Kansas City Southern Ry. Co. v. St. Louis-San Francisco Ry. Co.
| Decision Date | 13 May 1974 |
| Docket Number | LOUIS-SAN,No. 57511,No. 1,57511,1 |
| Citation | 509 S.W.2d 457 |
| Parties | The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. ST.FRANCISCO RAILWAY COMPANY, Respondent |
| Court | Missouri Supreme Court |
Robert D. Youle, Daniel M. Dibble, Kansas City, for appellant The Kansas City Southern Railway Co., Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, of counsel.
Thomas E. Deacy, Jr., Spencer J. Brown, Deacy & Deacy, Kansas City, for respondent, St. Louis-San Francisco Railway Co.
HIGGINS, Commissioner.
Appeal (taken prior to January 1, 1972) from judgment for defendant and against plaintiff on plaintiff's petition for $155,077.60 damages.
Plaintiff's southbound freight train and defendant's eastbound switch engine collided at a crossing and intersection of rail tracks of the two railways at the 'South Frisco Crossing' in Joplin, Missouri, February 12, 1965. Plaintiff sustained damages of $155,077.60, for which it brought this suit alleging both primary and humanitarian negligence against defendant. Defendant's answer alleged plaintiff's contributory negligence and a defense of contract. Defendant also counterclaimed for damages of $10,000. Plaintiff replied in denial of the contract defense and alleged defendant's contributory negligence.
On December 14, 1888, the parties' predecessors, the St. Louis and San Francisco Railroad Company and the Kansas City, Fort Smith & Southern Railway Company, entered into an Agreement whereby the Frisco gave Southern the right to operate over, upon, and across Frisco's right of way, roadbed, and tracks (the 'South Frisco Crossing') at Joplin, Missouri, in consideration of which Southern agreed to construct and maintain, at its expense, a good and sufficient crossing at the point of intersection.
On May 6, 1960, Frisco and Southern entered into a Supplemental Agreement, supplementing the original Agreement and several intervening agreements, 'covering installation of crossing gates at Pittsburg, Kansas, and installation of crossing gate and automatic interlocking plant at Joplin, Missouri.' It was provided that 'This supplemental agreement shall take effect as of July 7, 1959, and shall continue in effect so long as said gates and interlocking plant are maintained * * * .'
Article I provides that Southern shall, at its own expense, install and maintain four crossing gates, three at crossing in Pittsburg, Kansas, and one at a crossing in Joplin, Missouri.
Article II, 'as a further consideration for the privilege extended to Southern' by Article I, provides that 'Frisco may, at the sole cost and expense of Southern, furnish and install in interlocking plant at the ('South Frisco Crossing') at Joplin, * * * subject, however, to mutual agreement * * * as to when the work shall be performed within four (4) years from the date hereof; it being further understood and agreed that in the event Frisco is unable for any reason to install said automatic interlocking plant within said four (4) year period * * * or if a mutual agreement as to the date of installation * * * shall not be reached * * * during the said four (4) year period, Frisco shall have the right, at Southern's cost and expense, to furnish and install said automatic interlocking plant * * * at any time Frisco may desire to do so after the expiration of said four (4) year period.'
The crossing gates at Pittsburg were installed and placed in operation by Southern July 7, 1959, and have been in operation since. The automatic interlocking plant at 'the South Frisco Crossing' has not been installed.
Article III provides that the supplemental agreement pertains to 'all loss or damage arising upon or adjacent to said crossings, or either of them.' Loss or damage due to the concurring negligence or wrongful acts or omissions of the sole employee or employees of the parties 'shall be borne by each party' as to its own property.
The parties stipulated that the Supplemental Agreement 'if applicable to the collision occurring at the ('South Frisco') crossing * * * shall be construed so as to preclude either party hereto submitting its claim against the other under the Missouri Humanitarian Doctrine and instead requires that if either party recovers against the other it must be on the basis of the other's primary negligence and such party so recovering must be free from contributory negligence. Plaintiff * * * contends that said contract is not applicable to the collision * * * and defendant * * * contends that it is. * * * that the applicability of the contract is a question of law for determination by the Court.'
By supplementary stipulation, the parties agreed the both plaintiff and defendant were guilty of contributory negligence as a matter of law, precluding recovery by either; and that if the court should find the Supplemental Agreement not applicable, plaintiff would submit on the humanitarian doctrine only.
The court determined that the Supplemental Agreement was in full force and effect and applicable to the collision in question; that Article III was controlling as to the legal rights of the parties; that it precluded plaintiff from submitting its humanitarian case; and that the parties were precluded from submitting their primary negligence claims by their stipulated contributory negligence as a matter of law.
Accordingly, the court adjudged that defendant have judgment against plaintiff on plaintiff's petition; and, upon defendant's voluntary dismissal of its counterclaim, adjudged that it be dismissed without prejudice.
The sole question is whether the Supplemental Agreement in evidence was applicable and controlling as to the legal rights of the parties at the South Frisco Crossing in Joplin at which the collision occurred on February 12, 1965. If it was applicable, as found by the trial court, the judgment of dismissal shall be affirmed; if it was not applicable, the judgment shall be reversed to permit plaintiff to submit its humanitarian case.
Appellant contends the agreement is not applicable because the contract is divisible and the applicability of Article III to this crossing at the time of collision is...
To continue reading
Request your trial
-
Snadon v. Gayer
...circumstances and conditions. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262 (268(5-7)).' " Kansas City Southern Ry. Co. v. St. Louis-S.F. Ry. Co., 509 S.W.2d 457, 460 (Mo.1974). See Kerrick v. Schoenberg, 328 S.W.2d 595, 599(3) (Mo.1959); Warnecke v. Rabenau's Estate, 367 S.W.2d 15, 18(3) (......
-
Cedar Point Apartments, Ltd. v. Cedar Point Inv. Corp., 81-2413
...the contract unless "required to do so by plain, unambiguous language or by necessary implication." Kansas City S. Ry. Co. v. St. Louis-San Francisco Ry. Co., 509 S.W.2d 457, 460 (Mo.1974); see 5 S. Williston, supra, Sec. 665. Words of condition, such as "upon condition that" or "provided" ......
-
Juengel Const. Co., Inc. v. Mt. Etna, Inc., 42327
...as such only if unambiguous language so requires or they arise by necessary implication. Kansas City Southern Railway Co. v. St. Louis-San Francisco Railway Co., 509 S.W.2d 457, 460 (Mo.1974); Miran Investment Co. v. Medical West Building Corp., 414 S.W.2d 297, 304 (Mo.1967); Servco Equipme......
-
James E. Brady & Co., Inc. v. Eno
...to the agreement to repay the debt. Missouri law clearly does not favor conditions precedent. See, e.g., Kansas City S. Ry. v. St. Louis-San Francisco Ry., 509 S.W.2d 457, 460 (Mo.1974); Hastings & Chivetta Architects v. Burch, 794 S.W.2d 294, 296 (Mo.Ct.App.1990); Dockery v. Mannisi, 636 S......