Chesapeake &. O. Ry. Co v. Westinghouse

Citation123 S.E. 352
CourtSupreme Court of Virginia
Decision Date12 June 1924
PartiesCHESAPEAKE &. O. RY. CO. v. WESTINGHOUSE, CHURCH, KERR &. CO., Inc. HINES, Director General of Railroads. v. SAME.

Error to Circuit Court of City of Richmond.

Actions by the Chesapeake & Ohio Railway Company and Walker D. Hines, Director General of Railroads, respectively, against Westinghouse, Church, Kerr & Co., Inc. Judgments for defendant, and plaintiffs bring error. Affirmed.

D. H. & Walter Leake and Sherlock Bronson, all of Richmond, for plaintiffs in error.

Munford, Hunton, Williams & Anderson and Wirt P. Marks, Jr., all of Richmond, for defendant in error.

PRENTIS, J. [1] These cases were heard together and upon the same testimony. They are actions of assumpsit for the use of an engine and expenses of its operation, theroad being under federal control during part of the period involved. A jury was waived, and all questions of law and fact were sub-milled to the judge of the trial court, so that, where the evidence conflicts upon any material point, the judgment of the trial court on the facts will bo given the same weight as if it were the verdict of a jury. F. W Stock & Sons v. Owen, 129 Va. 261, 103 S. E. 587.

Ignoring the conflicts in the testimony which have been determined in favor of the defendant, the pertinent facts are these:

Westinghouse, Church, Kerr & Co., Inc., hereinafter called the contractors, entered into a contract with the United States government for the construction of embarkation facilities at Newport News during the World War. Large quantities of material for use in such construction had arrived over the lines of the Chesapeake & Ohio Railway Company at Newport News, and there was great congestion there in the railway yard because of this and of other activities there growing out of the war. This congestion is described by all of the witnesses as very great indeed, and the railway company was clearly failing to deliver freight to the consignees within a reasonable time. The shipments here involved were in carloads, and these delayed cars were standing upon the tracks in the congested yard along with a great many cars for other consignees, so that the building operations were greatly impeded by these unreasonable delays in the delivery of such cars.

When the correspondence upon which these actions are based occurred that condition is thus described:

The contractor "experienced more and more difficulty in obtaining the necessary service on the tracks; in other words, the C. & O would have cars in their yard for a week or ten days or two weeks before they would deliver to us on our siding, principally through the lack of, as they put it, train crews or engine facilities or some other thing, so that we had very many conferences with Mr. Ford [superintendent of terminals at Newport News and later general superintendent at Newport News] with a view of eliminating this condition, and he finally stated to me that the only possibility of their being able to make these deliveries of material to us in time to avoid delays in the construction work would be by assigning to us a locomotive. Meantime we had had about a thousand cars received up to that time and a large part of the cars were buried in the storage tracks in the C. & O. yards. * * * "

Under these conditions, after personal interviews, these letters passed:

"Newport News, Va., September 28, 1917. "Chesapeake & Ohio Railroad Co., Newport News, Va.

"Attention Mr. Ford. Supt. of Terminal. 1892-6.

"Gentlemen: Referring to our conversation with you to-day, we believe the switching prob lem is getting so heavy on account of the work at the various sites that it would be advisable for you to assign us an engine and crew on your usual basis, billing us for cost of operation as you may elect.

"We would appreciate it if you would arrange for this engine and crew at the earliest possible moment, and also advise us if there is anything we can do towards helping out in furnishing a crew for this engine.

"Yours very truly,

"Westinghouse. Church, Kerr & Company,

"Alfred W. Bowie. Engineer in Charge."

To which Mr. Ford replied September 29th thus:

"Gentlemen: Tour letter of the 28th inst. under file 1892-6, with respect to providing an engine and crew to take care of your business at the various camp sites.

"Beg to state that this engine will be assigned to your work, commencing Monday night, and you will be billed for the use of the engine and crew, together with the cost of supplies, repairs, etc., plus ten per cent."

Side tracks for the delivery of carload shipments had been constructed from the main line of the railroad company into the ramps which were being constructed. The contractor employed A. C. Quarles, a man of 28 years' railroad experience, who had been in the employment of the railway company, and for 17 years had acted as yard-master at the Richmond yards and put under him 8 men, also their employees. At that time the conditions with the railway company at Newport News were such that apparently it was not only not able to deliver the cars, but was also unable to keep the records of the arrival and location of the cars for the various consignees. Under the direction of Quarles, these employees of the contractor were stationed in the yards and required to locate the cars consigned to the contractor, and place tags or placards on them, indicating the siding upon which they were to be placed. The engine which, according to the claim of the railway company, was thus "rented" to the contractor, and according to the claim of the contractor was thereby "assigned" to it, was used to...

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6 cases
  • Seward v. Insurance Company
    • United States
    • Virginia Supreme Court
    • March 20, 1930
    ...of the exceptions which have been recognized by any of the authorities to which our attention has been directed. Chesapeake & O. Ry. Co. Westinghouse, 138 Va. 647, 123 S.E. 352; McDonough Saunders, 201 Ala. 231, 78 So. 160, 11 A.L.R. 419; Shriner Craft, 166 Ala. 146, 51 So. 884, 28 L.R.A.(N......
  • Seward v. N.Y. Life Ins. Co
    • United States
    • Virginia Supreme Court
    • March 20, 1930
    ...the exceptions which have been recognized by any of the authorities to which our attention has been directed. Chesapeake & O. Ry. Co. v. Westing-house, 138 Va. 647, 123 S. E. 352; McDonough v. Saunders, 201 Ala. 321, 78 So. 160, 11 A. L. R. 419; Shriner v. Craft, 166 Ala. 146, 51 So. 884, 2......
  • Norfolk Tidewater Terminals Inc v. Norfolk & P. Belt Line R. Co
    • United States
    • Virginia Supreme Court
    • March 10, 1938
    ...pay for that service. When once properly placed and thereafter shifted, a switching charge may he imposed. Chesapeake & O. Rv. Co. v. Westinghouse, 138 Va. 647, 64V, 123 S.E. 352. The obligations of a common carrier to "spot" cars in terminals and in private yards is thus stated in Roberts,......
  • Norfolk Terminals v. Norfolk R. Co.
    • United States
    • Virginia Supreme Court
    • March 10, 1938
    ...for that service. When once properly placed and thereafter shifted, a switching charge may be imposed. Chesapeake & O. Ry. Co. Westinghouse, etc., Co., 138 Va. 647, 649, 123 S.E. 352. The obligations of a common carrier to "spot" cars in terminals and in private yards is thus stated in Robe......
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