Evansville & S. I. Traction Co. v. Evansville Belt Ry. Co.

• Decision Date: 04 February 1909
• Docket Number: No. 6,478.,6,478.
• Citation: 87 N.E. 21,44 Ind.App. 155
• Court: Indiana Appellate Court
• Parties: EVANSVILLE & S. I. TRACTION CO. v. EVANSVILLE BELT RY. CO.

44 Ind.App. 155

87 N.E. 21

EVANSVILLE & S. I. TRACTION CO.

v.EVANSVILLE BELT RY. CO.

No. 6,478.¹

Appellate Court of Indiana, Division No. 2.

Feb. 4, 1909.

Appeal from Superior Court, Vanderburgh County; L. O. Rasch, Judge.

Action by the Evansville Belt Railway Company against the Evansville & Southern Indiana Traction Company.Judgment for plaintiff, and defendant appeals.Reversed, with instructions.

Stilwell & Kister, for appellant.Iglehart & Taylor, for appellee.

RABB, J.

On July 18, 1892, and prior thereto, the appellee, by virtue of a franchise duly granted them by the proper municipal authorities of the city of Evansville, owned and operated a line of railroad through the said city, and crossing Franklin street, one of the public streets thereof.Subsequent to the granting of said franchise to appellee, and the construction and operation of their said road thereunder, said city duly granted to the Evansville Street Car Company a franchise to construct and operate an electric street car line over and upon said Franklin street; and, in order to fully enjoy their said franchise, it was necessary for said street car company to construct their track across the appellee's railroad track already down.Appellee denied the street car company's right to cross their track at grade, without the assessment and payment of damages, and thereupon, on said July 18, 1892, the two companies entered into the following agreement: “This agreement made and entered into this 18th day of July, 1892, by and between the Evansville Belt Railway Company, a corporation, party of the first part, and the Evansville Street Railroad Company, a corporation, party of the second part, witnesseth: That whereas said first party owns and operates a railroad through the city of Evansville, in the state of Indiana, the main track of which said road crosses Franklin street in the said city of Evansville, and whereas the party of the second part is in the act of constructing and intends to operate an electric railroad in the city of Evansville, Indiana, and desires to cross the said first party's railroad track at the intersection of said track with said Franklin street in the city of Evansville.And whereas, it is mutually agreed by and between the parties hereto upon the terms and conditions herein set out that said second party may cross said first party's track and put down at said points of crossing, regular approved railroad crossing frogs at the intersection of said tracks, respectively, in said Franklin street: Now, therefore, in consideration of the premises, and the consentof the said first party to such crossing, and to the putting down of said crossing by said second party, it is hereby agreed that said second party shall furnish all proper and necessary iron and steel, ties and labor, in and about the construction, maintenance and repairs of said crossing at said point, at its own expense, and without any cost or charge whatever to the first party; said crossing frogs to be made of such pattern and weight of steel as shall be approved by the chief engineer or other proper officer of the first party.The timber on which such frogs are placed to be of such dimension and quality as shall be approved by said engineer.Said second party further agrees at all times to keep said crossing free and unobstructed, and in good order and repair, and up to the grade of the street at said intersection so as not in any way to interfere with the use of said Franklin street, and crossings, by the public or said first party, and conform to all ordinances of said city in such behalf, and whenever necessary to reconstruct or repair, said construction and repairing shall be made under the supervision of the road master of the first part, and shall be made subject to his satisfaction, so far as relates to the track and property of said first party, and in case in the judgment of the road master it should become necessary at any time to make any repairs at said points for the purpose of properly maintaining said crossings, said second party shall make the same to the satisfaction of the road master, upon receipt from him of five (5) days' notice in that behalf, and the work shall be conducted so as not to interfere with the running of trains, and should said second party at any time upon receipt of said notice to make repairs, fail to make said repairs within the time prescribed, said first party may make the same and the said second party agrees to reimburse and repay said first party the costs thereof.*** The second party shall have the right to erect and maintain poles and cross wires upon the right of way of the first party alongside the tracks hereinbefore permitted to be laid on such right of way at the said crossing of the same with said Franklin street for the purpose of carrying the trolley wires of said second party, together with guard wires and anchorages, at such places and in such manner as shall be approved by the chief engineer of the first party, or such other officer as it may elect.The said trolley wires to cross said railroad track of the first party at the intersection of said street at the height of not less than twenty-two (22) feet in the clear above the top of the rails of said first party's track, and the said second party shall at all times maintain said trolley wires at the height above mentioned.In the use of the crossing at the said intersection the cars of the second party shall be brought to a stop at a distance of not less than twenty (20) feet, nor more than one hundred (100) feet from the railroad track of the first party, and shall not pass over said railroad track of the first party until it shall be entirely safe for them to do so; nor shall the same pass over without first receiving proper signal from the conductor or other employé of the said second party; and whenever a street car of the line of said second party's railroad, and a locomotive or train upon the railroad of said first party's railroad be approaching said crossing at the same time, the priority of right in crossing shall always be yielded by the said second party to the said first party.”The appellant is the successor in right and interest to the street car company, first, through the foreclosure and sale of the property and franchise of the street car company, upon a mortgage given to a trustee for the benefit of the bondholders of the said company January 1, 1892, by which the Evansville Electric Railway Company became the owners of the street car lines; and, second, by a deed of transfer from the electric railway company to the appellant.The crossing of the tracks of the two companies became out of repair, and thereupon, pursuant to the terms of the contract, the appellee's road master, on June 27, 1905, gave the Evansville Electric Railway Company, which then owned and operated the street car line, notice to repair the same, which said company failing to do, appellee made the necessary repairs, at a cost of $424.24, and this action was brought to recover from appellant the expenses so incurred by appellee.

The suit is based upon the contract which is made a part thereof, coupled with averments showing that both companies are common carriers of passengers, that they operate steam and electric cars over said crossing, carrying their employés and passengers, and averring the necessity of contractual regulations of their respective duties regarding the crossing, and that appellant and its immediate predecessor in right assumed and became bound by all the obligations of the original company.Appellant's demurrer was overruled to this complaint.It thereupon answered, setting up the franchise, granted the original company by the municipal authorities of the city of Evansville, to construct the street car line on Franklin street, and averring that on July 18, 1892, it had constructed its line of road up to both sides of appellee's track, crossing said Franklin street, and that the appellee refused to permit said company to construct its said track by constructing proper railroad crossings and connections where the same crossed appellee's track, as aforesaid, unless the said street car company would enter into the contract sued on, and that, in order to avoid violence at the hands of the appellee and its employés, the said street car company entered into said contract, and under said agreement made what is known as a jump crossing, and did not thereby interfere with or restrict appellee's use of its property, or lessen its value, and claims that under the facts shown in the answer the appellee is not entitled to recover more than $212.12, for which offer is made to confess judgment by appellant.It is further averred, that, prior to the making of the contract sued on, the Evansville Street Car Company had mortgaged all of its property and rights, and that upon a foreclosure of said mortgage, and sale of said property under said foreclosure proceeding, the Evansville Electric Railway Company purchased the same, and under the title thus acquired entered into the possession of the road, and operated the same until December 30, 1906, when the same was by deed conveyed to appellant.Appellee's demurrer to this answer was sustained, and, appellant refusing to plead further, judgment was rendered on the demurrer in favor of appellee for $424.24.The errors assigned here are the overruling of appellant's demurrer to the complaint, and sustaining appellee's demurrer to appellant's answer.

It is contended by appellant, in argument, that under the pleadings it is shown: (1) That the contract sued upon is not supported by a valuable...