*532OPINION.
BOND, J.Legisiative impairment By statSuteUent (After stating the facts as above).— There is no claim that the judgment in this case is disproportioned to the injuries of plaintiff. The only errors assigned by appellant are those arising upon the defenses se^ UP ^11 the separate answers. First, that the lessor, La. & Mo. R. Ry. Co., is not responsible for the act of its lessee, C. & A. Ry. Co.; second, that the filing of the petition for the removal to the Federal court ousted the trial court of jurisdiction ; third, that plaintiff has no case on the merits.
As to the first of these contentions, the argument of appellant is, that the present action being based on a section of the'statute (R. S. 1909, sec. 3078) which originated in an act of the Legislature approved March 24, 1870 (Laws 1870, p. 89), is not maintainable; because the same Legislature at a prior day, had enacted an amendment of the charter of defendant, whereby it was empowered to lease its property free from any responsibility for the torts or other acts of the lessee (Laws 1870, p. 93), and to permit the present suit under the later act which provided that all corporations of this State leasing their property to a corporation of another State “shall remain liable as if it operated the road itself,” would be to sanction the legislative impairment of the contract between the State and the local defendant, expressed in the aforesaid amendment of its charter.
The answer to this position is, that if amendment of the charter of the local defendant was constitutionally enacted and could be construed to grant said defendant the right to lease its property and exempt itself from the torts of the lessee, yet the later act prescribing that no such leases should relieve the lessor from responsibility, was a valid law in strict ac*533cord with, the constitutional powers of the Legislature at that time, as will be shown.
That said act, now section 3078 .of the revision of 1909, is constitutional, has been adjudged against this particular defendant, when assailed by a different objection. [Dean v. Railroad, 199 Mo. 386; Markey v. Railroad, 185 Mo. 348.] That said act is not subject to the present objection, will appear by the fact that since 1845 and continuously until the adoption of the Constitution of 1865, the Legislature reserved express power to itself, to alter, suspend or repeal at its discretion, the charters of all corporations. [R. S. 1845, chap. 34, art. 1, sec. 7, p. 232; R. S. 1855, chap. 34, see. 7, p. 371.] And thereafter the Constitution of 1865 continued the same control over all corporations by providing that they should not be created by special acts, and requiring them to be formed under general laws, with a proviso that all general and special acts passed pursuant to this section “may be altered, amended or repealed,” and authorizing the Legislature to pass general laws to effectuate these purposes. [Constitution 1865, art. 8, sec. 4; Constitution 1865, art. 4, sec. 27; State ex inf. v. Railroad, 151 Mo. 162; State ex rel. v. Corkins, 123 Mo. 56; State ex rel. v. Railroad, 48 Mo. l. c. 471.]
Under these words of the Constitution any act thereafter passed, original or amendatory, touching the charters of corporations was subject in all respects to future legislative control, and a similar provision was inserted by the Legislature when it passed a general act relating to railroad corporations in 1855. [G. S. 1865, chap. 63, secs. 47, 48.] These constitutional and legislative provisions were in full force at the time of the Act of 1870, which appellant claims amended its charter, and at a later day of the same session when the Legislature enacted the law which appellant insists took away the right given by the former act. *534It follows, that if appellant’s contention is correct in both respects, still the Legislature in so doing’ did not impair any contract between the State and said defendant ; for it only did what it had full power to do under the Constitution and the law then existing.
This undoubted authority possessed by the Legislature to enact the law forbidding railways to lease the property so as to escape liabilities for the acts of the lessee (R. S. 1909, sec. 3038) renders it unnecessary to decide the question presented by respondent that the act under which appellant claims it was empowered to denude responsibility for the future operation of its railroad, by leasing it to its co-defendant, was void, because its title did not conform with the requirements of the Constitution. [State v. Saline County Court, 51 Mo. 350; State v. Callaway County Court, 51 Mo. 395.]
We rule that there is no merit in the assignment of error, that section 3078 of the revision of 1909 is violative of any constitutional rights of the local defendant, and we hold that perforce that section, it is jointly liable with its codefendant, for any actionable tort which has been committed by its codefendant in the operation of the railway leased to it.
II.
Fraudulent Misjoinder of Defendants. From what has been said in the above paragraph, it is evident that there was no fraudulent misjoinder of the lessor residing within this State, and the lessee, residing outside, by the in- ... ,. „ ’ ,. ° " ,, stitutxon of this action against both of them. And consequently the trial court did not err in denying the petition filed therein by the nonresident defendant, to remove this case to the Federal court upon the assumption that it presented a separable controversy. [Railroad v. Dowell, 229 U. S. *535102; Railroad v. Sheegog, 215 U. S. 308; Stotler v. Railroad, 200 Mo. 107.]
Nor can we concur in the view of appellant’s counsel that the record in this case discloses no cause of action in plaintiff. The evidence is undisputed that the train was thrown from the track by the fracture of one of the steel rails while passing over it and transporting plaintiff who was a passenger. Beyond question, this made a prima-facie case for plaintiff which made it the duty of the court to submit the issue of negligence to the jury, despite the fact that appellant introduced evidence tending to show that the rail which broke was of standard size, properly laid and attached to the ties; and that it had been in use less than four years; and according to the testimony of appellant, furnished indication of a fresh break, and disclosed no apparent flaw; and that it had been tested at the factory, and had been observed to be in seemingly good condition by the section foreman while walking over the track and inspecting the same on the day previous to the accident.
This case falls strictly within the rule of res ipsa loquitur, which affords a presumption of negligence as against a carrier whenever an injury is occasioned to a passenger by any defect in its train of cars or railway track which would not ordinarily have occurred had its track and train been kept in the condition of safety prescribed by the calling in which it is engaged. [Norris v. Railroad, 239 Mo. l. c. 715; Price v. Street Railway Co., 220 Mo. 435; Partello v. Railroad, 240 Mo. l. c. 137; 3 Thompson on Negligence, sec. 2809, p. 275.]
In speaking of submitting the case- to the jury where such a presumption of negligence exists, it is said by a learned text-writer:
“The very nature of this presumption is such that it takes the question of the negligence of the defend*536ant to the jury in all cases. It requires him to explain the accident consistently with the conclusion of due care on his part; and whether he succeeds in doing so is necessarily a question of fact for the jury. The judge cannot decide that he has done so, without trying a question of fact, passing upon the credibility of witnesses, and deciding that an affirmative proposition of fact has been proved. This cannot be done in .any jurisdiction where the system of trial by jury is properly understood and correctly maintained. Judges who undertake to perform this office in the place of juries, usurp the office of juries, and seize a jurisdiction which, it may well he assumed, has not been committed to them by the Constitution or the laws of an) American jurisdiction, Federal or State.” [3 Thompson on Negligence, sec. 2773, p. 238; Gleeson v. Railroad, 140 U. S. l. c. 435; Patton v. Railroad, 179 U. S. 658, 663, 45 L. Ed. 361; Anthony v. L. & N. R. R. Co., 27 Fed. 724.]
Under the foregoing authorities this case was necessarily one for the jury and since no other errors are assigned by appellant, the finding of the jury is conclusive on this appeal. The judgment is affirmed.
All concur.