Atchison, Topeka & Santa Fe Railroad v. Cochran

43 Kan. 225 | Kan. | 1890

The opinion of the court was delivered by

Hokton, C. J.:

This was an action brought by Joel Cochran, administrator of the estate of John M. Gibson, deceased, against the Atchison, Topeka & Santa Fé Railroad Company, to recover damages for the killing of Mr. Gibson, at Holliday, in this state. At the time of his death Mr. Gibson was a widower with two married daughters, and no other children. He was the owner of a farm in Douglas county, which was occupied by a tenant. One daughter resided at Eudora, and the other at Olathe. He sometimes made his home with one, and at other times with the other daughter. He was about sixty-five years of age. About eight o’clock A. m., on the 21st day of March, 1887, he left Eudora and took passage on a regular passenger train of the Atchison road for Holliday. The latter is a junction of the Atchison road and the Southern Kansas Railway, in Johnson county. Mr. Gibson left the train at Holliday, and at once purchased a ticket at the office there over the Southern Kansas Railway for Olathe. He was compelled to wait the coming of the Southern Kansas train from Kansas City, Mo., from about 9:30 a.m. until 11:30 a.m. The Southern Kansas train pulled into Holliday, on the second track, about 11:30 a.m., and at this time there were six or seven passengers for Olathe and the southwest waiting. When the Southern Kansas came up, some of the passengers were on the south side of the platform, next to the first or main track; among them were Mr. Gibson, the deceased, Johnson and Owens. Just as the Southern Kansas train had come to a rest, one passenger crossed the first track, and the mail carrier crossed and got over, and he was followed by Mr. Gibson. As he got upon the track, a freight train of the Atchison road came in from the west, in front of the platform and on the main track; the engine struck Mr. Gibson, knocked him down, and dragged him some distance between the north rail and the platform. His head was badly cut, his leg was broken in two places, and he was greatly bruised about the body, internally and externally. His daughter, Mrs. Cochran, came to Holliday, took him to her house at Olathe, where he died, intestate, on the 30th day of March, 1887.

It is clearly apparent from the instructions of the court and the findings of the jury, that the recovery for the plaintiff below against the railroad company was upon the theory that Mr. Gibson, at the time of his injury, was entitled to the rights and privileges of a passenger of the Atchison company. This upon the claim that the Atchison company controlled, directed and managed the Southern Kansas Railway. The testimony in the record will not sustain a verdict upon this ground. The ticket which Gibson purchased at the station, read: “Southern Kansas Rly. Co. First-class ticket. Holliday to Olathe. (When stamped by agent at first-named station.) S. B. Hynes, G. P. A. (2882.) [Reverse side— stamped:] A. T. & S. F. R. R. Co., Holliday, Mar. 21st, 1887. Ex. I, A. P. R.” At the station of Holliday, the second track south of the depot was used by the Southern Kansas Railway Company for its passenger trains, and the main track next to the depot, and south thereof, was used by the Atchison, Topeka & Santa Fé Railroad Company. The jury found that the majority of the stock of the Southern Kansas Railway Company was owned by the Kansas City, Topeka & Western Railroad Company; that the balance of the stock of the company was owned by the Atchison Company; and that the Atchison Company leased and operated the Kansas City, Topeka & Western Railroad. The two companies, according to the testimony, are separate and independent corporations. The Atchison Company, by virtue of controlling the stock of the Southern Kansas Railway Company, was enabled to elect directors of that company. These directors elected several persons who were also officials of the Atchison Company.

In Railroad Co. v. Davis, 34 Kas. 209, 210, it is said:

l. Railroad sKhoideruabiiity. “That corporation had the power to purchase and hold the stock and bonds of the Wichita & Western Railroad Company, or to guarantee the payment of the principal and interest of the bonds of that company, and thereby, as a stockholder or bondholder, or as a guarantor of the bonds, to aid that company to construct its road; but by so doing the Santa Fé Company did not make the Wichita & Western Company its servant or agent, and did not thereby make itself responsible for the negligence or other default of the Wichita & Western Company. (Laws of 1873, ch. 105; Const., art. 12, §2; Comp. Laws of 1879, ch. 23, §32.) . . . Where a parent company, operating a long line of road in the state, takes the necessary steps to construct an auxiliary railroad for the purpose of a local line, in the name of another company, and in strictly pursuing the provisions of the statute merely furnished aid as a stockholder or bondholder, or a guarantor of bonds, to the auxiliary company, and such auxiliary company constructs its road in its own name, it is not the servant or agent, in such construction, of the parent company; and the parent company is not, on account of being a stockholder or bondholder, or guarantor 0f bonds of the auxiliary company, responsible for the negligence or other default of the auxiliary company in constructing its road in its own name.”

