Missouri Pacific Railway Company v. Kansas City & Independence Air Line
| Decision Date | 15 June 1905 |
| Citation | 88 S.W. 3,189 Mo. 538 |
| Parties | MISSOURI PACIFIC RAILWAY COMPANY v. KANSAS CITY & INDEPENDENCE AIR LINE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Jno. W. Henry, Judge.
Affirmed conditionally.
Samuel W. Moore and Samuel W. Sawyer for appellant.
(1) Under the contract the Missouri Pacific was bound to protect the Air Line track from the encroachments of the river at every point between the Air Line junction and a point four hundred feet east of the Santa Fe overhead crossing. 17 Am. & Eng. Ency. Law (2 Ed.), 6; Church v. United States, 143 U.S. 457; Noonan v. Bradley, 9 Wall. 394; Coghlan v. Stetson, 19 F. 727; County of Johnson v. Wood, 84 Mo. 489; Union Depot Co. v Railroad, 113 Mo. 213; Nordyke & Marmon Co. v Kehlor, 155 Mo. 643; Torbert v. Jeffery, 161 Mo. 645; Carney v. Chillicothe, etc., Co., 76 Mo.App. 352; Renn v. Supreme Lodge, 83 Mo.App. 442; Burgess v. Badger, 124 Ill. 293. (2) Even if the Missouri Pacific did not bind itself to protect the Air Line track at points where the Air Line track was not on the Missouri Pacific right of way, still the work which was done by the Air Line was reasonably necessary to protect the tracks of both companies at points where the Air Line track was on the Missouri Pacific right of way, and therefore was work which should have been done by the Missouri Pacific. District of Columbia v. Gallaher, 124 U.S. 505; Ellis v. Harrison, 104 Mo. 270; Union Depot Co v. Railroad, 131 Mo. 291; Carter v. Foster, 145 Mo. 383; Williams v. Railroad, 153 Mo. 487; Green v. Higham, 161 Mo. 333; Railroad v. Smith, 75 Ill. 496. (3) Upon the refusal of the Missouri Pacific to comply with its contract, the Air Line was justified in going forward with the work and is entitled to recover one-half of the cost thereof in this action. 1 Sutherland, Damages (3 Ed.), secs. 88, 91; Hirt v. Hahn, 61 Mo. 496; Haysler v. Owen, 61 Mo. 270; Black River Lumber Co. v. Warner, 93 Mo. 374; Wright v. Sanderson & Sims, 20 Mo.App. 534; Spink v. Mueller, 77 Mo.App. 85; Railroad v. Delaware, etc., Co., 98 Va. 503; Tilden v. Buffalo, etc., Co., 50 N.Y.S. 511, 27 A.D. 510; Logansport v. Way, 52 Ind. 578. (4) Even if the court could not say as a matter of law that the work done by the Air Line was reasonably necessary for the protection of the tracks of both companies where the Air Line track was on the Missouri Pacific right of way, still it was at least a question for the jury to determine under all evidence, and the court erred in directing a verdict for the plaintiff on the issue raised by the counterclaim. Smith v. Clark, 58 Mo. 145; Hammond v. Beeson, 112 Mo. 190; Chapman v. Railroad, 146 Mo. 481; Duetmann v. Kilpatrick, 46 Mo.App. 624; Blanke v Dunnerman, 67 Mo.App. 591; Lime & Cement Co. v. Fire Proofing Co., 77 Mo.App. 21; Bachelor v. Cooper, 150 Pa. St. 533; Fairbanks v. Jacobs, 69 Iowa 265; Coon v. Citizens Water Co., 152 Pa. St. 644; Clapp v. Thayer, 112 Mass. 296; Mason v. Field, 119 Mass. 585; Stock v. Hurd, 62 Hun 618. (5) The verdict was excessive, and the case should be reversed on that ground, unless the plaintiff is required to remit a portion of the verdict and pay all costs, including the costs of appeal. Johnson v. Morrow, 60 Mo. 339; Miller v. Hardin, 64 Mo. 545; Clark v. Bullock, 65 Mo. 535; Peck v Childers, 73 Mo. 484; Higgs v. Hunt, 75 Mo. 106; Kimes v. Railroad, 85 Mo. 611; Dempsey v. Schawacker, 140 Mo. 680; Priest v. Deaver, 22 Mo.App. 276; Link v. Prufrock, 85 Mo.App. 618.
Elijah Robinson for respondent.
