The herald., 1897-02-27

stitutional provision in question was
adopted.
$50 far as the case at bar is concerned,
1t can have but this application and no
more. 1t would enable the plaintiff in
jured by the negligence of his employer.
the lessee company, to make good his
judgment by appropriate procedure out
of the leased property, but it would not
operate to give the plaintiff, an employe,
of the lessee company. Alright of action
against the lessor company, upon the
fiction that it was his employer.
THE VALIDITY OF A LEASE
Respondent contends that having
made a valid lease of all its railroad
property to the Southern Pacific COM
pany, II Is absolved from all liability to
plaintiff. Upon the part Of the appellant
1t is contended that the lease is without
sanction from the constitution and laws
of the state, and is therefore void. The
question Of the validity or invalidity of
the lease Is thus collaterally presented,
but decision upon it is not necessary to
a determination of the rights of the par
ties hereto. If the lease were made
without legislative sanction, it would be
void, and under all of the authorities
the lessor would continue liable for all
the negligence Of the lessee affecting the
public, the latter being treated as oper-
atirg the road as the mere agent of the
lessor. But, conceding all that respond
ents claim as to the validity of the lease
1t does not follow that respondent is re-
lieved from liability to this plaintiff. The
act which 1t Is claimed affords legisla-
tive authority for the lease in question
Is entitled An act permitting ard au-
thorizing railway and other corpora
tiors organized under the laws of this
state, or of any state or territory Of the
United States Of America. or ary act of
congress of the United States of Ameri-
ca, to do business in this state on equal
terms 1t is found in the statutes OF
1881 at page Fl. No terms of the act af-
ford exemption in any respect to the
lessor company. When a statute au-
thorizing leases contains no clause ex-
empting the lessor from liability it is
well settled that the lessor still remains
liable for an injury resulting from the
negligent omission of duty owed by ii
to the public, such as the proper con-
struction of its road, station houses
etc."
RESPONSIBILITY OF A LESSOR
After citing a number of cases the su-
preme court resumes: "In all cases when
a. valid lease is found Cor, as in this dis
cussion, where 1t Is assumed) the lessor
company owes no duty whatsoever as
an employer to the operatives of the
lessee company. The claim of the rela-
tionship of employer and employe un-
der such circumstances is a false claim
and quantity. 1t does not exist The
responsibility of the lessor company.
when 1t attaches, does not spring from
this relationship, but arises from a fail
ure OF the lessor company to perform its
duty to the public, of which public the
employe of the operating company may
be regarded as one. Thus in those cases
where the injury has resulted to an en-
ploye of the operating company by rea-
son of the negligence of fellow SER
want, or of want of skill and care of the
lessor company in managing the road, or
in negligence in furnishing suitable ap-
pliances, these and kindred matters be-
ing entirely and exclusively within the
control OF the lessee company, for injury
which may result the lessor is in no
way responsible. But when injury has
resulted to an employe of the operatin
company by reason of failure of the
lessor to perform its public duty as in
its failure to construct safe road, as
is here charged, the injured employe
may sue the lessor company as one of
the public for its failure to perform that
duty and not because between himself
and the lessor company the relation of
employe and employer or any relation
OF contractual privity, exists. AS is
said in Nugent VS.. r. r. Co., supra,
where the brakeman of the lessee road
was injured by reason of the defective
construction of the station house by the
charter company. our opinion, therefore,
Is that the plaintiff had the lawful right
as brakeman on the train of the P. & o.
to pass and repass by the Bethlehem
station house of the defendant; which,
therefore, owed duty to him to con-
struct and maintain it's station house
then in such reasonably safe manner
that it's awning would not injure him
while in the performance of his duty
with due care, and that a negligent
breach of that duty by the defendant
having resulted in personal injury to
the plaintiff without fault on his part
he is entitled to maintain this action
therefor
THE SUMMING UP
$50 here the charge against the de-
fendant is that the injury resulted by
reason Of itseeimperfect construction and
maintenance of the rails and track of
its road. The verdict of the jury for
plaintiff is its declaration teiat the
charge was substantiated by the evi-
dence ,and the nature of the omission or
dereliction is such as to entitle the plain
tin to compensation from the defendant
herein for injuries which may have re-
suited to him by reason of it.
1T follows that there is no irrecon-
cllaple conflict between the special f1nd-
ings and the general verdict of the Jury
and the court should, therefore, have
entered Judgment for plaintiff.
The judgment Is reversed and the
cause remanded with Instructions to the
trial court to enter judgment in favor of
pla1ntin an6appellant under the general
verdict of the Jury"