#### LENA S. WILLIAMS, Administratrix, v. RANDOLPH AND CUMBERLAND RAILWAY COMPANY and SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 26 October, 1921.)

1. Railroads — Lessor and Lessee — Torts.

A railroad company, by leasing its road to another such company for its operation, may not escape liability for the torts of the lessee, however many times the lease may have passed from one to another railroad, and notwithstanding the fact that the present company has absorbed the original lessor railroad company and has become its successor.

2. Same — Statutes.

The mere fact that the lease by one railroad company to another for the purpose of its operation has been approved by statute does not alone change the liability of the lessor road for the torts of its lessee.

3. Same — Equal Liability.

The liability of a lessor road for the torts of its lessee is joint and several in equal degrees, and an instruction of the court to the jury that the lessor would be only secondarily liable is reversible error.

*2684. Railroads — Lessor and Lessee — Absolute Assignments — Leases.

Where a railroad company has contracted with another that the other company shall operate the road for a part of the unexpired term of its lease, requiring an indemnity against liability for its torts and providing for a forfeiture, etc., and that it should make no traffic affiliations with other railroads without its written consent, the contract is one of lease, and not one of absolute assignment.

5. Same — Leases Defined.

An absolute assignment makes no reservation of rent or interest in the property assigned, differing from a lease of the subject-matter, in that the latter creates a lesser estate from the greater, reserves rent, and retains some interest or estate after the termination of the term, and recognizes ownership of the demised property by the lessor.

6. Evidence — Dying Declarations — Wrongful Death — Statutes.

Under the provisions of O. S., 160, amended by the Legislature of 1919, permitting dying declarations in actions to recover damages for a wrongful death, in like manner and under the same rules as such declarations in criminal actions for homicide, are admissible, the dying declarations of the deceased in an action against a railroad company to recover damages for his negligent killing while crossing the defendant’s tracks at a public crossing, that “I am going to die. I am broken all to pieces. I want you to see that they pay you for this. I did not see the train,” are competent, when the attendant circumstances are fully in evidence, without question as to the death having been caused by the defendant’s train at the crossing.

7. Same — Approaching Death — Integral Parts of Full Declaration.

Under the evidence of this case a part of the dying declarations of the deceased that he was broken all to pieces, and he wanted the railroad company to pay, was competent as expressing his conviction that he knew that death was rapidly approaching and had abandoned hope, and as being an integral part of the whole of his declaration.

S. Evidence— Statutes— Change of Procedure— Vested Rights — Rules Changed at Legislative Will.

The amendment of 1919 to C. S., 160, enlarging the rule of the admissibility of evidence of dying declarations to instances of wrongful death, does not change any vested rights, and is applicable in cases where such death was caused before its passage.

9. Railroads — Public Crossing — Negligence—Evidence—Trials.

Defendant’s exceptions to the evidence in this action for the negligent killing of plaintiff’s intestate by the defendant’s train pushed forward by • the locomotive through a cut, without signals or warnings, and where bushes had been permitted by the defendant to grow to obstruct the view of the engineer, are held untenable under the decision of Perry v. R. R., 180 N. C., 296, wherein the rules governing such occasions are stated, and the charge is approved in conformity to that case.

*269Appeal by plaintiff and by each of tbe defendants from Horton, J., at tbe May Term, 1921, of OeaNge.

Tbis was an action for tbe death of tbe defendant at a railroad crossing at Cameron, N. 0., caused by a train wbicb was being operated at tbat time by tbe defendant Eandolpb & Cumberland Eailway Company, lessee of tbe defendant. Botb defendants answered denying negligence and pleading contributory negligence, and tbe defendant Seaboard Air Line Eailway Company denying tbat it was liable as lessor. Tbe jury found upon tbe issues submitted tbat tbe plaintiff’s intestate was killed by tbe negligence of tbe defendants, and tbat tbe plaintiff was not guilty of contributory negligence, and assessed damages.

Tbe court set aside tbe verdict on tbe second issue as against tbe Seaboard Air Line Eailway Company as a matter of law, and entered a nonsuit as to it. Tbe said company having, however, assigned errors on tbe trial to tbe evidence and tbe charge appealed, as did also tbe Eandolpb & Cumberland Eailway Company'and tbe plaintiff.

