Monon R. R. v. New York Cent. R. Co., 20601
| Decision Date | 23 June 1967 |
| Docket Number | No. 1,No. 20601,20601,1 |
| Citation | 227 N.E.2d 450,141 Ind.App. 277 |
| Parties | MONON RAILROAD, a Corporation, Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, a Corporation, Appellee |
| Court | Indiana Appellate Court |
M. Elliot Belshaw, Hammond, James H. Hawk, Chicago, for appellant.
Richard O. Olson, Chicago, Owen W. Crumpacker, Harold Abrahamson, Kenneth D. Reed, Richard P. Komyatte, Hammond, for appellee.
The Appellant herein, Monon Railroad, filed an action against the Appellee, New York Central Railroad Company, for alleged damages for money due under a contract dated July 7, 1904, between the parties' predecessors. After the proper issues were closed, the cause was submitted to a jury for trial. At the conclusion of the Appellant's evidence, the trial judge, upon the Appellee's Motion, directed a verdict for the Appellee. It appears that the trial judge rendered judgment upon the jury's verdict in favor of the Appellee.
The Appellant assigns as error the overruling of his motion for a new trial. His motion avers in substance:
(1) The verdict is not sustained by sufficient evidence, and
(2) The verdict was contrary to law, and other specifications of alleged error, which we will consider under the foregoing second specification.
The Appellant's complaint in the record and now before us, omitting the caption and signature, reads as follows:
'Comes now the plaintiff, Monon Railroad, by its attorneys and complains of the defendant, and for cause of action states as follows:
'1. The Plaintiff, Monon Railroad, hereinafter sometimes referred to as 'Monon' is a railroad corporation incorporated and doing business under and by virtue of the laws of the State of Indiana, in and through the Town of Shelby, County of Lake, the State of Indiana.
'2. The defendant, New York Central Railroad Company, hereinafter sometimes referred to as 'Central', is a railroad corporation incorporated under and by virtue of the laws of the State of New York and doing business in Indiana under and by virtue of the laws of the State of Indiana, and runs through the Town of Shelby, the County of Lake, the State of Indiana.
'3. That the plaintiff and the defendant have heretofore entered into agreements with one another, by their respective corporate predecessors and between themselves as they appear on the said documents as they are referred to below, to-wit:
'a. The defendant by its corporate predecessor, the Indiana, Illinois and Iowa Railroad Company, and the plaintiff by its corporate predecessor, the Louisville, New Albany & Chicago Railway Company, entered into an agreement on the 25th day of October, 1882. The subject of this agreement was the terms under which the defendant's corporate predecessor was allowed to cross plaintiff's corporate predecessor's line of railroad in Shelby, Lake County, State of Indiana. The said agreement is marked 'Exhibit A', and attached hereto and hereby made a part hereof.
'b. The defendant by its corporate predecessor, Indiana, Illinois & Iowa Railroad Company, and the plaintiff by its corporate predecessor, the Chicago, Indianapolis and Louisville Railway Company entered into a new agreement on the 7th day of July, 1904. The subject of this contract was again the manner in which the defendant's corporate predecessor was to be allowed to maintain its tracks across plaintiff's corporate predecessor's line of railroad in Shelby, Lake County, State of Indiana. Under this agreement, both parties were to share in the cost of erection and maintenance of a depot and other crossing facilities to insure the safety of the crossing and otherwise for the convenience of the parties respectively, the costs of which were to be shared equally between the two parties. Under this agreement both parties were to pay equal proportions of the pay rolls of employees at the joint station and all supplies for the maintenance and operation of the said depot and interlocking plant were to be furnished by the Chicago, Indianapolis and Louiseville (sic) Railway Company, one half of the same to be billed against the Indiana, Illinois & Iowa Railway Company periodically. A copy of the said agreement is attached hereto and hereby made a part hereof and referred to as 'Exhibit B'.
