Evansville & Southern Indiana Traction Co. v. Evansville Belt Railway Co.

• Decision Date: 04 February 1909
• Docket Number: 6,478
• Citation: 87 N.E. 21,44 Ind.App. 155
• Parties: EVANSVILLE AND SOUTHERN INDIANA TRACTION COMPANY v. EVANSVILLE BELT RAILWAY COMPANY
• Court: Indiana Appellate Court

87 N.E. 21

44 Ind.App. 155

EVANSVILLE AND SOUTHERN INDIANA TRACTION COMPANY v. EVANSVILLE BELT RAILWAY COMPANY

No. 6,478

Court of Appeals of Indiana

February 4, 1909

Rehearing denied April 23, 1909.

Transfer denied June 11, 1909.

From Vanderburgh Circuit Court; L. O. Rasch, Judge.

Action by the Evansville Belt Railway Company against the Evansville and Southern Indiana Traction Company.From a judgment for plaintiff, defendant appeals.

Reversed.

Stilwell & Kister and Woodfin D. Robinson, for appellant.

Iglehart & Taylor and J. E. Williamson, for appellee.

OPINION

RABB, J.

On July 18, 1892, and prior thereto, the appellee by virtue of a franchise duly granted by the proper municipal authorities of the city of Evansville, owned and operated a line of railroad through 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 its said road thereunder, said city duly granted to the Evansville Street Railroad Company a franchise to construct and operate an electric street-car line over and upon said Franklin street, and in order fully to enjoy its said franchise it was necessary for said street railroad company to construct its track across the appellee's railroad track.Appellee denied the street railroad company's right to cross its 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 July 18, 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 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 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 consent of 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, unobstructed, 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 to 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 roadmaster of the first party, 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 roadmaster, 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 roadmaster, upon receipt from him of five 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 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 crosswires upon the right of way of the first party alongside the tracks hereinbefore permitted to be laid on such right of way at 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 select.Said trolley wires are to cross said railroad track of the first party at the intersection of said street at the height of not less than twenty-two feet in the clear above the top of the rails of said first party's track, and said second party shall at all times maintain said trolley wires at the hight before mentioned.In the use of the crossing at said intersection the cars of the second party shall be brought to a stop at a distance of not less than twenty feet nor more than one hundred 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 a conductor or other employe of 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 said second party to said first party."

The appellant is the successor in right and interest to the street railroad company: (1) Through the foreclosure and sale of the property and franchise of the street railroad company upon a mortgage given to a trustee on January 1, 1892, for the benefit of the bondholders of said company, by which the Evansville Electric Railway Company became the owner of the street-car lines; (2) 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 roadmaster, 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 failed to do, and appellee made the necessary repairs at a cost of $ 424.24.This action was brought to recover from appellant the expenses so incurred by appellee.

The action 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 employes 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 to this complaint was overruled.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 said street railroad company would enter into the contract sued upon, and that, in order to avoid violence at the hands of the appellee and its employes, said street railroad 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.Appellant 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 by appellant to confess judgment.

It is further averred that prior to the making of the contract sued upon the Evansville Street Railroad 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 in favor of appellee for $ 424.24 was rendered on the demurrer.

The errors assigned here are the overruling of appellant's demurrer to the complaint, and the sustaining of 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 consideration; (2) that, the appellant not being a party to the contract, the...