Williams & Williams, Brogden & Bryant, W. 8. Roberson, and A. L. Broohs for plaintiff.

Walter H. Neal and Murray Allen for defendant Seaboard Air Line Railway Company.

U. L. Spence and R. L. Burns for defendant Randolph & Cumberland Railway Company.

ClaeK, C. J.

In August, 1917, tbe Eandolpb & Cumberland Eailway Company were operating a railroad between Cameron and Carthage in Moore County, wbicb crosses tbe National Highway at right angles just inside tbe corporate limits of tbe town of Cameron at a point where tbe railroad track crosses tbis highway from a deep cut, wbicb was 8 to 10 feet high on tbe north side and 12 to 15 feet high on tbe other. On tbe banks of tbis cut for some distance on each side of tbe railroad bushes, trees and thick growth bad been permitted to grow, obstructing tbe view of tbe approaching train.

Tbe plaintiff’s intestate, driving along tbis highway on 22 August, 1917, in an automobile going south, crossed a bridge north of tbe railroad, and was approaching tbis crossing. Tbe railroad train was approaching tbe crossing from tbe west with a box car at tbe front end nearest tbe crossing, then two or three gondola cars, then tbe passenger car, and tbe engine attached to tbe rear was pushing tbe cars over tbe crossing at a speed of 8 to 10 miles per hour, tbe engine being in tbe cut. There was evidence tbat tbe engineer did not ring tbe bell, blow tbe whistle or give any warning of tbe approach as tbe train emerged from *270the cut on the west and entered on the highway. The train collided with the automobile, and plaintiff’s intestate sustained severe injuries from which he died next day.

On 23 August, 1888, the Carthage Railroad Company leased its roadbed, franchise, etc., to the Raleigh & Augusta Air Line Railroad Company for 99 years. In 1890 the latter company leased the property acquired from the Carthage Railroad Company, together with its own franchise rights, powers and other privileges, and some other property, to W. C. Petty for a term of 97 years. Petty operated the road for some time, and after his death the trustees named in his will, in 1906, leased all the property acquired under his lease as above to the defendant Randolph & Cumberland Railway Company. In 1901 the defendant Seaboard Air Line Railway Company succeeded to the rights of the Raleigh & Augusta Railroad Company.

On 20 September, 1907, the defendant Seaboard Air Line Railway Company and the defendant Randolph & Cumberland Railway Company executed a lease agreement set out in the record releasing Petty’s estate and substituting the defendant Randolph & Cumberland Railway Company as lessee of the property specifically readopting and reaffirming all stipulations and terms of the lease from the Raleigh & Augusta Air Line Railroad Company and Petty, expressly providing that the defendant Randolph & Cumberland Railway Company pay rent direct to the defendant Seaboard Air Line Railway Company, and should make no traffic arrangements or business connection with any other railroad company, except with the written consent of the Seaboard Air Line Railway Company, and that the latter may declare the term forfeited and reenter upon the property, and that the Randolph & Cumberland Railway Company shall indemnify the Seaboard Air Line Railway Company against loss by reason of damage arising out of the operation of the road and return the property to the Seaboard Air Line Railway Company at the expiration of the term.

APPEAL BY THE PLAINTIFF.

This appeal presents for review the action of the judge in setting aside as a matter of law the verdict as to the second issue which held the Seaboard Air Line Railway Company liable, and his instruction to the jury under which they found that the liability of the Seaboard Air Line Railway Company was secondary and entered judgment of nonsuit as to that company.

In these particulars there was error. This Court has repeatedly held that the lessor and lessee of a railroad company are jointly liable for *271the torts of its lessee, and both defendants, the Eandolph & Cumberland Eailway Company and the Seaboard Air Line Eailway Company are liable equally and in the same degree to the plaintiff.

In Aycock v. R. R., 89 N. C., 321, the Court held: “The defendant company leasing the use of its road or permitting the use of it by another company remains liable for the consequences of the mismanagement of the train in charge of the servants of the latter, and the injuries thence resulting to the same extent as if such mismanagement was the act or neglect of its own servants operating its own trains.”