'c. The defendant by its corporate predecessor, Chicago, Indiana & Southern Railroad Company and plaintiff by its corporate predecessor, Chicago, Indianapolis and Louisville Railway Company, entered into an agreement on the 18th day of November, 1911, the same being expressly declared by its terms to be supplemental to the agreement of the 7th day of July, 1904. This agreement affirmed the 1904 agreement and declared the same to be still in 'full force and effect' except for the modifications made, none of which affect the said joint station. A copy of the said agreement is attached hereto and hereby made a part hereof and referred to as 'Exhibit C'.
'd. The plaintiff by its corporate predecessor, Chicago, Indianapolis & Louisville Railway Company, agreed by letter of December 21, 1918, to Central to assume all the costs and expenses of the joint station at Shelby, Indiana, and to bill half of the same to Central whenever the same should accrue. A copy of the same is attached hereto and hereby made a part hereof and referred to as 'Exhibit D'.
'e. The plaintiff by its corporate predecessor, Chicago, Indianapolis & Louisville Railway Company, subsequently affirmed the said agreement set out in paragraph 3(d) hereof by letter of January 10, 1922, a copy of which is attached hereto and hereby made a part hereof and marked 'Exhibit E'.
'f. Central and Monon entered into an agreement dated the 18th day of July, 1961. This agreemnt modified the interlocking agreement existing at the time of the agreement. The said agreement also expressly recognized the agreements referred to herein as 'A', 'B', and 'C' as being in full force and effect. A copy of the same is attached hereto and hereby made a part hereof and referred to as 'Exhibit F.'
'4. None of the agreements set out in paragraph 3 herein have modified Central's obligation to pay for half the joint station costa and expenses of maintenance wages, etc.
'5. The plaintiff and the defendant shared the costs until October, 1961, during which month Central notified Monon it would, effective November 1, 1961, 'no longer bear any portion of the agency expense at Shelby.'
'6. Between November 1, 1961, and October 7, 1964, Monon continued to perate (sic) the said joint station, closing on October 9, 1964, after obtaining permission to do so by action before the Public Service Commission of Indiana.
'7. Between November 1, 1961, and October 7, 1964, Monon held the joint station open and remained ready willing and able to provide depot facilities for any and all services required or desired by Central. And Monon has at all times performed all of its other duties under the agreements.
'8. Central continued to use the said joint station from and after November 1, 1961, until October 9, 1964, for its railroad purposes in that it maintained operative railroad communications equipment in the said joint station which said equipment was never disconnected.
'9. Central has not paid any bill rendered by Monon for joint station expenses which accrued after November 1, 1961, and which were rendered on a monthly basis within a reasonable time from their accrual for the period between November 1, 1961 and October 9, 1964. Central has, in fact, refused to pay the same upon each billing.
'10. Central has continued to pay all other bills rendered under the agreements referred to as Exhibits 'A', 'B', 'C', 'D', 'E', and 'F' and continued to use the rail crossings and protection thereof which is covered by the said agreements also.
'11. Central is indebted to Monon for and on account of the facts herein set out in that Monon has provided a joint facility and Central has used the same and refused to pay its portion pertaining to the maintenance and expenses of the joint station at Shelby, Lake County, State of Indiana.
'12. The amount for which Central is indebted to Monon, as hereinafter set out in 'Exhibit G', which is hereby made a part hereof, the same being schedule of the bills rendered by Monon to Central for the period between November 1, 1961 and October 9, 1964, is Ten Thousand Five Hundred Twelve and 86/100 Dollars ($10,512.86).
'WHEREFORE, the plaintiff prays that it be given judgment against the defendant in the amount of Ten Thousand Five Hundred Twelve and 86/100 Dollars ($10,512.86) and all and other relief proper in the premises.'
The Appellee's Answer, omitting the caption and signature reads as follows:
'Comes now defendant, New York Central Railroad Company, by its attorneys, and for answer to plaintiff's complaint alleges and states as follows:
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