Louisville & N.R. Co. v. Com.

• Decision Date: 17 December 1920
• Citation: 190 Ky. 78,226 S.W. 113
• Parties: LOUISVILLE & N. R. CO. v. COMMONWEALTH ET AL.
• Court: Kentucky Court of Appeals

226 S.W. 113

190 Ky. 78

LOUISVILLE & N. R. CO. v. COMMONWEALTH ET AL.

Court of Appeals of Kentucky.

December 17, 1920

Appeal from Circuit Court, Warren County.

Action by the Commonwealth, for the use of the Bowling Green Business Men's Protective Association, and others against the Louisville & Nashville Railroad Company. From a judgment against it, the defendant appeals. Reversed, with directions to dismiss.

Benjamin D. Warfield, H. L. Sone, E. S. Jouett, and W. A. Northcutt all of Louisville, Sims, Rodes & Sims, of Bowling Green, and J. H. McChord, of Springfield, for appellant.

Chas I. Dawson, Atty. Gen., M. M. Logan, of Louisville, and T. W & R. C. P. Thomas and B. W. Bradburn, all of Bowling Green, for the Commonwealth.

CARROLL C.J.

This litigation is the result of a controversy between the Bowling Green Business Men's Protective Association, acting on behalf of the citizens of the city of Bowling Green, and the Louisville and Nashville Railroad Company, and concerns the erection of the new passenger station at Bowling Green. It had its origin in this way: In 1912, the Business Men's Protective Association filed with the Kentucky Railroad Commission a complaint, setting forth that the passenger station facilities at Bowling Green were inadequate. Thereafter evidence was taken on the subject of the controversy, and on May 9, 1913, the following order was entered by the Railroad Commission:

"The parties hereto appeared by counsel, and by consent it is ordered and adjudged by the commission that the present passenger station facilities at Bowling Green, Ky. are inadequate, insufficient, and unsuitable for the purposes for which intended, but that the defendant does not waive its right to question the power and jurisdiction of the commission to order a new station or changes in the present station. Thereupon the defendant made it appear to the commission that it contemplates revising its main line of railroad from Nashville, Tenn., to a point north of Bowling Green, and that said improvement involved the construction of a new route, so as to touch or run near Bowling Green southeast thereof, upon or in proximity to the survey heretofore made, and also involved the change of the passenger station at Bowling Green from its present location to some point on said proposed new line; and it urged said facts as a reason why it should not, at this time, construct a new station at Bowling Green. Whereupon it is by consent ordered that within three years from entry of this order defendant shall commence in good faith the location and construction of a new, modern, properly equipped passenger station to serve Bowling Green, Ky. or, if the proposed construction of said new line is within said three years abandoned, then said new station is at once to be constructed at or near its present site, or elsewhere on said present line of railroad; but, if ultimately located at the present site or elsewhere upon said present line of railroad, it must be so located or constructed that the public will have access to same without having to cross any tracks."

At the same time, and as a part of the foregoing order, the following order was entered by the commission:

"Pending the construction of the new station herein contemplated, the defendant agrees to maintain the present station in good condition, and to make the following improvements in same:

(1) Have the Adams Express Company vacate the station building. Convert the room formerly occupied by it into a kitchen for the restaurant, and add the present kitchen to the dining room, thus making an enlargement which will be a material improvement.

(2) Straighten the track immediately east of and adjacent to the platform at the south end of the station, so that it will be practically parallel with the track on the west of this platform. The result of this will be to widen the platform, so that it will be as wide at its south end as it is at the depot building, and same will then be extended all the way to Main street. The area of the present platform south of the station is about 2,400 square feet; the area of the new one will be 4,200 square feet, or an increase of 75 per cent. This platform will be covered with a shed.

(3) Have a septic tank installed for sewerage. This was suggested by the committee as the method in use in connection with the best buildings at Bowling Green, in view of the city having no sewerage system.

(4) Remove the stoves, some 10 or 12 in number, and install a steam heating system.

