Kansas City Southern Ry. Co. v. Wade

• Decision Date: 11 February 1918
• Docket Number: (No. 150.)
• Citation: 201 S.W. 787
• Parties: KANSAS CITY SOUTHERN RY. CO. v. WADE.
• Court: Arkansas Supreme Court

201 S.W. 787

KANSAS CITY SOUTHERN RY. CO. v. WADE.

(No. 150.)

Supreme Court of Arkansas.

February 11, 1918.

Appeal from Circuit Court, Benton County; J. S. Maples, Judge.

Action by Festus J. Wade, receiver of the Missouri & North Arkansas Railroad Company, against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

On the 5th of August, 1914, there was a head-on collision between a motorcar 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 motorcar were killed, and several others were injured, and the motorcar 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 motorcar. The grounds on which they sought recovery from the defendant was that the negligence of one of the defendant's employés 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 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, Ark., to Helena, Ark., on the south, and from Seligman, Mo., to Joplin, Mo., 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 property that may be caused by it in the operation of its trains under this contract, whether resulting from collision or otherwise, over the road hereinbefore mentioned, and the other party shall not be liable to contribute any sum whatsoever on such account, and should such payment or contribution be made by the party not at fault, by process of law, or otherwise, the party at fault shall protect the other party against such liability and indemnify said party from the cost and expense that may have been incurred therein.

"In the event that any injury to person or damage to property shall be caused by the joint negligence of both parties, or by the negligence of a joint employé in the operation of their trains over the track covered by this contract (including train employés engaged in operating any train employed in betterment or maintenance of joint track), whether accruing to the parties hereto or to third persons, shall be borne equally by the parties hereto; provided, that in the event of a collision caused by the negligence of both parties hereto or of a joint employé, each party shall at its own expense pick up and remove its own wreckage, and each party shall assume for itself the damage done its property and the property in its charge or control; if the Arkansas Company shall fail to promptly pick up and remove such wreckage so to be removed by it, the Kansas City Company may pick up and remove it and the cost thereof, plus ten per cent. (10%), shall be borne by the Arkansas Company. Where the loss or damage shall accrue to the property of the parties hereto, or either of them, or to third parties, and it cannot be ascertained which party caused such loss or damage, the expense thereof shall be treated as a maintenance charge and shall be paid in the manner and in the proportion heretofore set forth. Where suit is brought against one of the parties hereto upon a claim or cause of action for which the other party is responsible, the party sued shall notify the other party and turn over the defense of the case, if desired, to such other party but both parties shall co-operate in the defense of all suits and furnish information therefor each to the other. The rules governing the operation of trains over said track that may be in effect from time to time, shall be considered as the rules of each company party thereto. Train dispatchers, telegraph operators and other employés of the Kansas City Company having jurisdiction over the track hereinbefore mentioned, so far as their work is connected with the operation of trains over such track, and employés at the passenger and freight stations at Neosho, such as ticket sellers, freight agents, telegraph operators, warehouse men, baggage handlers, clerks, laborers and all other persons employed in and about the operation of said passenger and freight station, shall be considered as the joint employés of both companies and not as the sole employés of either company."

A supplemental agreement to this was executed on the 1st day of April, 1910. Under it the plaintiff was allowed to carry passengers between Neosho and Joplin and from Joplin to Neosho. It was also provided in that agreement that section 1 of article 3 above referred to should apply to said local business with like force and effect as if said local passenger business was done by requirement of local statute or order of a railroad commission. The Atchison, Topeka & Santa Fé Railroad Company and the Missouri, Kansas & Texas Railway Company also entered the city of Joplin. These railroad companies, together with the plaintiff and defendant, entered into an operating agreement with the Joplin Union Depot Company on May 2, 1910. The Depot Company was legally organized under the statutes of Missouri for the purpose of acquiring sufficient yards and terminal facilities in the city of Joplin with which to discharge the duties imposed by law upon all the four railroads above named which enter the city of Joplin. The operating agreement between the Depot Company and the four railway companies was divided into four articles. Article 1 contains the grants of the Depot Company. Under section 1 of article 1 the Depot Company agreed to acquire necessary land and complete the construction of a union passenger depot and union freight depot and all the side tracks and other tracks and structures appurtenant thereto. It contained the following:

"The said Union Passenger Depot and Union Freight Depot, and the tracks and other facilities of the Depot Company, and all additions, betterments, extensions and improvements thereto, and all the facilities appurtenant thereto that are now owned or may be hereafter acquired by the Depot Company are hereinafter referred to as `depot facilities.'"

Under section 2 the railway companies are granted for a certain period the right of running their passenger trains into the Union Depot and over and upon the railroads and road tracks of the Depot Company. Under section 3 the Depot Company agreed to keep and maintain a roundhouse, turntable, storage tracks, cleaning tracks, and other similar facilities where it would care for and make light repairs on the freight and passenger engines of the railway companies.

Under section 4 the right was granted each of the railway companies of running its freight trains drawn by its own motor power and manned by its own crews over said depot facilities or any part thereof.

Under section 5 the Depot Company agreed for all internal movements therefor to furnish motive power, switch, move and handle freight cars of the railway companies over the depot facilities.

Under section 6 the Depot Company agreed to keep and maintain said depot facilities at all times in good repair.

Article 11 covers the payments to be made by the railway companies to the Depot Company for the services performed for them by the latter.

Section 6 requires the railway companies to pay monthly pro rata on a wheelage basis, all the expenses of the operation, maintenance, renewal, and repair of the depot facilities, including all salaries, cost of labor, etc. This section also in detail provides the method of determining the contributions by each company.

Article 3 contains the mutual covenants for the operation of the depot facilities.

Section 1 provides that the Depot Company shall have the exclusive management and control of the operation,...