(1) By the provisions of the contract in question plaintiff was required to do only such work as was necessary to protect that portion of defendant's track that was on its right of way. That is exactly what the contract says, and exactly what it means; and that being true, it necessarily follows that defendant was not entitled to recover on its counterclaim. (2) Defendant was not entitled to recover from plaintiff anything on account of work done by it in constructing the dikes mentioned in evidence. (3) Plaintiff joins with defendant in invoking the well-settled rule that, where a contract is ambiguous, or the proper construction thereof is involved in doubt, it is proper for the court to look to the construction which the parties themselves have placed upon such contract. The contract in question is not ambiguous. Its language is susceptible of only one construction, and it, therefore, follows that the court is not under necessity of ascertaining what construction the parties have themselves placed upon it. However, the plaintiff not only does not object to, but, on the contrary, would be very glad to have the court consider all of the testimony bearing upon the question as to the construction that was placed on the contract by both plaintiff and defendant. (4) The fact that the work done by defendant for the protection of that portion of its track which was not on plaintiff's right of way, may have contributed indirectly to the protection of that portion of the track which was on said right of way, did not make plaintiff liable for any part of the cost of doing said work. (5) Plaintiff admits that the verdict was for $ 53.85 more than it should have been, upon the basis of the court's instruction to the jury; but it insists that for that reason the costs of this appeal should not be adjudged against the plaintiff.
This is an action upon a contract entered into between the parties hereto on the 24th of October, 1891, and under which the plaintiff seeks to recover $ 9,160.78, for the work and labor done and materials furnished in protecting the right of way of the plaintiff, on which the defendant company, under the contract, had constructed its line also, from the inroads and ravages of the Missouri river. The plaintiff, also, in the second count of the petition, seeks to enter and take possession and oust defendant from the portion of the land upon which the defendant's track is laid, on the ground that under the terms of the contract, the plaintiff was authorized to enter upon and remove the defendant's tracks from the plaintiff's right of way, if the defendant failed to make the payments stipulated for in the contract.
The answer of the defendant admits the doing of the work set out in the first count of the petition of the plaintiff, but alleges that it amounted to $ 8,074.22 and not to $ 9,160.78 as the plaintiff claims. The answer also admits the contract. The answer then contains a counterclaim, under which the defendant seeks to recover $ 15,088.06 from the plaintiff, which defendant claims is due to it for work done by the defendant under the terms of the contract, and which, by the contract, the plaintiff was obligated to do but refused to do.
At the close of the whole case, the defendant asked the court to instruct the jury that plaintiff was not entitled to recover. The court refused so to do, and the defendant excepted. At the request of the plaintiff the court instructed the jury that the plaintiff was entitled to recover $ 8,074.22, the amount admitted to be due by the defendant in its answer, with interest thereon from the 15th of July, 1897, to the date of the verdict, at the rate of six per cent per annum, and further instructed the jury to find for the plaintiff on the defendant's counterclaim. The jury returned a verdict for the plaintiff for $ 9,722.20 on the plaintiff's cause of action, and also found for the plaintiff on the defendant's counterclaim. After proper steps the defendant appealed.
The case made is this:
Both companies are domestic railroad corporations. At the date of the contract here involved, the plaintiff owned a right of way adjacent to the Missouri river, in Jackson county, between Independence and Kansas City. The defendant was about to construct a railway between Independence and Kansas City, which would cross the plaintiff's right of way at a point about 1,500 feet west of the Big Blue river. On the 24th of October, 1891, the two companies entered into a contract, the preamble of which recited that the defendant company was desirous of and was then constructing a line of railroad connecting with the Kansas City Suburban Railroad near a point where said railroad crosses the plaintiff's road in Jackson county, thence to Independence, and that it was mutually advantageous to the parties hereto to avoid the crossing of the tracks of said companies, and that, "such mutual purpose and advantage can only be gained by the location of the railway of the said Air Line Company, north of the tracks of the Missouri Pacific Railway Company, from said point of connection with the said road, to a point east of where the Chicago, Santa Fe and California railroad crosses overhead the Missouri Pacific Railroad Company's tracks; and whereas, the chief obstacle in so locating said track, is the imminent danger of encroachment upon it by the Missouri river by the erosions of its banks; . . . That for and in consideration of the mutual and reciprocal covenants, undertakings, promises and agreements, made by each of said parties, to and with the other, and which are hereinafter stated, as well as for other good and valuable considerations, the parties hereto have come to an understanding and entered into an agreement, looking to the location, construction and maintenance and operation of the said second party's railroad on the first party's right of way, between the Kansas City & Suburban Belt railroad and a point about four hundred feet east of the Chicago, Santa Fe and California railroad, and looking to the protection of the second party's tracks when there built against damage by the Missouri river, the terms and conditions of which understanding and agreement are as follows:"
The...
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