N. C., 227; Lloyd v. R. R., 118 N. C., 1013; Deans v. *479R. R., 107 N. C., 693) tbis jury might well infer that other and higher officials had cognizance of and caused this train to start and keep on. There must have been reports by telegraph to Wilmington and response. from the office at the headquarters there to avoid collision with other trains. Stewart v. R. R., supra.
As to these two officials, Newell and McClellan, while they testify to having given orders, they do not testify to any effort whatever to put the order in force. The running of the trains, which it was their duty to know of and prevent, without any effort shown on their part to prevent, was “permitting” it, by the corporation,- so far as the conduct of these officials was concerned, who could have stopped it aud did not.
This law was enacted in 1879, nearly 30 years ago, to secure to some part of the employees of railroads a rest for a part — 8 or 9 or 10 hours, according to the season — on the Sabbath day. These employees cannot move to secure their rights under this law with safety to their positions. They are helpless before so great powers as these great corporations can exert unless the law comes to their aid.
This jury from common observation knew that this was not an accidentál train, by mistake run before sunset on that Sunday. It was in evidence before them, in this very case, that the defendant was an habitual criminal in this respect, for at the court ending the day before this train wa3 run the defendant was convicted on two indictments for this offense and a nol pros was entered on a third indictment on defendant “agreeing” to stop “running its trains on Sunday in violation of law.”
The charge of the Court therefore was not error, for, if defendant’s own evidence alone was believed, this train was run by orders of those empowered to send out trains, and by the permission of those who could have stopped it, and did not.