State v. Norfolk Southern Railroad

Glark, C. J.,

dissenting: The defendant railroad company was charged Avith violation of section 1, chapter 1 of the Ordinances of the toAvn of Wilson. Said ordinance is as follows:

*110"Railroads and Railroad Trains. Sec. 1. No railroad company, nor engineer in charge of any train of any railroad company, shall run or operate in, or through, the town of Wilson any locomotive or car or train of cars at a higher rate of speed than ten miles per hour; and, every engineer in charge of any train or locomotive running through the town of Wilson shall ring the bell of such locomotive while same is being run and operated through said town; no railroad train or locomotive shall block any street crossing for a longer period than ten minutes, and any engineer in charge of any train or locomotive of any railroad company violating any of the provisions of this section shall be fined not more than $10 for each and every offense: Provided,.nevertheless, that the rate of speed hereinbefore prescribed shall not apply to any train running in or through the said town between the hours of 11 o’clock p. m. and 6 o’clock a. m., but all trains operating between such hours may be run and operated at a reasonable rate of speed.”

On the trial in the recorder’s court the defendant was found guilty, and appealed. In the Superior Court the jury rendered a special verdict as follows: “We, the jurors, find for our verdict the facts to be as follows: That a train of cars belonging to the Norfolk Southern Railroad Company blocked up the street or crossing, as alleged, in the town of Wilson on 27 November, 1913, for more than ten minutes. We find that there was an engineer in charge of said train, his name not being known to us. The above findings were based by us on admissions made by defendant for the purposes of this trial. There was no defendant except the corporation, no charge being made against the engineer, who was in charge of said train.”

Upon consideration of the special verdict, the court held that the defendant corporation was not guilty, because “in its judgment the language of said ordinance made only the engineer and not the corporation guilty.” The court was probably so impressed because the ordinance imposes a fine of not more than $10 on any engineer violating any provisions of this section and does not provide for any specific punishment upon the railroad company.

The imposition of the punishment upon the engineer was not intended to put the sole responsibility upon him, but is additional punishment upon the engineer for a smaller sum than is allowable against the corporation itself under whose orders he is acting.

The fact that no specific punishment is prescribed in the ordinance as to the corporation does not exempt it from liability. Revisal, 3702, provides: “If any person shall violate any ordinance of city or town he shall be guilty of misdemeanor and shall be fined not exceeding $50 0)' imprisoned not exceeding thirty days.”

*111Revisal, 2831 (6), provides: “The word 'person’ stall extend and be applied to bodies politic and corporate as well as to individuals, unless tlie context clearly stows to tte contrary.” S. v. Ice Co., 166 N. C., 369.

Here tte railroad company was forbidden to run or operate its trains at a higher rate of speed than 10 miles an tour or without tte engineer ringing the bell, and it is further provided: “No railroad train or locomotive stall block any street crossing for a longer period than ten minutes.” This made it unlawful for the railroad company ex vi termini to thus block the street with its train or locomotive, and it was liable for that unlawful act tte same as any person; and by Revisal, 3702, suet unlawful act was a misdemeanor and punishable by a fine not exceeding $50 or imprisonment for thirty days. Tte fact that the railroad company could not be imprisoned did not exempt it from' tte fine. S. v. Ice Co., 166 N. C., at p. 369.

Tte power of the town to prescribe suet ordinance is settled under a nearly similar ordinance of New Bern in S. v. R. R., 141 N. C., 736, which has been cited with approval in White v. New Bern, 146 N. C., 450; Staton v. R. R., 147 N. C., 440.

The words of the ordinance, “No railroad train or locomotive stall block any street crossing for a longer period than ten minutes,” make that act unlawful, and necessarily make the owner of'the train or locomotive liable -under. Revisal, 3702. Tte further provision that the engineer is punishable by a smaller fine in no wise exempts tte owner of tte train, who is responsible for such conduct as much so as if it were a “person.” Tte engineer, unless thus named,- would not be liable for the forbidden acts. But the owner would be. If the engineer tad not thus been made liable, no one would question that tte corporation would be liable for running its trains in town limits at the forbidden rate of speed or without ringing the bell, or for blocking the crossing with its trains or cars. Adding liability (to a smaller fine) on the engineer no more relieves the corporation than tte recent act making officers of illegal trusts individually punishable exempts the trusts themselves from punishment for their illegal acts.

It would be inconvenient to take tte engineer out of his cab and delay tte train for his trial or to give bond (if he could do so). On the other hand, if he is allowed to proceed, the name of the engineer might be unknown, for the defendant has several hundred of them, and it would be impracticable to serve the warrant on him in a distant State to which he may be on his way, or even at a remote point in this State, and difficult to prove his identity. It is reasonable to presume that the intelligent authorities of the town of Wilson merely intended to make the engineer responsible, as well as the railroad company, for blocking their streets for more than ten minutes. They could not have intended to *112make the engineer alone responsible, exempting those “higher up” and the railroad company whose cars and engines were allowed by the management to thus deprive the citizens of the use of their own streets. If this, however, is held to be what the town council really did, it practically repeals the ordinance; but they can easily amend their ordinance to express their true meaning beyond dispute, which was to make the engineer liable as well as the railroad company.

The judgment should be reversed, and the court below should impose sentence upon the special verdict in accordance with law.

Hoke, J\, concurs in dissenting opinion.