Caruthers v. The Kansas City

• Decision Date: 08 October 1898
• Docket Number: 10650
• Court: Kansas Supreme Court
• Parties: WILLIAM CARUTHERS v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

54 P. 673

59 Kan. 629

WILLIAM CARUTHERS v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY

No. 10650

Supreme Court of Kansas

October 8, 1898

Decided July, 1898.

Error from Bourbon District Court. Walter L. Simons, Judge.

Judgment affirmed.

J. D Hill and W. R. Biddle, for plaintiff in error.

Charles W. Blair, Wallace Pratt, James Black and Ed. C. Gates, for defendant in error.

OPINION

DOSTER C. J.

This was an action for damages for bodily injuries negligently inflicted by the plaintiff in error, upon the line of the Fort Scott, Southeastern & Memphis Railway, many years ago. The facts were presented to the court below in an agreed statement, and in other documentary forms. Summarized, they are that the Fort Scott, Southeastern & Memphis Railway Company and the Missouri River, Fort Scott & Gulf Railroad Company were Kansas corporations, and the first named company leased its line to the one last named, under the following instrument:

"THIS AGREEMENT, Made this ninth day of December, A. D. 1874, by and between the Fort Scott, Southeastern & Memphis Railway Company, party of the first part, and the Missouri River, Fort Scott & Gulf Railroad Company party of the second part, both being corporations existing under the laws of the State of Kansas:

"WITNESSETH, Whereas the said party of the first part has constructed, and is the owner of a railroad track commencing at a point on the main line of the railroad now owned and operated by the said party of the second part about half way between the town of Godfrey and the city of Fort Scott in the county of Bourbon and the state of Kansas, and extending from thence in a general southeasterly direction about six and one-half miles through the vicinity of the coal banks in the said county of Bourbon; and whereas said party of the first part has no rolling stock and is desirous that the said party of the second part shall furnish the necessary rolling stock and operate said road.

"Now therefore, in consideration of the covenants and agreements hereinafter contained on the part of said party of the second part to be performed, said party of the first part hereby covenants and agrees that it will maintain in good order its track and give to said party of the second part for the term of ten years from and after the date of this contract, unless said contract shall be sooner terminated, the exclusive right to run and operate its trains of cars over and upon said railroad track of the said party of the first part free of charge, but for the purpose only of carrying the coal supplied to the said party of the first part for shipment to any point on the line or beyond the northern terminus of the railroad of the said party of the second part.

"And the said party of the second part further agrees that it will not build, cause to be built, or in any manner whatever encourage the building of any other railroad track within the distance of seven miles of the point where the track of the said party of the first part commences.

"And the said party of the second part agrees further that it will with its own locomotive power and cars transport, without unnecessary delay, for a period of ten years, unless the contract shall be sooner terminated, all coal that may be supplied to the said party of the first part for shipment over its line of railroad from any loading station on the line thereof to Kansas City in the state of Missouri, at the rate of sixteen dollars ($ 16.00) per car-load of twelve tons each, and for rates as low to any point on the line north of Fort Scott or at and beyond the northern terminus of the railroad of the said party of the second part as shall be given or allowed to any other person or corporation without the consent of the said party of the first part (excepting, however, two contracts now in force), from the city of Fort Scott or any other station south of Fort Scott to any point north on the line or beyond the northern terminus of its railroad.

"And it is further stipulated and agreed, that if the said party of the first part shall hereafter extend its railroad track to the state line between Kansas and Missouri, or to a greater distance than six and one-half miles from the point where the same shall intersect the railroad of the said party of the second part, then and in that case the said party of the second part will operate the same and shall be entitled to receive, and the said party of the first part agrees to pay, the sum of one dollar per car-load in addition to the price herein agreed to be paid, for all coal transported by the said party of the second part for each and every five miles, and every part thereof, the same is transported over the line of road so extended.

"And it is further agreed by and between the parties hereto, that for the transportation of all freight other than coal, and all passengers, from the City of Fort Scott to the terminus of the six miles of road now built by said party of the first part, and from such terminus to the City of Fort Scott, the said party of the second part shall collect and receive the entire freight moneys and fares, fifty per cent. of which said party of the first part shall be entitled to receive and said party of the second part hereby agrees to pay.

"And it is further expressly agreed that in the event that business along the line of said road of the party of the first part, other than the carrying of coal, should be sufficient to induce the party of the first part to desire to operate its said road, then the said party of the first part shall have the right to cancel and annul this contract, first giving sixty days' written notice of its intention so to do and paying to the said party of the second part all moneys due it for freight advances or otherwise.

"It is also further agreed that in the event of the annulling of this contract and operation of the said road by the said party of the first part, it shall have a right of way for its trains over the track of the said party of the second part between the point of intersection of the two roads and the City of Fort Scott upon such terms as may be reasonable and usual and as may be agreed upon between the parties; and in case the parties are unable to agree upon such terms then each may choose a referee, who in the event of disagreement may select a third to fix such terms, and their decision shall be binding upon both the parties hereto.

"In witness whereof, the said parties have caused these presents to be subscribed, the party of the first part by its president and the party of the second part by its general manager, and have caused their respective corporate seals to be hereunto affixed on the day and year first above written.

FORT SCOTT, SOUTHEASTERN & MEMPHIS RAILWAY COMPANY.

By its President, B. P. MCDONALD.

MISSOURI RIVER, FORT SCOTT & GULF RAILROAD COMPANY.

By GEO. H. NETTLETON, General Manager."

The injuries to the plaintiff in error occurred through the negligence of the employees of the above-named lessee company in the operation of the leased line. Subsequently the Fort Scott, Southeastern & Memphis Railway Company was consolidated with other companies into the Kansas City, Fort Scott & Memphis Railroad Company, the defendant in error. What became of the Missouri River, Fort Scott & Gulf Railroad Company is immaterial. Under the statutes of this State the new or consolidated company became liable for the obligations of the old or constituent companies. Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759, 34 P. 805. For reasons not necessary to explain, the liability of the Fort Scott, Southeastern & Memphis Railway Company to the plaintiff in error was not barred by the Statute of Limitations at the time of the consolidation; nor is the liability of the consolidated company barred, if it ever existed. Did it ever exist? The determination of this question depends upon the interpretation of the lease above quoted, and the effect to be given the statute which authorized it to be made. If, under the statute and the lease, the injury inflicted upon the plaintiff in error was wholly the act of the lessee company, it alone was liable. If on the other hand the injury was wholly or in part the act of the lessor company, it was liable, and its liability has descended upon the defendant in error. The court below held it to have been the act of the lessee company, and in this view we concur.

The lease in question was made under the authority of chapter 92, Laws of 1870, section 2 of which reads:

"Any railroad company in this State existing under general or special laws may lease its road to any other railroad company organized under the laws of this State, or to any railroad company duly organized and existing under the laws of an adjoining state whose line of railroad shall so connect with the leased road as to form a continuous line."

That a railroad company may not lease its line and turn the operation of its road over to another railroad company without legislative authority for so doing may be conceded. It takes to itself a public...