Kansas City Southern Railway Co. v. Wade, Receiver of Missouri & North Arkansas Railroad Co.

• Citation: 201 S.W. 787,132 Ark. 551
• Decision Date: 11 February 1918
• Docket Number: 150
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. WADE, RECEIVER OF MISSOURI & NORTH ARKANSAS RAILROAD COMPANY
• Court: Supreme Court of Arkansas

201 S.W. 787

132 Ark. 551

KANSAS CITY SOUTHERN RAILWAY COMPANY v. WADE, RECEIVER OF MISSOURI & NORTH ARKANSAS RAILROAD COMPANY

No. 150

Supreme Court of Arkansas

February 11, 1918

[Copyrighted Material Omitted]

Appeal from Benton Circuit Court; J. S. Maples, Judge; modified and affirmed.

Judgment reversed.

James B. McDonough and Cyrus Crane, for appellant; S.W. Moore and F. H. Moore, of counsel.

1. A verdict should have been directed for defendant because the operator, Hadley, was not the agent of the Kansas City Southern Railway Company but of the Joplin Union Depot Company, a separate and distinct entity. 186 F. 947; 203 Id. 953; 169 Id. 404; 162 Id. 556; 101 N.Y.S. 225. The operator was the sole agent of the depot company. 56 S.E. 624; 164 F. 785, 410; 14 How. 468; 177 F 644; 114 Id. 100; 163 P. 209; 22 S.W. 570. See also 6 Mees. & W. 497; 176 Ill. 108; 98 Ill.App. 337; 28 Vt. 297; 133 Mo.App. 625; 100 Id. 617. The depot company was not the agent of the appellant, and Hadley was the agent of the depot company. 1 Ell. on Cont., § 549; 68 F. 105; 34 L. R. A. 625-7.

2. Plaintiff introduced no evidence to show the destination of the passengers injured and killed. Negligence must be proved and the burden was on plaintiff. Thompson on Negl., § 7695. See also 84 S.E. 334; 170 S.W. 591; 81 S.E. 335; 100 N.E. 942; 52 So. 406; Thompson on Negl., § 2237, and note; Elliott on Cont., § 579, 765-781, and others.

3. The conversations between Conductor Nicholas, Brakeman Bradley and Engineer Ratliff were inadmissible. They were no part of the res gestae. 3 Wigmore on Ev., § 1795; Chamberlain on Ev., §§ 2579-2580-1. See also 51 Ark. 509; 22 Id. 477; 50 Id. 397; 54 Id. 409; 58 Id. 52; 10 Id. 638; 126 Id 332; 125 Id. 186, 217; 119 Id. 36; 114 Id. 56; 77 Ala. 374; 96 Id. 412; 152 Mass. 335; 14 W.Va. 277; 187 S.W. 433; 181 Id. 922; 176 Id. 896; 82 S.E. 662; 145 P. 743; 168 S.W. 369; 127 P. 166, etc.

4. The evidence establishes the fact that Conductor Nicholas signed for train order No. 84. The verdict is not supported by the evidence. 122 Ark. 445. A verdict can not be based on surmises, conjecture or suspicion. 141 N.W. 231; 42 D. C. App. 146; 106 N.E. 646; 174 S.W. 287; 174 Id. 547; 189 Ill.App. 316; 181 S.W. 938; 185 Id. 896; 235 F. 727; 183 S.W. 1099; 96 A. 967; 159 P. 927; 219 F. 686. Hearsay testimony is not satisfying. 10 Ark. 638; 122 Id. 445.

5. Under no circumstances is appellant liable for more than half of the damages under section 7 of article 3 of the contract.

6. The cause was properly removed to the United States District Court. High on Receivers (4 ed.), 60 a, b; 159 U.S. 36; 145 Id. 593; 3 Wall. 334; 109 U.S. 421; 139 Id. 628; 179 Id. 335; 173 Id. 113; 152 Id. 454; 161 Id. 588; 179 Id. 206.

7. The plaintiff, as receiver, was without authority to maintain this suit. 17 Howard 328; Simkins, Fed. Eq. St. 256; 136 U.S. 287; 99 Id. 235; 16 Wall. 203; 14 How. 52; 17 Id. 322; 149 U.S. 473; 136 Id. 223; 215 Id. 437; High on Receivers (last ed.), § 239.

8. The court erred in its instructions.

J. V. Walker, O. L. Cravens and W. B. Smith, for appellee.

1. Defendant owed plaintiff the duty to deliver train order No. 84; and in the discharge of that positive duty it selected Hadley, who, for the time and purpose, became defendant's agent. The trackage contract was not modified and defendant was guilty of negligence. Defendant had unlimited control over the jointly-used track. 128 F. 85, 91; 112 N.W. 875; 72 F. 455.

2. Hadley was defendant's agent. 24 Ky. Law Rep. 2388; 74 S.W. 216; 66 A. 553. He was performing their work. 105 Ark. 477; 111 Id. 497; 118 Id. 567; 137 N.Y. 248; 166 Mass. 268; 77 Ark. 551; 156 N.Y. 75; 123 N.W. 815; 112 Id. 875.

3. Even if the Joplin Union Depot operating agreement is relevant, still under its terms the operator in delivering train orders would be the agent of defendant. The finding of the jury on the question of the agency of Hadley on the instructions is conclusive. 105 Ark. 477.

