dissenting:
The question whether a railroad company owning a right of way, road-bed and track lawfully leased to another company is liable for damages to a servant of the lessee, injured solely by the negligence of his employer, is one which has not been before presented to this court. The general statements quoted in the opinion of the majority from earlier decisions in this State dealing with the relations of the lessor company to the public and to persons other than servants of the lessee must be limited by the facts appearing in those cases, and should not, therefore, be deemed of controlling importance here.
Authorities in other States are not entirely unanimous. The question was first presented to the Supreme Court of North Carolina in the case of Logan v. N. C. R. R. Co. 116 N. C. 940, where it was said: “A part of the original duty imposed by the charter was to compensate servants in damages for any injury they might sustain, except such as should be due to the negligence of their fellow-servants. The employee is deemed, in law, to contract, ordinarily, to incur such risks as arise from the carelessness of the other servants of the company; but where the lessor company would be liable, if it had remained in charge of the road, to a person acting as its own servant, we see no reason why it should not be answerable to him when employed by the lessee.” This rule has been steadily adhered to by the North Carolina court, and has been re-affirmed in Hardin v. N. C. R. R. Co. 129 N. C. 254, James v. Western N. C. R. R. Co. 121 id. 523, Smith v. Atlanta & C. R. R. Co. (N. C.) 42 S. E. Rep. 139, and Brown v. Atlanta & C. Air Line Ry. Co. (N. C.) 42 S. E. Rep. 911. The only other case to which we have been referred announcing the same doctrine is the case of Macon and Augusta Railroad Co. v. Mayes, 49 Ga. 355. That case, however, has been criticised and weakened by the Supreme Court of that State in later cases, and finally, in the case of Banks v. Georgia R. R. & B. Co. 112 Ga. 655, the liability of the lessor company to the employee of the lessee for an injury caused by the negligence of the lessee is denied wheré the lease is made under legislative authority, although the statute authorizing the lease was without a provision exempting the lessor for the lessee’s negligence, and in discussing the Mayes case it was said: “In that case the company owning the road was held liable for a tort to an employee of the company using the franchise, occasioned by the negligence of his co-employee, but there was no legislative authority for the latter company to use the franchise; indeed,- there was no lease at all. And therein lies the marked distinction between that case and the one in hand.” In the Banks case the earlier decisions of the court are reviewed and discussed, and the conclusion reached denies the liability of the lessor. In the case at bar it is conceded- that the lessor company had lawful right and authority to make the lease of its tracks to the lessee company, so that the case cited from 112 Ga. seems to be fairly in point.
An able discussion of this question is found in E. L. & R. R. R. Co. v. Culberson, 72 Tex. 375, where it is said, discussing the general rule of the liability of the lessor: “The reason for the rule is the protection of the public who need the protection. The passenger and the shipper of goods have no option, but must avail themselves of the services of the lessees, whether the lease is authorized or not. The law will not permit the owner of the road to shirk its duty to them by turning over its road to another company, nor will it permit it to deny its liability where it has allowed such other company, without authority of law, negligently to injure wayfarers over the track or property along the line. There is no privity between the persons injured, in such case, and the operating company. It is not so with an employee who voluntarily enters the service of the latter company with a knowledge of the facts and participates know-ingly in the wrong, if wrong it be. Where, in similar cases, a recovery has been permitted against a lessor, it has usually been allowed upon various considerations of public policy: First, because the franchises granted are in the nature of a personal trust, and sound policy demands, so far as the general public is concerned, that the corporation receiving the grant should be held responsible for the proper execution of the powers granted; and second, for the reason that to deny the responsibility of the lessor would enable a railroad to shirk its responsibility and to injure the public by placing its property under the control of irresponsible parties; and third, because a person who has received an injury at the hands of the operating company, and was ignorant of the relations between that company and the owner of the road, might be at a loss to determine against which to bring his action and thereby placed at a disadvantage in seeking a redress of his wrong's. None of these reasons apply in the case of the servant of a lessee who is injured through the neglect of his employer. He needs no protection as one of the general public, because he can enter the service or not, as he chooses. He is under no compulsion to take employment from an irresponsible company, and he certainly knows whom to sue for a wrong inflicted through his employer’s neglect, for the latter is certainly liable to him in such a case. The reason of the rule which holds the lessor liable fails in case of an employee of the lessee, and we think that to follow it in a case like this would be to give it an arbitrary, and not a reasonable, application.” The same view of the matter is taken in Indiana, Kentucky, Virginia, California, Georgia, and the Federal courts. B. & O. & C. R. R. Co. v. Paul, 143 Ind. 23; Swice v. M. & B. S. R. Co. (Ky. decided June 20, 1903,) 75 S. W. Rep. 278; V. M. Ry. Co. v. Washington, 86 Va. 629; Lee v. S. P. R. R. Co. 116 Cal. 97; Banks v. G. R. & B. Co. 112 Ga. 655; Hukill v. M. & B. S. R. Co. 72 Fed. Rep. 745.
