New York Cent. R. Co. v. Cent. Vermont Ry. Co.

• Decision Date: 01 November 1922
• Citation: 243 Mass. 56,136 N.E. 825
• Parties: NEW YORK CENT. R. CO. v. CENTRAL VERMONT RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 56

136 N.E. 825

NEW YORK CENT. R. CO.

v.CENTRAL VERMONT RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 1, 1922.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action by the New York Central Railroad Company against the Central Vermont Railway Company, to recover the expense incurred by plaintiff in making certain repairs at a crossing of the railroad of the two companies. Finding for plaintiff, and defendant brings exceptions. Exceptions overruled.

As found by the trial judge, the Western, Railroad Corporation and another railroad company were united and consolidated in 1867 as the Boston & Albany Railroad Company, with all the powers, privileges, rights, franchises, property, claims and demands previously held by either corporation. In 1899, the Boston & Albany Company leased its railroad, franchise and property to plaintiff with all right, title and interest in all contracts and obligations, of or with other railroads or corporations. The Amherst & Belchertown Railroad Company was incorporated in 1851, and shortly thereafter constructed its road across that of the Western Railroad Corporation at a point near the crossing involved. Thereafter, through foreclosure proceedings, all its property was conveyed to the Amherst, Belchertown & Palmer Railroad Company which under Acts of Connecticut and Massachusetts conveyed its railroad and property to the New London Northern Railroad Company, the acts authorizing the sale providing that the new company should have all the rights and privileges, and be subject to all the restrictions and liabilities of the old company. The New London Northern Railroad Company leased its road to the Consolidated Railroad Company of Vermont which assigned the lease to the Central Vermont Railroad Company and by foreclosure proceedings it passed to defendant, the Central Vermont Railway Company.

The first count sought to recover on an account annexed. The second count alleged that defendant's predecessor in titlt constructed its railroad across the railroad of plaintiff's predecessor in title and that the crossing was still in use and became out of repair, and that plaintiff after notifying defendant to repair it and after defendant's failure to do so made the repairs itself at defendant's expense. By amendment, counts 3 and 4 were added. Count 3 contained the same allegations as count 2 and further alleged a contract between the Western Railroad Corporation and the Amherst & Belchertown Railroad Company by which the latter agreed to maintain the frogs, switches, etc., at their own expense, and that no payment had ever been made to the Western Railroad Company or any of its successors in title by way of damages. Count 4 contained the same allegations and also alleged that defendant and each of its predecessors in title had adopted such contract or assumed the performance of its obligations. Demurrers were sustained to the second and third counts and overruled to the first and fourth counts.

To prove the contract mentioned, plaintiff offered in evidence two reports made in 1852 to the directors of the Western Railroad Corporation by its president, and also offered evidence that the original contract had been searched for but could not be found. It was admitted that such president was dead and that a certain person if called as a witness would testify that the reports were in the decedent's handwriting and signed by him. The second of such reports contained the following:

‘ In pursuance of a resolution of the directors, a satisfactory contract has been entered into with the A. & B. road in reference to a connection between this road and the Western and also across our line to the New London & Palmer R. R. The A. & B. road to maintain the frogs, switches, etc., at their own expense, and also to maintain a flagman at the crossing, subject to the orders of the Western road as an occupant of their territory.’

The court admitted this portion of the second report, excluding the part in italics, and admitted the rest of that report, and the first report merely as bearing on the preliminary question of admissibility of the part admitted. Defendant excepted thereto and also excepted to other rulings on evidence, to the denial of its motion for a finding in its favor, and to rulings on its requests for rulings. There was evidence, and the court ruled, that the crossing was not in the same position as that originally constructed but refused to rule that it was not the same crossing.Ralph A. Stewart and Charles O. Pengra, both of Boston, for plaintiff.

Hurlburt, Jones & Hall, Henry F. Hurlburt, and Philip N. Jones, all of Boston, for defendant.

DE COURCY, J.

This action was brought to recover the expenses incurred by the plaintiff in making certain repairs at the crossing in Palmer where the defendant's railroad intersects and crosses that of the plaintiff. It was undisputed that these repairs were reasonably required; that the amount expended therefor was fair and reasonable; and that the plaintiff had requested the defendant to make them. The case was tried by a judge of the Superior Court sitting without a jury. He sustained demurrers to the second and third counts, made comprehensive findings of fact, and found for the plaintiff in the amount claimed in the account annexed.

In 1852 or 1853 the Amherst & Belchertown Railroad Company, under the authority given by its charter (St. 1851, c. 277), located and constructed its railroad so as to cross the tracks of the Western Railroad Corporation. The judge found that--

‘In consideration of the Western Railroad waiving its right to petition for damages, the Amherst & Belchertown undertook to maintain and keep in repair the structures and appliances at the Palmer crossing, and that, in fact, it did maintain and keep them in repair, at its own expense, as long as it operated the road.’

There was evidence to warrant this finding; and the defendant's requests to the contrary were refused rightly. The report of the president of the Western Railroad Corporation to his directors specifically refers to such a contract; and their cashbook showed the receipt from the Amherst & Belchertown Railroad Company of $54.21 in December, 1861, for frogs and labor at the crossing. Lowell v. Proprietors of Locks & Canals, 104 Mass. 18, 23.

The finding of the trial judge also states:

‘When * * * the Amherst & Belchertown was conveyed to the Amherst, Belchertown & Palmer this contractual obligation did not devolve upon the grantee nor was it assumed by said Amherst, Belchertown & Palmer. During the period, however, or a part of the period from November 1, 1858, to February 29, 1864, when the Amherst, Belchertown & Palmer operated the road, the Western Railroad performed the work of keeping the crossing in repair, and presented the bills therefor to the Amherst, Belchertown & Palmer which paid them in due course. This was evidence that the repairs were done in fulfillment of a legal obligation arising from an agreement between the Amherst, Belchertown & Palmer and the Western, and I find that there was such an agreement by the terms of which the Amherst, Belchertown & Palmer bound itself to bear the expense of keeping said crossing in repair.’

He made the further finding that the New London Northern Railroad Company, which purchased this railroad from the Amherst, Belchertown & Palmer in 1864, and operated it until 1891, paid bills for repairs on the crossing, and that ‘the New London was under a contractual obligation to the Western (and its successor the Boston & Albany) to bear the expense of keeping the crossing in repair.’ The judge did not determine whether this obligation arose from a new agreement made by the New London Northern, or from an assumption of the agreement made by its predecessor in title, or was based on the provisions of the Connecticut statute of January 15, 1864, subjecting this railroad ‘to all the restrictions and liabilities of said Amherst, Belchertown & Palmer Railroad Company.’ At this late day, after the earlier corporations through which the defendant took title have ceased to exist, and many of the records are lost or destroyed, the practical difficulty of tracing the details of this relatively minor transaction is apparent. But the finding that a contractual obligation existed is supported by evidence of actual payments by the New London Northern of bills for labor and materials at the Palmer crossing....