
    Martha C. Durfee, Resp’t, v. The Johnstown, Gloversville & Kingsboro Horse Railroad Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      File September 15, 1893.)
    
    1. Railroad—Negligence.
    Plaintiff, while a passenger on defendant’s road, was injured, and her evidence tended to show that she was thrown to the ground while attempting to alight by reason of the car being started before she could free hersfelf from it; while defendant’s evidence tended to prove that she alighted from the car and was entirely separate from it before the car started. Held, that there was such a conflict of evidence as to the cause of injury as to make it a proper question to be determined by the jury.
    2. Same—Liability eob acts of lessee.
    Where a railroad company, without legislative authority, leases its road to individuals, the lessees are to be regarded as its agents as between it and the public, and it remains liable for injuries caused by the negligence of such lessees in operating the road.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff at the Fulton county circuit.
    
      Anibal & Murray (R. P. Anibal, of counsel), for app’lt; J. M. & H. Dudley (J. A. Dennison, of counsel), for resp’t.
   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 óf 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 Siclder 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 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 defendants 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 Sickler, 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 eonsent 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. Johnstown, Gloversville & Kingsboro R. R. Co., 80 N. Y., 27; Fisher v. Metropolitan Elevated R. Co., 34 Hun, 433; Woodruff v. Erie Railway Co. and Jewett as Receiver, 25 id., 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. Erie Railroad Company. 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 y. New York Elevated R. R. Co., 112 N. Y., 1; 20 St. Rep., 962, 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 freedom of negligence on the part of the plaintiff, and no exceptions being urged here 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.

Putnam and Herrick, JJ., concur.  