(5) Provide and maintain adequate lights to keep the station sufficiently lighted.

This cause is filed away, subject to be reinstated by either party or by the commission, upon 10 days' notice to the parties."

The three years mentioned in the foregoing orders having expired, and the railroad company not having changed its line of road at Bowling Green or taken any steps to do so, and not having erected a new station or taken any action indicating its purpose to do so, the Railroad Commission, upon the request of the Business Men's Association, held a meeting in June, 1916, after notice to the railroad company, for the purpose of inquiring into the failure of the company to comply with its agreement made in 1913 to erect a new station, and to enter such orders as might seem to be proper. At this meeting the commission heard other evidence on the subject of the controversy, and thereafter, on October 24, 1916, it entered, after reciting the foregoing facts, the following order:

"In view of the premises, the commission feels under a duty to exercise what it conceives to be its authority under the law to require the defendant company to comply with the order heretofore entered and agreed to.

To this end the order heretofore entered and agreed to is hereby reaffirmed and amended, and the commission finds that the evidence, and a personal inspection of the physical conditions, establish the following facts relative to the station maintained by the defendant company at Bowling Green, Ky. to wit: That said station is unfit for the accommodation of the public; that the same is inadequate, insufficient, and unsuitable as a passenger station to accommodate the patrons of said road and the traveling public; that the present inadequate facilities result in danger to the traveling public, who are required, in leaving the train or in going to board the train, to pass in close proximity to trucks ladened with trunks, boxes, and other articles of merchandise which are liable to fall from said trucks, and which, if they should do so, would injure passengers or patrons of said road, that as said station is at present constructed and maintained the traveling public are unnecessarily required to cross the tracks in order to reach the said station.

Therefore, it is the order of the commission that the chairman of said commission shall send a copy of this opinion to the president of the defendant, Louisville & Nashville Railroad Company, and notify said president in writing to rebuild the station at Bowling Green, Ky. within 90 days after the receipt of such notice, and that said notice shall contain the following requirements concerning the rebuilding of said station, to wit: That said station shall be a new, modern, and properly equipped passenger station, and adequate, sufficient, and suitable for the purpose for which it is intended, and that said new station shall be so located and constructed that the public will have access to same without having to cross any tracks approaching said station from the east.

"It is the further order of the commission that if the requirements herein demanded cannot be reasonably complied with in the time prescribed, to wit, 90 days, that additional time shall be granted from time to time as the necessity of the occasion is made manifest, provided that the defendant company in good faith, and within a reasonable length of time, manifests its determination and willingness to carry out the provisions of this order."

Thereafter, and in March, 1917, the commonwealth of Kentucky, suing for the use and benefit of the Bowling Green Business Men's Protective Association and the people of Bowling Green, brought this suit in equity in the Warren circuit court against the railroad company. The petition, after setting out the facts as we have stated them, averred:

"That as a matter of fact the said defendant has for more than five years, and doesnow, unlawfully maintain a station and depot at Bowling Green, Ky. which is unfit for the accommodation of the public; that the same is inadequate, insufficient, and unsuitable as a passenger station to accommodate the patrons of said road and the traveling public; that the present inadequate facilities result in danger to the traveling public, who are required, in leaving the train or in going to board the train, to pass in close proximity to trucks ladened with trunks, boxes, and other articles of merchandise, which are liable to fall from said trucks, and which, if they should do so, would injure passengers or patrons of said road; and, as said station is at present constructed and maintained, the traveling public are unnecessarily required to cross tracks in order to leave said station."

The prayer of the petition was--

"for a judgment against the defendant, Louisville & Nashville Railroad Company, and such orders as will require and compel the defendant to obey and comply with the order of the Railroad Commission duly entered of record in the office of said commission and filed as a part of this proceeding; and that such orders may be entered as will require the defendant to comply with its statutory duties under section 772 Kentucky Statutes, Carroll's Edition 1909; and for such other orders as...