The editors of the American State Reports state their conclusion thus: As to employees of a lessee corporation, the weight of authority, whether the lease is authorized or not, is to the effect that they cannot recover from the lessor for injuries received through the negligence of such lessee or its servants or agents. (58 Am. St. Rep. 155.) In the American and English Encyclopedia of Law, (vol. 23,—2d ed.—p. 785,) after setting out the rule in reference to the liability of the lessor company to the public as it exists in this State, it is said: “The rule of liability which has just been stated does not apply to the lessee’s servants who maybe injured by the lessee’s negligence.”
As the view of the majority has been rejected by every one of the numerous courts in the Union to which it has been presented, except North Carolina, and after having been once adopted by the Supreme Court of Georgia has been there discredited and the case announcing it overruled, we think the language quoted by Mr. Justice Boggs from Elliott on Railroads, to the effect that the weight of authority supports that view, incorrect. The researches of court and counsel in the case at bar certainly do not warrant the conclusion of that author, but, on the contrary, show that every court, save one, has reached the opposite conclusion.
This court has frequently spoken of the lessee company as the agent or servant of the lessor, in discussing the relations of the latter with persons other than the employees of the former, and in a general sense this is a correct view to take of the situation. The lessor, by accepting its charter, assumes the duties of a common carrier, and when by the lease it causes another to assume those duties it becomes liable to the public for their performance in a lawful manner, and the lessee is its agent and servant for the purpose of meeting its obligations in this respect, so far as the public is concerned; but the lessee cannot be said to be the agent or servant of the lessor with respect to a contract with the employee of the former who enters his master’s service moved solely by the inducements contained in the contract itself, and not because he finds that employer operating- its trains over the lines of- a road which he is by the necessities of business or travel impelled to use.
The lessee’s position is different from that'of one who, under a contract with the owning company, is engaged in work which can be carried on only under the charter of the latter. The contractor, in laying the track, is engaged in doing a work which he is specifically directed and required to do by the terms of his contract. The lessee of the track, in operating trains over the same, is enjoying a privilege accorded by the charter to the lessor, but it is not required by the contract, so far as the lessor is concerned, to operate any particular train or do any specific work. The contractor is much nearer to the owning corporation than is the lessee. The contractor is, under the immediate direction and control of the owner, bound to do specific work as required by the contract with the owner, while, so far as any specific work is concerned,—the running of any particular train or the using of any particular engine,—the lessee exercises its own option.
On the principal question, that of the liability of the lessor, the reasoning of the court of last resort of Texas seems unanswerable. As there suggested, the land owner whose real estate adjoins the right of way; the traveler who uses the highway crossing the railroad track; the shipper of freight who must have his goods carried over the leased line; the passenger who finds it necessary to travel over the same line of road, are all brought into such relations as they occupy with the company operating the trains, without their consent. So far as they are concerned the lessor has obtained from the State a charter to operate the trains, and then, without the consent of these persons, has substituted another in its stead to perform the duties and meet the obligations which it assumed by accepting its charter. The public had no voice in making the contract of substitution. They are compelled to deal with the lessee whether they will or not, and an enlightened public policy has therefore made the lessor company liable for all the wrongs visited by the lessee upon the public, which has been compelled to deal with an agency selected by the lessor alone.
The employee of the lessee is in a different category. The making of the lease has not compelled him to enter the employ of the lessee. His relations with the latter result from the contract which he has voluntarily made with it, and not from the fact that his relations with it have been forced upon him by the acts of the lessor company, as is the case with the general public. His rights, as such employee, result wholly from the contract of employment which he voluntarily made, and which he was not obliged, by circumstances resulting from the act of the lessor company, to enter into.
The reasoning of the majority opinion, based upon the consideration of public policy, seems to us entirely untenable. The argument is, that because the public interest requires that the safest appliances should be used by the lessee company,- the lessor company should be held liable for injuries resulting to the servants of the lessee from the negligence of the latter, that the lessor may thereby be induced to require the lessee to provide such appliances. The same reasoning leads to the conclusion that the lessor company should be liable for the wages of the employee, that the most efficient and faithful may be hired; that it should be liable to the builder, that cars and locomotives of the highest grade may be secured. But it has not yet occurred to the creditor of an insolvent lessee seeking a debtor who can pay, to assert any such claim against a lessor company. It is only for the proper exercise of powers conferred by charter, and which can be exercised only under and by virtue of the charter, that the lessor is responsible. Hiring a switchman or purchasing or repairing a locomotive requires the exercise of no such powers. Such things may be done by anyone.
We therefore conclude that a railroad company owning a railroad track which, by a lawful contract, it leases to another, is not liable for damages resulting to the employee of the lessee from the negligence of the lessee alone.
On reason we deem the judgment of the court below wrong, and the great current of authority, as shown by references herein above contained, certainly requires its reversal.