Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/161

 PART II.] ACTS WITHIN THE CORPORATE POWERS. [§ 170. of the other company. 1 And a railroad company is not ex- empted from liability for the loss of goods delivered to it to be carried over a part of its road by the fact that it had previously leased that part to another corporation ; for, as the court said, to have allowed this exemption " would be to authorize them by their own act to divest themselves of the duties and liabili- ties imposed upon them by law, and the performance of which was the consideration upon which their charter was granted, and which thus entered into their contract with the common- wealth." 2 There is good authority for the proposition that by leasing its road a railroad company does not escape liability for injury to goods transported by its lessee, 3 nor for injuries to the les- see's passengers occasioned by the lessee's negligence. 4 On the gence is complete when it appears that the defect existed and caused an injury, lb. As to prima facie evi- dence of negligence, compare Stokes v. Saltonstall, 13 Pet. 181; Railroad Co. v. Pollard, 22 Wall. 3-41. 1 Railroad Company v. Baron, 5 Wall. 90; Pinkerton v. Penu. Trac- tion Co., 193 Pa. St. 229; see Abbott v. Johnstown Horse R. R. Co., 80 N. Y. 27; Feital v. Middlesex R. R. Co., 10!) Mass. 398; Lakin v. Railroad Co., 13 Oreg. 436. 2 Langley v. Boston and Maine R. R. Co., 10 Gray, 103; see McCluer v. Manchester and Lawrence R. R., 13 Gray, 124; Quested v. Newburyport Horse Railroad, 127 Mass. 204; Bower v. B. & S. W. R. Co., 42 Iowa, 546. See State p. Railroad Commissioners, 41 N. J. L. 235. In the absence of statutory provisions, a railroad com- pany after leasing its road remains liable for injuries caused by defects in its tracks at a highway crossing. Freeman v. Minneapolis and St. Louis R'y Co., 28 Minn. 443; but see Ditch ettw. Spuyten Duyvil, etc., R. R. Co., 67 N. Y. 425. So, where the railroad is operated by persons who are trus- tees for the corporation as well as for its bondholders, the corporation may be sued. Grand Tower M'f'g, etc., Co. v. TJllman, 89 111. 244; Wis- consin Cent. R. R. Co. v. Ross, 142 111. 9. Otherwise if the road is in the hands of a receiver. Turner c. Hannibal and St. Jo. R. R. Co., 74 Mo. 602; Heath u. Missouri, etc., R'y Co., 83 Mo. 617; Metz v. Buffalo, etc., R. R. Co., 58 N. Y. 61; Hicks v. International, etc., R. R. Co., 62 Tex. 38. But see Ohio & M. R'y Co. v. Russell, 115 111. 52. As to the power of a railroad corporation to lease or otherwise transfer its franchises, see §§ 125, 132, 304, 305. s Ohio & M. R. R. Co. v. Dunbar, 20 111. 623: Peoria & R. I. R. R. Co. p. Lane, 83 111. 448. 4 Braslin v. Railroad Co., 145 Mass. 64; Singleton v. Southwestern R. R., 70 Ga. 464; see Nugent v. Railroad Co., 80 Me. 62; Little Rock & F. S. Ry. Co. v. Daniels, 68 Ark. 171; Perry v. R. R. Co., 128 N. C. 471; Pierce v. R. R. Co., 124 N. C. 83. To the contrary, Missouri Pac. R'y Co. v. Watts, 63 Tex. 549; Carruthers v. Kansas City etc., R. R. Co., 59 Kas. 629 ; Driscoll o. Norwich, etc., R. Co., 65 Conn. 230; and Pinkerton v. Traction 141