85 Ark. 232 | Ark. | 1908
(after stating the facts.) The only error relied upon toy counsel for appellant in their brief is that the court had no jurisdiction to try the case. Kirby’s Digest, § 6068, provides as follows: “An action against a railroad company, or an owner of a line of mail stages or other .coaches, for an injury to person or property upon the road or line of stages or coaches of the defendant, or upon a liability as a carrier, may be brought in any county through or into which the road or line of stages or coaches of the defendant upon which the cause of action arose passes.” In construing this section, in the case of Spratley v. Louisiana & Ark. Ry. Co., 77 Ark. 417, the court said: “The words 'may be brought’ in this statute have the meaning of 'shall be brought,’ and are mandatory.” This presents the question of whether the suit was brought in the wrong county.
The testimony shows that appellant does not own any line of railroad in the Fort Smith District of Sebastian County, but that it runs a train without change of conductors or train crew into Fort Smith, Arkansas, leaving its own track at Wister, Indian Territory and coming into the Fort. Smith District of Sebastian County over the tracks of another company. Undei this state of facts, can it be said that appellant’s road passes through or into the Fort Smith District of Sebastian County, within the meaning of section 6068 of Kirby’s Digest?
" Our statutes1 provide for the construction of stockguards by a railroad company where its road passes through or upon any enclosed lands of another. This court has held that a railroad corporation of another State which leases a railroad in this State becomes subject to the statutory regulation in such cases. St. Louis & S. F. Rd. Co. v. Hale, 82 Ark. 175. Riddick, J., speaking for the court, said: “But our statutes pro.vide that any railroad corporation of another State leasing any railroad in this State shall become subject to all the regulations and provisions of law governing railroads in this State, and held liable for the violation of any such laws. Kirby’s Digest, § § 6732, 6743, 6757, 6758. These provisions put the defendant in the same situation as the railroad company which first constructed the road, and any failure to obey the statute subjects it to the penalties pronounced by the statute.” Sec. 6758 of Kirby’s Digest provides that a corporation of another State leasing a railroad in this State “may sue or be sued in all cases, and for the same causes and in the same manner, as a corporation of tips State might sue or be sued if operating its own road.” Sec. 6757 provides that if a railroad company of another State shall lease a railroad, the whole or a •part of which is in this State, it shall be subject to all regulations and provisions of law governing railroads in this State. Sec. 6732 provides that the term railroad or railroad corporation shall mean all corporations operating any railroad in this State, whether as owner, contractor, lessee, mortgagee', trustee, assignee, or receiver. Sec. 7792 provides that “all general provisions, terms, phrases and expressions used in any statute shall be liberally construed, in order that the true intent and meaning of the General Assembly may be fully carried out.”
Construing these sections together, we think the court was justified in holding that where a railroad corporation, by license or by contract, operates its trains over the tracks of another company, its road passes through the county over which is laid the track of the latter company. In other words, that its road passes through any county where its trains make regular trips, whether over its own track or that of another company, just as a line of mail stages would be said to pass through or into any county where its stages made regular trips.
We are of the opinion that the court was correct in holding that the venue was laid in the proper county.
The question of whether or not service was had upon the proper agent does not enter into the case; for there was no further protest about the service after the motion to quash the summons and return thereon was overruled. Appellant waived the jurisdiction of the person when it filed its answer without preserving its objection in that pleading. Spratley v. Louisiana & Ark. Ry. Co., 77 Ark. 416.
Judgment affirmed.,
