Chesapeake & O. Ry. Co v. Jennings

• Decision Date: 08 February 1900
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. JENNINGS.

34 S.E. 986

98 Va. 70

CHESAPEAKE & O. RY. CO.

v.JENNINGS.

Supreme Court of Appeals of Virginia.

Feb. 8, 1900.

BRIDGES—PRIVATE BRIDGES ON PUBLIC HIGHWAY—MAINTENANCE—PERSONAL INJURIES—LIABILITY.

1. Act Gen. Assem. Feb. 27, 1879 (Acts 1878-79, p. 119), authorized a canal company to transfer its works to defendant railroad company by contract, and gave the circuit court of the city of Richmond exclusive jurisdiction of all suits in respect to the contract, and required the board of public works to be joined as a party to such suits. Held, that the circuit court of the city of Richmond did not have exclusive jurisdiction of an action against defendant for injuries caused by its failure to maintain a public bridge on the canal company's property, since this was an action of tort, and not an action in respect to the contract.

2. The board of public works was not a necessary party to such action.

3. Where the construction of defendant's work made it necessary that a bridge be erected on a public highway, the fact that the bridge was erected by lawful authority, and was on the public highway, and used by the public, did not exempt defendant from liability for its maintenance and repair, since defendant erected the bridge primarily for its own benefit.

4. In an action for injuries caused by plaintiff's horse stepping into a hole in a bridge over which it was unlawful to ride faster than a walk, it was proper to submit to the jury the question whether plaintiff, in riding over the bridge faster than a walk, was negligent, and, if so, whether such negligence contributed to his injury.

5. In an action for injuries caused by plaintiff's horse stepping into a hole in a bridge erected by defendant in a highway, where the question was whether it was defendant's duty to maintain and repair the bridge, it was not error to refuse a charge requiring the jury to find for defendant unless they believed the bridge was on defendant's land.

Error to circuit court, Fluvanna county.

Action by Felix H. Jennings against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.

H. T. Wickham, Henry Taylor, Jr., and Leake & Leake, for plaintiff in error.

D. Harmon and F. C. Moon, for defendant in error.

CARDWELL, J. This is an action of trespass on the case, brought by Felix H. Jennings against the Chesapeake & Ohio Railway Company to recover damages for an injury alleged to have been sustained by him in consequence of the negligence of the defendant in keeping in repair a certain bridge. The verdict and judgment in the court below were against the defendant for $550 damages, and the case is before us upon a writ of error.

The declaration contains three counts. The first alleges that the defendant owned a strip of land along the James river, in the county of Fluvanna, called its "right of way, " and that at a certain point within the corporate limits of the town of Scottsville there was a bridge, across which was a public highway from Scottsville to the county of Fluvanna, which bridge was on the land of, and owned and operated by, the defendant; that the erection and maintenance of the bridge were rendered necessary by the mode adopted for the construction of the defendant's works, and that it was the defendant's duty to keep said bridge in good order and repair; that it failed so to do, and suffered said bridge to get out of repair; and that in riding across said bridge the plaintiff's horse put his foot in a hole therein and fell, breaking plaintiff's leg.

The second and third counts allege, in addition to the averments in the first count, that the James River & Kanawha Company so constructed its canal and works that said bridge was rendered necessary in order that no obstruction might be occasioned the public use of the highway by the company's works, and that it became the duty of the James River & Kanawha Company to construct and perpetually maintain said bridge, and that, under the acts of the general assembly of Virginia referred to, it was the duty of the defendant, as the successor of the said James River & Kanawha Company, to maintain and keep in repair said bridge, etc.

There was a demurrer to the declaration and to each count thereof, which was overruled, and this action of the circuit court constitutes the defendant's first assignment of error.

The act of the general assembly of February 27, 1879 (Acts 1878-79, p. 119), referred to in the declaration, authorized the James River & Kanawha Company to make sale andtransfer of its works, etc., to the Richmond & Alleghany Railroad Company, by a contract, the terms of which were defined in the act; and, when the sale and transfer were made, this act was incorporated in, and became a part of, the contract Section 3 of the act invested the board of public works with authority to institute all suits necessary for the enforcement of the contract; and section 4 gives the circuit court of the city of Richmond exclusive jurisdiction of all suits in respect to that contract whether brought by the board of public works or others, and the board of public works is declared to be a necessary party to such suits. The provisions of that act are continued in force by section 1327 of the Code, so far as the same has not been carried into effect.

It is contended that this suit is brought upon the theory that the defendant has failed to perform a duty which, under that contract, it owed to the public, viz. the maintenance in good order of a bridge in a public highway; that, if any such duty devolved upon the defendant, it could only have done so by virtue of the contract, and its failure to perform that duty would have been the omission to perform a public duty in respect to the contract, as to which the circuit court of the city of Richmond has exclusive jurisdiction, and therefore the demurrer to the declaration should have been sustained.

This contention is without merit. The suit here is against the defendant as the successor in title to the property, works, and franchises of the James River & Kanawha Company; and sections 3 and 4 of the act referred to in the declaration merely intended to cover actions to enforce the contract for the transfer of the property, works, etc., of the James River & Kanawha Company to its successor, the Richmond & Alleghany Railroad Company, brought by persons who were parties to the contract, or directly interested in its enforcement. It could not possibly have been intended to cover actions for a tort which might thereafter arise for an injury inflicted by the Richmond & Alleghany Railroad Company, or the defendant, its successor in title, upon persons not parties to the contract, or interested in its enforcement. This is not, in any sense, an action to enforce that contract, or "in respect to it." Hence the board of public works would not be a proper party thereto. Nor is the circuit court of Fluvanna county ousted of its jurisdiction of the case by the provisions of the act.

It is further contended that the defendant is absolved from any liability for the injury alleged in the declaration, by reason of the fact that the seventh clause of section 1 of the said act of February 27, 1879, provides that the compliance on the part of the Richmond & Alleghany Railroad Company with the sixth and seventh clauses of that section, as defined therein, "shall be a sufficient compliance with all the conditions on which the franchises of the James River & Kanawha Co. were heretofore granted, " with a proviso which declared, among other things, that nothing contained in that act should release the Richmond & Alleghany Railroad Company from maintaining farm bridges over any portion of the canal not filled up, or from obligation resting upon the James River & Kanawha Company to erect bridges or make earth fillings, and keep the same in repair, where the canal crossed the streets of any city, "if such obligation exists."

A careful examination of the provisions of that act does not sustain the construction that the defendant's counsel contend for. The obligation, if any, to maintain and keep in repair the bridge in question, arises out of the interference by the James River & Kanawha Company with the highway, and not as a condition on which the franchises were granted the company.

It is further argued that the demurrer to the declaration should have been sustained because it discloses that the bridge upon which it is alleged that plaintiff's injury was sustained is in a public highway, and, although the erection of the bridge became necessary by reason of the mode adopted by the James River & Kanawha Company in the construction of its works, it is presumed to be a public...