4. If the collision was occasioned by the fault of the Kansas City company its liability was absolute and it is immaterial whether the destination of the passengers injured was to Neosho or beyond. (1) Objection not properly made. (2) Burden of pleading and proving exemption rested on defendant. 90 Ark. 182. A complaint need not negative matters of defense. 76 Ark. 525; 98 Id. 214.

Under the trackage agreement the defendant was liable for the entire loss, if the collision was occasioned by its fault. A contract should be construed as a whole and the various clauses given that construction that will make them consistent. 84 Ark. 435; 97 Id. 522; 104 Id. 475. The responsibility for the damages rested on defendant, the company at fault. 89 F. 560.

Contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms. 74 S.W. 216; 77 S.E. 366; 84 Id. 468; 114 N.Y.S. 776; 66 A. 553; 172 F. 214; 194 F. 1011; 78 N.E. 1110; 29 Id. 151. It was not material where the passengers were destined. No word of a contract should be treated as surplusage or disregarded, if any meaning which is reasonable and consistent with the other parts can be given. 101 Ark. 22; 104 Id. 573. Under the contract defendant is liable for all injuries by its negligence. 76 S.E. 1087.

5. Declarations made by Nicholas and Ratliff just before motor car started are admissible. 11 Enc. of Ev. 292-6-8-9, 306, 315, 333-4, 372-3, 385; 97 Mo. 165; 10 R. C. L. 974-980; 88 Mo. 631; 57 Id. 93; 132 Id. 301; 100 Ark. 269; 48 Id. 333, 338; 43 Id. 99, 103; 66 Id. 500; 85 Id. 479; 80 Ky. 399; 54 A. 289; 75 U.S. 397.

6. There was a conflict of evidence upon the question of delivery by Hadley of order No. 84, and the finding of the jury is conclusive. Opinion evidence and comparison of signatures was permissible. 50 Ark. 512; 108 Id. 392.

7. Defendant is liable for all the damages, not merely for one-half under the contract. 74 S.W. 216; 76 S.E. 1087.

8. The remand of the case to the State court is binding and conclusive. 59 Ark. 619; 83 Id. 599; 137 U.S. 451; 174 Id. 164; 175 Id. 635.

8. The jurisdiction of the receiver of the Missouri & North Arkansas Railroad Company was coextensive with the State, and he was authorized to prosecute this suit. Hopkins, Judicial Code, §§ 56, 81; 151 F. 626; 75 Ark. 365; 11 C. J. 1235-6; 107 F. 1; 8 So. 84; 98 Ark. 370; 150 N.Y. 828; 98 Ind. 425; 119 F. 391, and many others.

9. There is no error in the instructions. 58 Ark. L. Rep. 194, 88 Ark. 210.

STATEMENT OF FACTS.

On the 5th of August, 1914, there was a head-on collision between a motor car of the Missouri & North Arkansas Railroad Company carrying passengers and a regular passenger train of the Kansas City Southern Railway Company near Tipton Ford, in the State of Missouri. Forty-three passengers on the motor car were killed and several others were injured and the motor car was entirely demolished. The receivers of the Missouri & North Arkansas Railroad Company settled with the claimants for death losses and for personal injuries and instituted this action against the Kansas City Southern. Railway Company to recover the amount so paid out by it and also for the value of its motor car. The grounds on which they sought recovery from the defendant were that the negligence of one of the defendant's employees caused the collision and that under a private contract between the two railroad companies, the defendant was liable for the whole amount of the losses sustained.

The answer of the defendant contained a general denial of the allegations of the complaint, and averred that under the contract under which the two railroads were operating that it was only liable for a proportionate share of the losses.

The material facts are as follows: In 1907, the Missouri & North Arkansas Railroad was engaged in extending its line of road from Leslie, Arkansas, to Helena, Arkansas, on the south, and from Seligman, Missouri, to Joplin, Missouri, on the north. After it had extended its line from Seligman to Neosho, instead of building on to Joplin, it entered into an agreement with the Kansas City Southern Railway Company under the date of December 13, 1907, whereby it secured trackage arrangements over the line of road of that company between Neosho and Joplin and the joint use of the Kansas City Southern Railway Company's terminal at Neosho and Joplin. For convenience, the Missouri & North Arkansas Railroad Company will be hereinafter called the plaintiff and the Kansas City Southern Railway Company will be called the defendant.

The contract between the companies of the date of December 13, 1907, is divided into three articles.

Article 1 covers the grants and obligations of the defendant.

Article 2 contains the consideration to be paid by the plaintiff to the defendant for the trackage rights and expenses granted it.

Article 3 contains their mutual covenants and the covenants covering the mutual liabilities of the two companies.

Section 1 of article 3 provides that the plaintiff shall not do any local freight or passenger business on the line of the defendant's road between Neosho and Joplin and the intermediate towns unless required to do so by statute or some order of a railroad commission. The section also provides that in case the plaintiff is required to do such local business it shall assume, without indemnity, full responsibility for all damage to or loss of property or death of or injury to persons carried, under such statute or order, the same as though that part of the road was owned and exclusively maintained and operated by the Arkansas company.

Section 7 of article 3 reads as follows: "Each party hereto shall for its own account assume all liability for any injury to person or damage to...