
    (71 Hun, 279.)
    DURFEE v. JOHNSTOWN, G. & K. HORSE R. CO.
    (Supreme Court, General Term, Third Department.
    September 15, 1893.)
    Street Railways — Lease op Road—Liability for Negligence of Lessee.
    Where a street-railway company, organized under general laws, leases its road to an individual without legislative authority, it remains liable to a passenger for injuries caused by the negligence of the lessee.
    Appeal from circuit court, Fulton county.
    Action for personal injuries by Martha C. Durfee against the Johnstown, Gloversville & Kingsboro Horse Railroad Company. Plaintiff had judgment, and defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J, and PUTEAM and HERRICK, JJ.
    Aníbal & Murray, (R. P. Aníbal, of counsel,) for appellant.
    J. M. & H. Dudley, (J. A. Dennison, of counsel,) for respondent.
   MAYHAM, P. J.

This action was prosecuted by the plaintiff against the defendant for an alleged injury claimed to have been suffered by the plaintiff by reason of defendant’s alleged negligence in the management of its cars, by which plaintiff was injured. The complaint alleges that the defendant was a domestic corporation owning and operating a horse railroad for the carriage of passengers and freight between the villages of Johnstown and Gloversville, in the county of Fulton; that the plaintiff, at the time of the alleged injury, was a passenger on the cars of the defendant, and had paid the usual fees and charges for transportation; and that while she was such passenger, by the carelessness and negligence of the defendant, its servants and agents, without any negligence on her part, she was severely injured. The answer admits that the defendant was a domestic corporation, with the corporate name of Johnstown, Gloversville & Kingsboro Horse Railroad Company, and the owner of the horse railroad between the villages of Johnstown and Gloversville. The answer, for a second answer or defense, alleges that the horse railroad owned by the defendant was at the time of the commencement of the action, and for more than three years prior thereto had been, operated, managed, and controlled solely by Henry Stoller and Michael R. Van Sickler, as lessees, who for that time had been operating, managing, controlling, and using said horse railroad for carrying passengers, and that said lessees were solely and exclusively liable for all damages by their negligence, or the negligence of their servants or agents, in operating said Johnstown, Gloversville & Kingsboro Horse Railroad.

The defendant alleged in its answer contributory negligence on the part of the plaintiff, tending to produce the injury. On the trial the plaintiff introduced evidence tending to show that she was injured by being thrown to the ground while attempting to alight from the cars of the defendant, by reason of the car being started before she had sufficient time to free herself from it, and several witnesses were examined as to the circumstances under which the alleged injury was inflicted, and tending to support that theory. On the part of the defendant there was evidence which the defendant claims tended to prove, and did prove, that the plaintiff alighted from the car, and was entirely separate from it, before the car was started, and that contention seems to be supported by the testimony of several witnesses. There was therefore such a clear conflict of evidence upon the subject of the cause of the injury as to make it a proper question to be submitted to and passed upon by the jury; and the jury having, under proper instructions from the court, passed upon that question, and found in favor of the plaintiff, their verdict should be upheld, unless it should be found to be unsupported by the evidence, or against clear and decided preponderance of evidence in favor of the defendant. We think the evidence sufficient to support the verdict, and whatever conclusion the court might reach-upon this evidence, as an original proposition, we do not feel authorized to set aside the verdict as against the evidence.

The remaining question is whether the defendant, by its lease to Stoller and Van Bidder, can relieve itself from obligation to the traveling public for injuries inflicted by the negligent management of its railroad. The case does not disclose that this railroad was leased with consent of, or by any authority conferred upon it by, the legislature, and the lease was not executed to a railroad company. The law seems well settled that a railroad company cannot lease its road and franchise to an individual, without the consent of the legislature, so as to relieve it from its obligation to the public; and, when a lease is effected to an individual, the law seems to treat the lessee as the agent of the railroad company, for the purpose of determining controversies between the public and such company. Abbott v. Railroad Co., 80 N. Y. 27; Fisher v. Railroad Co., 34 Hun, 433; Woodruff v. Railway Co., 25 Hun, 246. From the authorities, it would seem to follow that if the plaintiff was injured by the operation of the railroad cars, or by the negligence of the person managing the -same, although such person was employed by the lessee, still their negligence would, in law, be the negligence of the railroad company, and for injuries resulting from such negligence the railroad company is liable. The railroad company, a corporation organized under general laws, having leased its road without legislative authority, remained liable for injuries caused by the negligence of those operating the road. This doctrine is not in conflict with •the doctrine laid down in Woodruff v. Railway Co. In that case the controverted question did not arise between the public and the railroad company, but was a dispute between the railroad company and the lessee; and the court held that in such a controversy the parties to the lease were estopped, as against each other, from denying the validity of their contract. In Beveridge v. Railroad Co., 112 N. Y. 1, 19 N. E. Rep. 489, the question did not arise between the public and the railroad company, on a lease between It and an individual, but in that case one railroad company leased to another, as under the statute they may legally do.

The jury having passed upon the question of the negligence of ‘the defendant’s agent, and the question of the freedom1 of negligence on the part of the plaintiff, and no .exceptions being urged Tiere to the ruling of the judge, either in admitting or rejecting ■evidence, or to his charge, we see no valid reason for reversing .this judgment. Judgment affirmed, with costs. All concur.  