
    PERRY v. WESTERN NORTH CAROLINA RAILROAD CO.
    (Filed December 17, 1901.)
    1. APPEAL — Former Adjudication — Former Appeal.
    
    An appeal on a point decided on a former appeal is not allowable.
    2. JURY — Judge—Discretion—Challenge.
    A trial judge may excuse a juror because he is related to a witness-.
    3. LEASE — Railroads—Damages—Negligence.
    The lessor of a railroad is liable for the negligence of the lessee in tne operation of the road.
    Montgomery and Cook, J.J., dissenting.
    ActioN b,y J. A. Perry, administrator, against the Western North Carolina Eailroad Company, heard by Judge M. il. Justice and a jury, at August Term, 1901, of the Superior Court of BueKb County.
    T. A. Simpson, a juror, was challenged by plaintiff because he was related to E. E. Simpson, conductor of the train which killed plaintiffs intestate, E. E. Simpson being a witness for the defendant. The Court, in its discretion, excused the juror, to which defendant excepted. Prom a judgment-for the plaintiff, the defendant appealed.
    
      
      Avery & Avery, for tbe plaintiff.
    
      Geo. F. Bason, for tbe defendant.
   Douglas, J.

Tbis case was before us at tbe last term of tbis Court, being reported in 128 N. C., 471. Tbe questions there decided remain tbe law of tbe case, and .can not be re beard under tbe form of a second appeal. Pretzfelder v. Ins. Co., 123 N. C., 164; Shoaf v. Frost, 127 N. C., 306; Wright v. Railroad, 128 N. C., 77; Kramer v. Railway Co., 128 N. C., 269. Tbe case now practically presents tbe same material points tben decided, except tbe error for which a new trial was tben granted. As we see no substantial error in tbe trial of the action, we must affirm tbe verdict.

We see no error in his Honor excusing tbe juror as a matter of discretion. State v. Barber, 113 N. C., 711; State v. McDowell, 123 N. C., 764. In tbe latter case, tbis Court says, on page 768: “Challenge is not given to tbe prisoner that be should have a particular individual on tbe jury, but that be should not have one against whom be bad a valid objection. In other words, be has tbe right to accept or reject, ..but not tbe right to select."

In spite of what we said in our former opinion, the defendant again comes here with an exception to tbe finding of tbe Court of tbe fourth issue in favor of tbe plaintiff. Tbis issue is as follows: “Is tbe defendant answerable for tbe negligence of tbe Southern Railway Company in causing tbe death of tbe plaintiff’s intestate ?” Tbis issue was properly answered in tbe affirmative on tbe record and decision in tbe James case, reported in 121 N. C., 523.

We can only say that we reaffirm that case in every essential particular. We are of opinion that tbe Western North Carolina Railroad Company still exists under its charter as a North Carolina corporation. If it does not so exist, tben it has no legal.existence whatever; and grave questions must arise as to the illegal use of its franchise and the tenure of its easement.

AYhile we are of opinion that the construction of rhc statutes of this State is peculiarly within onr jurisdiction, and especially those creating corporations which have no natural right of existence, we do not think that the case of James v. Central Trust Co., 98 Fed. Rep., 489, tends to sustain any doctrine inconsistent with those laid down by us in the James case.

If this exception is intended to raise the question of the liability of the lessor, we can only repeat what we said before : “That a railroad company leasing its road is liable for the negligence of its lessee in the operation of the road, is well settled in this State.” Aycock v. Railroad, 89 N. C., 321, 330; Logan v. Railroad, 116 N. C., 940; Tillett v. Railroad, 118 N. C., 1031, 1043; James v. Railroad, 121 N. C., 523, 528; Benton v. Railroad, 122 N. C., 1007, 1009; Norton v. Railroad, 122 N. C., 910, 937; Pierce v. Railroad, 124 N. C., 83, 93; Perry v. Railroad, 128 N. C., 471, 473; Raleigh, v. Railroad and Harden v. Railroad, at this term.

The judgment is affirmed.

MONTGOMERY, J.

I dissent on the same ground that I did when the case was on its first hearing — reported in 128 N. C., 471.

Cooic, J., dissents.  