In the case of Pullman Car Co. v. Mo. Pac. Rly. Co., 115 U. S. 587, the former company claimed that the St. Louis, Iron Mountain & Southern Railway Company was controlled by the Missouri Pacific Company, and therefore that the Missouri Pacific Company was bound, under its contract, to haul the palace cars over it. In that case, as in this, it was shown that the Missouri Pacific Company owned stock in the railway company, and in that way selected its directors. The court, however, decided that this did not give it the control of the road. Chief Justice Waite, in delivering the opinion of the court, said among other things that—

“The Missouri Pacific Company has bought the stock of the St. Louis, Iron Mountain & Southern Company, and has effected a satisfactory election of directors; but this is all. It has all the advantages of a control of the road, but that is not in law the control itself. Practically it may control the company, but the company alone controls its road. In a sense, the stockholders of a corporation own its property, but they are not the managers of its business, or in the immediate control of its affairs. Ordinarily they elect the governing body of the corporation, and that body controls its property. Such is the case here. The Missouri Pacific Company owns enough of the stock of the St. Louis, Iron Mountain & Southern to control the election of directors, and this it has done. The directors now control the road through their own agents and executive officers, and these agents and officers are in no way under the direction of the Missouri Pacific Company. If they or the directors act contrary to the wishes of the Missouri Pacific Company, that company has no power to prevent it, except by the election, at the proper time and in the proper way, of other directors, or by some judicial proceeding for the protection of its interest as a stockholder. Its rights and its powers are those of the stockholder only. It is not the corporation, in the sense of that term as applied to the management of the corporate business or the control of the corporate property.”

There is no testimony in the record tending to show that the Atchison road leased the Southern Kansas road, or that it was the owner of the road. The rights and powers of the Atchison road were those of a stockholder only; therefore the Atchison road was not the Southern Kansas corporation in the sense of that term as applied to the management of the corporate business, or the control of the corporate property of the Southern Kansas.

„ 2. Company may Fnanhotiieerook company. Under the laws of this state a railroad company has a lawful right to purchase and hold stock of any other railroad company, the line of whose railroad, constructed r J 7 # ? or being constructed, connects with its own. (Atchison Rld. Co. v. Fletcher, 35 Kas. 236.) The stockholders of a railroad company may be said in a certain sense to control, direct and manage the road, but an action for the negligence of the officers, agents, or employés of the railroad company must be brought against the company, not against the stockholders; therefore, as the rights and powers of the Atchison road in the Southern Kansas Railway Company were those of a stockholder only, the Atchison company is not responsible for the wrongful acts of omission or commission of the Southern Kansas road. 3. connectingoi" company. As the rights and powers of the Atchison road in the Southern Kansas were those of a stockholder only, the instructions of the court that the iury might find from the testimony that the Southern Kansas Railway Company, for all practical purposes, was managed, controlled and operated by the Atchison company, was misleading. The finding of a verdict upon this and similar instructions cannot be sustained.

4. mrteo clncompanies-liability. The fact that Mr. Gibson purchased a ticket to ride over the Southern Kansas road at the station of the Atchison road at Holliday did not make him a passenger of the Atchison road, or make the Atchison road responsible for the negligence ' of the Southern Kansas road. The jury found that the person in charge of the ticket office at the station of Holliday was agent both for the Atchison Company and the Southern Kansas Company; but even if the ticket agent at Holliday acted for the Atchison road, and the Atchison road sold the ticket for the Southern Kansas road, this would not make the Atchison road liable for the negligence of the Southern Kansas. The ticket purchased by Mr. Gibson shows that the contract of carriage was made on behalf of the Southern Kansas Railway Company.

Upon a retrial, unless different testimony is presented, the case should not go to the jury upon the theory that the Atchison Company controlled, directed and managed the Southern Kansas Railway. If the Southern Kansas road was guilty of negligence in not running its passenger trains close or near to the station, that company is responsible, not the Atchison. If the Atchison road operated its freight train negligently, and without any contributory negligence on his part Mr. Gibson was killed thereby, then the Atchison Company is liable, not the Southern Kansas. They were two separate corporations, and the one is not responsible for the negligence of the other.

The judgment of the district court will be reversed, and the cause remanded.

All the Justices concurring.