In a very full opinion the Court says in Logan v. R. R., 116 N. C., 947-948, that “the lessor company remains liable for the performance of its public duties to private parties for the nondelivery of goods received by it for delivery, and for all acts done by the lessee in the operation of the road, notwithstanding the lease is authorized by the lessor’s charter. No matter how many leases and subleases may be made, the law attaches to the actual exercise of the privilege of carrying passengers and freight the compensatory obligation to the public to use ordinary care for the safety of both persons and property so transported. On the other hand, the carrier, who simply substitutes with the consent of the State another in his place, cannot establish his own right of exemption from responsibility for the wrongs of the substitute unless he can show, not only explicit authority to lease the property, but to rid itself of such responsibility.”

In Harden v. R. R., 129 N. C., 362, in which case the authorities are collected and approved, the Court said: “If a railroad corporation could relieve itself of liability by leasing, it would follow that leases could be made to another corporation with no tangible assets — as, indeed, the lessee in this case, if a foreign corporation, has none in this State— leaving the travelers and shippers over its line, the general public and its employees alike, without recourse on the property of the corporation which was chartered to operate the road, and which is left in receipt of the rent, which might readily be made high enough to cover the profits. Thus the company would, by the devise of a lease, receive the profits without incurring the liabilities of its business. Among the many eases to the same effect, besides Aycock v. R. R., supra, and Logan v. R. R., supra, and Harden v. R. R., supra, will be found Tillett v. R. R., 118 N. C., 1043; James v. R. R., 121 N. C., 528; Norton v. R. R., 122 N. C., 910; Kinney v. R. R., ib., 961; Benton v. R. R., ib., 1009; Pierce v. R. R., 124 N. C., 93; Perry v. R. R., 128 N. C., 471; S. c., 129 N. C., 333; Raleigh v. R. R., ib., 265; Smith v. R. R., 130 N. C., 344; S. c., 131 N. C., 616; Brown v. R. R., ib., 455; Mabry v. R. R., 139 N. C., 388; Parker v. R. R., 150 N. C., 433; *272 Zachary v. R. R., 156 N. C., 496; S. c., 232 U. S., 258, and there ar'e many others since, among them Mitchell v. Lumber Co., 176 N. C., 645; Hill v. R. R., 178 N. C., 607.

In this case the relationship of lessor and lessee is fully shown by the allegations in the complaint and the admissions in the answer, and the lease contract, as set out in the record in which there are all the elements of a lease, i. e., the creation of a lesser estate from the greater; the reservation of rent, the retention of some interest or estate after the termination of the term and the recognition by the terms of the lease of the ownership of the demised property by the lessor. A lease is distinguished from an assignment in that the latter is a conveyance which transfers the whole and entire estate. An assignment makes no reservation of rent and reserves no interest in the property assigned. In this case the term for which the property was demised is less than the term for which part of the property was acquired from the Carthage Railway Compány, and the terms of the lease create the direct relationship of lessor and lessee, substituting the Randolph & Cumberland Railway Company for the former lessee; the Seaboard Air Line Railway expressly retains absolute control over the operation of the road by the Randolph & Cumberland Railway Company, its lessee, and the right and power to say with whom, how, when, or on what terms the Randolph & Cumberland Railway Company may make traffic arrangements or business connections with any other railroad, thus securing to the lessor the benefit of operating the road, and protects the lessor against payment of taxes levied against the demised property -and franchise rights, requiring the lessee to pay the same.

The lessor by its contract requires that the demised .property shall be returned to it upon expiration of the terms specified, and that during the lease it shall be insured for its benefit, thus recognizing a present interest in the term. The lease demises the “rights, powers, privileges, easements and franchises” of the lessor who also reserves the right to declare a forfeiture of the term and make reentry and retake the property demised upon nonpayment of rent, and the lessee agrees to indemnify the lessor against loss or damage arising out of the operation of the road by the lessee.

The eases relied upon by the defendant — Dunn v. R. R., 141 N. C., 521, and Gregg v. Wilmington, 155 N. C., 18 — differ radically as to the facts from the case at bar, and are not in point.

There being a lease, the court erred in charging the jury that the liability of the Seaboard Air Line Railway Company was secondary. The liability of lessor and lessee is joint and several, and in equal degree,, and there was also error in setting aside the verdict as against the Seaboard Air Line Railway Company as a matter of law.

*273APPEAL BY DEPENDANTS.

