#### BROWN v. ATLANTA AND CHARLOTTE AIR LINE RAILWAY COMPANY.

(Filed December 9, 1902.)

1. NONSUIT — Evidence—Demurrer—Acis 1897, Chap. 109 — Acis 1899, Chap. 181 — Acts 1901, Chap. 591/i — Railroads.

A defendant may at the close of bis evidence make a motion for nonsuit in the nature of a demurrer to the evidence, tbougb bis evidence will not be considered.

2. LEASES — Railroads—Damages—Negligence.

The lessor of a railroad is liable for the negligence of the lessee in the operation of the road.

Cook, J., dissenting in part.

ActioN by J. B. Brown against the Atlanta and Charlotte Air Line Railway Company, beard by Judge A. L. Coble and a jury, at October Term, 1902, of the Superior Court of Mecklenburg County. From a judgment for the plaintiff, the defendant appealed.

Burwell, Walker & Cansler, for the plaintiff.

Geo. F. Bason, for the defendant.

Montgomery, J.

This action was brought by the plaintiff to recover damages for personal injuries sustained by him while in the service of the Southern Bailway Company, the lessee of the defendant, the Atlanta and Charlotte Air Line *456Railway Company. The defendant!, after pleading contributory negligence oaoi the part of the plaintiff, for a further answer and defense, denied its liability on the ground that it had leased the property to the Southern Railway Company, :and was not responsible for the tortious acts of its lessee. The language of that part of the answer was in these words: “12. And for a further answer and defense to said action the defendant says that having leased and conveyed its railroad with all its property, rights and franchises to the lessee, the Southern Railway Co., as alleged in the plaintiff’s complaint, this defendant at the time of the injury to plaintiff had no control nor power over the said railroad, nor over the management or operation of the same. It had deprived itself of its property, rights and franchises with the consent of the State, which had conferred upon it in its charter the right to convey and lease its railroad and all its property, right and franchises granted in its charter, except the franchises to be and exist as a corporation; that in view of the foregoing, as it is advised, it can not be held, and is not liable in law for the result of any conduct or alleged misconduct of its lessee, the Southern Railway Company, towards the plaintiff in its operation of the said railroad. Defendant further says that it is advised that to hold it liable in this action, and to take from it its property in satisfaction of any judgment which may be recovered in the same, will be to deprive it of its property without due process of law, and in violation of the Fourteenth Amendment to> the Constitution of the United States.”

At tire close of the evidence “the defendant moved for a non-suit upon the ground, as it appeared from the evidence, that this action was prosecuted against the defendant, the Atlanta and Charlotte Railway Company, the lessor, for the tort committed by tire Southern Railway Company, its lessee, *457in the operation of its trains over the leased road.” The motion was overruled, a judgment in favor of the plaintiff upon the verdict was rendered, and the defendant appealed.

Each and all of the exceptions, with the exception of the one to the overriding of the motion for non-suit, was abandoned by the counsel of the defendant in this Court.

The plaintiff contends that the Court properly overruled the motion for nonsuit, for the reason that the defendant did not make the motion at the proper time, that is, when the plaintiff had concluded his evidence, and that when it was made, it was after the defendant had introduced its evidence, on the execution of the lease, which was not permissible, a defendant not being allowed to move to dismiss upon testimony introduced by himself. The contention is based on the provision of the Act of 1897, Chap. 109, as amended by the Act of 1899, Chap. 131. The amendment of 1899 has been repealed by the subsequent amendment of 1901, Chap. 594, which latter amendment is substituted for the former one, but, for the purposes' of this discussion, that is immaterial.

The purpose of the motion was not to procure a ruling by the Court upon the right of the defendant to lease its road to the Southern Railway Company, for that had been admitted in the answer; but to have a ruling that the whole evidence showed that the plaintiff was injured while in the service of the lessee, and that it was not legally sufficient to,, establish the plaintiffs claim as against the defendant. If the defendant had proceeded under the statutory provisions above referred to, there could he no doubt that the question would have been properly raised. But was the defendant confined to the procedure marked out in those statutes % . The motion was substantially “a demurrer to the evidence,” and that practice is recognized in many of the States, and always has been with us. The purpose of the practice is to present to the Court, instead of submitting the evidence to the jury, *458such facts as were shown* and as the evidence tended to prove, for the judgment of the Court as to their sufficiency in law to establish the plaintiff’s claim against the defendant. If the burden to make out the case is on the defendant, the plaintiff might demur to the evidence. The usual practice in this State before the enactment of the statutes above referred to, was to proceed as is now provided for, except that now it is discretionary with the defendant whether he will introduce evidence after the motion to dismiss or not; while, before these acts, that matter was discretionary with the Court. But what can be the objection to moving, for the first time, when all the evidence is in, notwithstanding the Act of 1897, Chap. 109, as the proper method of demurring to the evidence? Of course the evidence of the demurrant could not be considered. In the case before us, there was no evidence offered by the demurrant, except on the matter of contributory negligence of the plaintiff. The fact that the Southern Railway Company was' operating the train was admitted in the answer, and exemption pleaded on that account for the defendant. We will consider the motion as a demurrer to the evidence, though not very clearly expressed and only made at the conclusion of all the evidence, the demurrant’s evidence not bearing on the matter embraced in the motion.

But his Honor was correct in his refusing to sustain the demurrer. We will not attempt to add anything further to what has been said by this Court on the responsibility of railroad companies who are lessors, for the negligent acts of their lessees. They are both liable. In Logan v. N. C. Railroad Co., 1 16 N. C., 940, the matter was thoroughly discussed- and decided, and the opinion has been affirmed in numerous cases since. Tillett v. Railroad, 118 N. C., 1031; Benton v. Railroad, 122 N. C., 1007; Perry v. Railroad, 128 N. C., 471; Harden v. Railroad, 129 N. C., 354; 55 L. R. A., 784; 85 Am. St. Rep., 747.

No Error.

*459Cook, J.,

dissenting. I do not concur in that part of the opinion of the Court which holds that the defendant lessor company is responsible for the torts committed by its lessee, the Southern Railway Company.

Under the powers conferred upon defendant company in its charter, it bad the right to lease, and in exercising the same did lease, its railroad and all its property, rights and franchises (except the franchise to be and exist as a corporation) to the Southern Railway Company; and the latter, the Southern Railway Company, was, as such lessee, operating the same on its own account and was the employer of the plaintiff at the time when the alleged injury occurred, and there was no contraetoral relation existing between the plaintiff and defendant. In no jurisdiction (except our own) is it held that the lessor company is liable for the contracts or torts of the lessee company, except, 1st, when the lease is made without legal license or authority (in which case the lessee is deemed to be the agent of the lessor) ; 2d, when the license or authority to lease is coupled with an express provision that the lessor shall be and remain liable for the acts of its lessee.

In the case at bar, the lease was made under express authority granted in the charter of the lessor company, and there is no provision that it shall be liable for the contracts or torts of its lessee.

This doctrine was first held by this Court in Logan v. Railroad Co., 116 N. C., 904, and was approved in a number of cases thereafter. But when it was again presented to this Court for review (for the first time after I became a member of this Court), in Harden v. Railroad Co., and after a thorough study of the principle involved and examination of the decisions bearing upon the question, I became Satisfied that it was unsound in law, and thus gave a full expression of my views in my dissenting opinion, to which I now refer, without a re-discussion of the subject.