M., H. & E. R. R. Co. and W., W. R. Co. v. Owen

• Citation: 147 Ky. 1
• Parties: Madisonville, Hartford & Eastern Railroad Co., and Walton, Wilson, Rodes Co. v. N. D. Owen, and Williams, Koehler & Barrier.
• Decision Date: 16 February 1912
• Court: Kentucky Court of Appeals

Page 1

147 Ky. 1

Madisonville, Hartford & Eastern Railroad Co., and Walton, Wilson, Rodes Co. v. N. D. Owen, and Williams, Koehler & Barrier.

Court of Appeals of Kentucky.

Decided February 16, 1912.

Appeal from Muhlenberg Circuit Court.

BROWDER & BROWDER, BENJAMIN D. WARFIELD, and CHARLES H. MOORMAN for M. H. & E. R. R. Co.

WILLIS & MEREDITH, W. J. ROSS for Owen.

HEAVRIN & WOODWARD for Walton, Wilson & Rodes Company.

TAYLOR & EAVES for Williams, Koehler & Barrier.

OPINION OF THE COURT BY JUDGE WINN — Affirming.

On June 19th, 1906, the appellant railroad company let to its co-appellant, the Walton, Wilson, Rodes Company, by written contract, the construction of some fifty-five and one-half miles of its railroad from Providence, Kentucky, to Mitchell, Kentucky. On July 10th, of the same year, the Walton, Wilson, Rodes Company sublet to the appellees, Williams, Koehler & Barrier, by written contract of practically the same substance, a part of the construction of this fifty-five and one-half miles of road. The part let to Williams, Koehler & Barrier included the bridge across Pond River, out of which this litigation arose.

On May 25, 1909, appellee N. D. Owen sued the railroad company in the Muhlenberg Circuit Court. His petition charged the operation of the railroad; that a part of its railroad was a bridge across Pond River, a navigable stream on the line between Muhlenberg and Hopkins Counties; that prior to February, 1909, it caused piles to be driven between the piers of the bridge, accumulating a drift and obstructing navigation; that in February he came down Pond River with a raft of three thousand logs and could not get through the drift; that he incurred expenses of $75 in amount in clearing out the drift; that he had to cut up his raft to get the logs through and lost $975 worth of logs.

The railroad company answered, traversing the allegations of his petition and alleging that the work was done by the Walton, Wilson, Rodes Company as an independent contractor, and that that company, therefore, alone was liable for Owen's damage.

In February, 1910, Owen filed an amended petition making the Walton, Wilson, Rodes Company a defendant. He alleged that the latter company was employed by the railroad company to perform the work, under its supervision; that the obstructions above named were the result of their joint negligence; and prayed judgment against both the Walton, Wilson, Rodes Company and the railroad company.

On June 5, 1910, the Walton, Wilson, Rodes Company filed its answer and cross petition in thirteen paragraphs, pleading, among other things, that the work was done under the supervision of the railroad; that the railroad had the right to annul the contract, and had done so on March 31, 1908, and had finally inspected and received the work. The thirteenth paragraph was a cross petition against the appellees, Williams, Koehler & Barrier, charging in substance that the latter firm did the bridge work as independent contractors, and that they alone were liable for Owen's damage. On September 5, 1910, the railroad company filed its answer to the answer and cross petition of the Walton, Wilson, Rodes Company. On September 7, 1910, Williams, Koehler & Barrier filed their answer, denying the allegations of the plaintiff's petition, though he had sought no recovery against them. They further plead that the cause of action in the plaintiff had accrued more than twelve months prior to the institution of the action and was barred. They adopted as their answer a number of the paragraphs of the answer of the Walton, Wilson, Rodes Company; and then answering the cross petition of that company, set up that they were the agents of said company; denying that they, Williams, Koehler & Barrier, were independent contractors; or did the work as independent contractors. They further alleged that their contract with the Walton, Wilson, Rodes Company was by its terms, subject to cancellation; and that same had been cancelled on the 31st day of March, 1908. The other paragraphs of their pleading need not be set out, save the twelfth paragraph. In that paragraph they allege that the bridge work was actually done by one Talbert, as an independent contractor, under a contract with them to build the bridge. Talbert, however, was not made a party to the action. By agreed orders all affirmative matter in all these pleadings was controverted of record, and the case came on for trial at the January, 1911, term of the court. The railroad company moved the court to continue the case at this term, and filed in support of its motion the affidavit of J. C. Browder, one of its attorneys. The motion was overruled and the railroad company complains of the refusal to continue. This affidavit sets out that the railroad company did not obtain subpoenas for the witnesses upon whose absence a right to a continuance was predicated, because it expected to have said witnesses present in person and that they had agreed to be present. The case had been continued at the prior September term of court. The railroad company, therefore, should have taken their depositions, or should have had subpoenas or other proper process to compel their attendance. Failing a showing of such steps, it showed no valid basis for the continuance and the trial court rightly overruled the motion therefor.

It is also complained by the railroad company that its motion to transfer to equity was overruled. While it is true that the sundry contracts above set out did involve peculiar questions of legal liability as between the various constructing parties, that question was one of easy ascertainment by the court and involved no trial of a complicated or peculiar issue by the jury. Nor was there any such great detail of fact as to render it impracticable for the jury to intelligently try the issues submitted to them. The issues which went to the jury were merely those of whether there had been negligence, whether the plaintiff had suffered loss, and if he had, the amount of his damage. There was, therefore, no error in the action of the court in overruling the motion to transfer to equity. The respective rights of the three companies involved, depending upon a proper judicial construction of the written contracts filed evidencing the contractual rights as between them, were ascertained by the court. It would not have been otherwise had the action been in equity.

Upon the trial the court instructed the jury to find for Williams, Koehler & Barrier, and a judgment accordingly was rendered...