Northern Ohio Traction & Light Co. v. Erie R. Co.

• Decision Date: 03 November 1925
• Docket Number: No. 4362.,4362.
• Citation: 8 F.2d 962
• Parties: NORTHERN OHIO TRACTION & LIGHT CO. v. ERIE R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

8 F.2d 962 (1925)

NORTHERN OHIO TRACTION & LIGHT CO. v. ERIE R. CO.

No. 4362.

Circuit Court of Appeals, Sixth Circuit.

November 3, 1925.

Roy H. Nesbitt, of Akron, Ohio (Mather, Nesbitt & Willkie, of Akron, Ohio, on the brief), for plaintiff in error.

Benjamin D. Holt, of Cleveland, Ohio (Cook, McGowan, Foote, Bushnell & Burgess, of Cleveland, Ohio, on the brief), for defendant in error.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.

DONAHUE, Circuit Judge.

Action was brought in the District Court by the Erie Railroad Company, successor to the rights and interest of the New York, Lake Erie & Western Railroad Company, against the Northern Ohio Traction & Light Company, successor to the Akron Street Railway Company, to recover on a written contract between the New York, Lake Erie & Western Railroad Company and the Akron Street Railroad Company. By the terms of this contract the Akron Street Railway Company agreed, among other things, to pay one-half of the expense incurred by the New York, Lake Erie & Western Railroad Company, for constructing, maintaining, and operating gates, and providing gatekeepers and lights where its tracks cross the tracks of the steam railroad company at grade on East Exchange street in the city of Akron. It appearing that another steam railroad is operating over plaintiff's tracks at this crossing, and is paying one-third of this expense, recovery is asked for but one-third, instead of one-half, of the amount actually expended by plaintiff for this purpose.

The defendant admits the execution of this contract, that the plaintiff is the successor of the New York, Lake Erie & Western Railroad Company, and that defendant is the successor of the Akron Street Railroad Company, but further avers that the contract was wholly without consideration moving to the Akron Street Railway Company or any of its successors, including this defendant. The defendant, by cross-petition, asserts a claim against the plaintiff for $3,720.44, being one-half the money expended by it for necessary repairs and maintenance of this crossing for the mutual benefit of plaintiff and defendant. The amounts claimed by respective parties are not in dispute.

A written waiver of jury was filed, and the cause was submitted to the court upon an agreed statement of facts, from which it appears that, shortly prior to the execution of the contract in suit, the city of Akron granted to the Akron Street Railway Company a franchise to construct and maintain an electric street railway with all necessary poles, wires, and appurtenances, over and upon certain streets in Akron, and particularly upon and along East Exchange street at a point where that street is crossed by the tracks of the steam railroad company.

It is contended upon the part of the Traction & Light Company that, because the...