In view of wba't bas just been said, tbe appeal of tbe two defendants as to tbe other exceptions should be considered jointly.

Tbe defendants except to tbe evidence as to tbe physical condition of tbe plaintiff’s intestate and tbe dying declarations made by him a short time before bis death. Tbe Legislature of 1919, amended 0. S., 160, which authorizes recovery of damages for death caused by wrongful act, by adding to said section tbe following clause: “In all actions brought under this section tbe dying declarations of tbe deceased as to tbe cause of bis death shall be admissible in evidence in like manner, and under tbe same rules, as dying declarations of deceased in criminal actions for homicide are now received in evidence.”

This amending clause bas been construed in Tatham v. Mfg. Co., 180 N. C., 627, in which tbe power of tbe Legislature to so enact was sustained in an opinion by Mr. Justice Solee. Tbe circumstances under which dying declarations are competent in criminal actions are set out fully in S. v. Mills, 91 N. C., 594, which bas been repeatedly cited and approved since. See citations in Annotated Edition.

Tbe entire dying declaration of plaintiff’s intestate is as follows: “I am going to die. I am broken all to pieces. I want you to see to it that they pay you for this. I did not see tbe train. I did not know that it was anywheres near until my car was going over.” Tbe attendant circumstances were fully set out in evidence, and leave no question as to tbe death of tbe plaintiff’s intestate being caused by tbe collision of tbe train with tbq car which be was driving. He died on tbe following day. That part of tbe declaration to which tbe defendants except, “I am broken all to pieces. • I want you to see to it that they pay you for this,” was competent as expressing tbe conviction of tbe deceased that be knew that death was rapidly approaching, and that be bad abandoned all hope, and as being also an integral part of tbe dying declaration.

It can make no difference that tbe act authorizing tbe admission of dying declarations in such action-was passed after this occurrence. It is a general statute changing tbe rule of evidence, in which no one has a vested interest and which tbe law-making power can extend, alter or repeal at will.

Tbe exceptions to tbe evidence showing tbe condition of tbe track and rails at tbe crossing at tbe time of tbe injury to plaintiff’s intestate cannot be sustained. This evidence tended to show that tbe death was. proximately caused by tbe want of care and tbe negligence on tbe part, of tbe defendants, as alleged in the complaint, in failing to maintain at said public crossing some notice to warn tbe public and failure to remove tbe soil from tbe rails and track and to clear away and keep down tbe *274undergrowth, and other obstructions which concealed from view the railroad track at the point where it crossed the public highway; also failure to sound the whistle or ring the bell or give other suitable warning as the box car in front of said train was being pushed over the crossing at a point where its approach was obscured by the growth of trees and other obstructions, and by pushing the train of cars in front of the engine across the public highway in the town of Cameron, without giving warning, and when those in charge of said train could not see the danger to plaintiff’s intestate and avoid injuring him.

The duty of the respective parties at a crossing have been so often stated by this Court that it would be supererogation to do more than give the summary of the rules governing such occasion as stated by the late Mr. Justice Allen in the recent case of Perry v. R. R., 180 N. C., 295: “If the view of the traveler is obstructed or his hearing an approaching train is prevented, and especially if this is done by the fault of the defendant and the company’s servants’ failure to warn him of its approach, and induced by this failure of duty which had lulled him into security, he attempts to cross the track and is injured, having used his faculties as best he could under the circumstances to ascertain if there is any danger ahead, negligence will not be imputed to him, but to the company, its failure to warn him being regarded as the proximate cause of any injury he received.”

There was evidence fairly submitted to the jury to justify their finding this state of facts, and the charge is almost in the exact language of the Court in Perry v. R. R., which followed the previous decisions in Goff v. R. R., 179 N. C., 216; Shepard v. R. R., 166 N. C., 544; Jenkins v. R. R., 155 N. C., 203; Hinkle v. R. R., 109 N. C., 472.

Upon examination of the entire case, the Court directs that the order striking out the verdict on the second issue must be reversed and the verdict on that issue reinstated; and judgment must be entered in favor of the plaintiff for the amount of the verdict against both defendants, jointly and severally, without any priority as to liability between them.

In appeal by plaintiff, error.

In appeal by defendants, no error.

Adams, J., not sitting.