Oregon-Washington R. & Nav. Co. v. Spokane, P. & S. Ry. Co.

• Decision Date: 27 March 1917
• Citation: 83 Or. 528,163 P. 989
• Court: Oregon Supreme Court
• Parties: OREGON-WASHINGTON R. & NAV. CO. v. SPOKANE, P. & S. RY. CO.

163 P. 989

83 Or. 528

OREGON-WASHINGTON R. & NAV. CO. v. SPOKANE, P. & S. RY. CO.

Supreme Court of Oregon

March 27, 1917

In Banc.

Appeal from Circuit Court, Multnomah County; John P. Kavanaugh Judge.

On petition for rehearing. Original opinion withdrawn in one particular and otherwise adhered to.

For original opinion, see 163 P. 600.

Carey & Kerr, of Portland, for appellant. W. W. Cotton A. C. Spencer, Charles E. Cochran, and Ralph E. Moody, all of Portland, for respondent.

McCAMANT J.

The defendant in a petition for rehearing has attacked the correctness of our conclusions, and is entitled to an answer to the propositions discussed in its petition. Our attention is directed to the objection reserved by the defendant to the admissibility in evidence of the testimony taken before the arbitrators. We are asked to rule on this objection. It is true, as contended, that defendant did not waive this objection by cross-examining the witness who identified it. We think this evidence was competent and material to the determination of the issues raised by the pleadings and that the lower court did not err in receiving it. Thompson v Blanchard, 2 Iowa, 44, 49; Thrasher v. Overby, 51 Ga. 91; Bean v. Wendell, 20 N.H. 213, 219.

The direct examination of Mr. Aitchison was confined to the identification of the testimony which was considered by him and his associates. The defendant on cross-examination drew out testimony as to the award and what the arbitrators intended to decide thereby. This cross-examination was beyond the scope of the direct examination; it justified redirect examination of the witness on the same subject, and forecloses any objection which might otherwise be urged to the competency of the evidence. Willis v. Abraham, 31 Or. 562, 565, 51 P. 79.

Complaint is made that no notice was taken in the previous opinion of three contracts offered in evidence by the defendant, defining the terms under which different railway companies are operating over the Northern Pacific bridge at Kennewick, Wash., defendant's bridge across the Willamette at North Portland and the Columbia River bridge at Vancouver owned jointly by defendant and the Northern Pacific. If it had been shown that there is a uniform practice among railroad companies to determine in a certain way the compensation to be paid by a junior company for use of the facilities of the senior company, this would have been material as bearing on some of the questions discussed in our former opinion. 163 P. 600. But the testimony fails to show any such uniform practice; the inference to be drawn from this sort of testimony is adverse to the defendant's contention. In the three contracts above referred to the junior company is chargeable with such share of the interest on the investment as its traffic bears to the entire traffic carried over the bridge. In the Vancouver bridge contract the plaintiff is also charged with the expense of reconstructing the bridge, in such proportion as the plaintiff's traffic during a 5-year period bears to the entire traffic on the bridge during the same period. It appears that plaintiff offered to pay defendant a third of the interest charge on the cost of the bridge when it was expected that three railroads would use it, and a fourth of this charge when it was ascertained that four railroads would operate over it. At defendant's suggestion the contract was drawn as above, and in practice plaintiff is paying more than a fourth of the interest charge.

The evidentiary value of the other contracts offered by the defendant is impaired by the circumstance that they are contracts made by the defendant with the Northern Pacific and the Great Northern, and the evidence shows that these latter companies own the stock of the defendant, share and share alike. The contracts are therefore little more than a convenient form of book-keeping which the common owners have elected to adopt.

Plaintiff, on the other hand, has offered in evidence seven contracts all providing for the use of railway facilities by competing lines, and in all these cases the junior company makes a substantial contribution to the charge for interest on the investment, regardless of the volume of its traffic. In most of these cases the junior company pays a share of the interest charge based wholly on the number of users and without regard to the relative volume of traffic. In one of the contracts, that under which the plaintiff secures access to a traffic producing territory in West Seattle by use of the facilities of the Northern Pacific, the conditions are closely akin to those in this case. All these contracts have to do with facilities in this part of the union; plaintiff or one of its subsidiary companies is a party to all of them and some part of the Hill system of roads to which defendant belongs is also a party to each of them.

The petition challenges the correctness of the statement in the opinion that there was no evidence before the arbitrators bearing on the number of defendant's locomotives and cars which would use the bridge. We are referred to Respondent's Exhibits 25, 26, 16, and 17. These exhibits were not overlooked in preparing the former opinion. It appeared by the testimony offered before the arbitrators that plaintiff had put in effect a tariff for the switching of cars from the west to the east side of the Willamette at Portland, and that a number of defendant's cars had been so switched. Exhibit 16 was a table showing that in the two years ending March 31, 1913, 21,395 cars had been so switched by plaintiff for the Hill lines, of which defendant is one; Exhibit 17 segregated the loaded cars in this list from the empty cars and segregated the loaded cars switched for defendant from the loaded cars switched for the Northern Pacific. There was no such segregation of the empty cars. Exhibit 25 was a table showing the engines and trains of plaintiff and the Southern Pacific using the bridge from May 4, 1912, to July 25, 1912. Exhibit 26 was a table of the Hill line cars switched across the bridge from July, 1912, to March, 1913. This table showed that 8,780 of defendant's cars had been so switched during this period. Some of the cars tabulated in these exhibits had been switched over the bridge with which we are concerned in this case, but most of them used the old bridge which it replaced.

The evidence showed that a large part of the traffic switched across the bridge was destined to Albina. We are not concerned with that traffic in this case, because the defendant has no terminal in Albina and could not avail itself of a common user of the bridge to reach Albina. The testimony further shows that the period covered by these tabulations was the period when the defendant was acquiring its terminal facilities in East Portland. Defendant's expenditures for this purpose during the 2-year period covered by Exhibit 16 exceeded $1,400,000. It has since made large additional expenditures, and is now the owner of extensive terminal facilities in East Portland.

The evidence further shows that the defendant was unable to move certain classes of its traffic under these switching...