Houston & T. C. R. Co. v. Diamond Press Brick Co.

• Decision Date: 18 May 1916
• Docket Number: (No. 1614.)
• Citation: 188 S.W. 32
• Parties: HOUSTON & T. C. R. CO. v. DIAMOND PRESS BRICK CO.
• Court: Texas Court of Appeals

Page 32

188 S.W. 32

HOUSTON & T. C. R. CO. v. DIAMOND PRESS BRICK CO.

(No. 1614.)

Court of Civil Appeals of Texas. Texarkana.

May 18, 1916.

Rehearing Denied June 15, 1916.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Action by the Houston & Texas Central Railroad Company against the Diamond Press Brick Company. Judgment for defendant, and plaintiff appeals. Affirmed.

April 5, 1910, appellant and appellee entered into a contract as follows:

"This agreement, made and entered into by and between the Houston & Texas Central Railroad Company, hereinafter styled party of the first part, and Diamond Press Brick Company, a corporation having its principal office in the city of Ferris, Ellis county, Texas, hereinafter styled party of the second part, witnesseth:

"First. That the party of the first part agrees and binds itself to furnish the rails and all material and labor, except that hereinafter stated, for and to construct a spur track not exceeding 1,130 feet in length, in city of Ferris, Ellis county, Texas. The said spur track to connect with the main track of the party of the first part and to extend in a southerly direction on the east side thereof a distance of 1,130 feet as represented by a red line on the blueprint marked `Exhibit A' hereto attached and made a part hereof.

"Second. The party of the second part agrees to procure the right of way for said spur track, including any and all ordinances, and county or municipal permits, without cost or expense to the party of the first part. The title to said right of way and the rights and permits so granted to be vested in the party of the first part, its successors or assigns.

"Third. The party of the second part agrees to do the necessary grading, furnish the switch and cross-ties, and also expressly agrees to reimburse the party of the first part for all amounts expended by it for rail, labor, and other material used in constructing said track, but it is understood that the material in said track, when completed, shall be owned by the party of the first part, together with the entire control of same, and the party of the first part hereby reserves the right, and is duly authorized whenever, or at any time, it should seem proper or deem it necessary, for any reason whatever, and without let or hindrance from said party of the second part, to take up and remove the said spur track and all material used in its construction, and without being held liable to the party of the second part for any damages resulting therefrom.

"Fourth. It is agreed and understood that the said party of the second part shall bear the expense of keeping the said spur track in good condition, and that it will, upon receipt of bills therefor, promptly reimburse the party of the first part for any and all expenses incurred by it for material and labor furnished in making such repairs as may be necessary to keep the said spur track in first-class condition.

"Fifth. It is further agreed and understood that the party of the second part is to become liable for cars placed or upon the above-described track for its use and benefit, whether such cars are owned by the party of the first part or other railroad companies, and in the event of their damage or destruction by fire, or from any other cause growing out of the making of this agreement, the said party of the second part shall pay all bills for such damage or destruction upon presentation thereof: Provided, that where cars consigned to or intended for the use of others than the party of the second part and at its request are placed upon said spur track, the party of the second part shall be responsible for said cars the same as if they were consigned to or placed on said spur track for its use and benefit.

"Sixth. It is further agreed and understood between the parties hereto that in consideration of the convenient facilities afforded, and the benefits inuring to the party of the second part by the construction of said spur track, that the party of the first part is hereby released from all liability on account of any loss or damage by fire to the property of the party of the second part, or to the property of any other person which may be in the care or control of the party of the second part, in any car or cars upon said spur track, or in any building now or hereafter erected adjacent to said spur track, or property which may be staked or stored near the same, whether such damage be occasioned by sparks from locomotives, the negligence of the agents or employés of the party of the first part, or otherwise.

"Seventh. The party of the second part further agrees and obligates itself to save the party of the first part harmless from any and all claims for damages arising from any cause whatever growing out of the construction, maintenance, and operation of said spur track, including damages for injury to or killing of stock belonging to the party of the second part, its employés or tenants, whether such claim is made by any person, firm, corporation, or municipality. The party of the second part further agrees and binds itself to reimburse the said party of the first part for any and all amounts it may be compelled to pay in settlement of any claim for which, under the terms of this agreement, the party of the second part would be liable.

"Eighth. The right is given the party of the first part at any time to make use of said spur track for the purpose of receiving and delivering freight from and to other patrons, to spring other spur tracks therefrom, or to extend the same: Provided, such use of the spur track or any extension thereof shall not unnecessarily interfere with the said party of the second part in the enjoyment of the benefits of said spur track: Provided further, that the party of the second part, in event of loss or damage to cars and their...