86 Mo. App. 585 | Mo. Ct. App. | 1901
The defendant’s railway track crosses Kansas street in the city of Independence. The street runs east and west. The defendant’s railway crosses .over it from north to south with a right of way forty feet in width. Defendant built a sidewalk crossing over the street on the north line of the right of way for the use of the public. This walk also operated as a crossing over a drain ditch on the side of defendant’s railway. Mrs. Armstrong was injured by falling into a hole in the sidewalk. She afterward recovered a judgment against plaintiff city therefor. Her husband also recovered a judgment against the city for his loss by reason of the injury to his wife. The railway company was duly notified of such suits and judgments. The city paid these judgments and then brought this action against the railway company, contending that the company is liable over to it for the amount of the judgments. The city prevailed in the trial court.
The ordinance was offered in evidence and excluded by the trial court on the ground that plaintiff had not shown that defendant was the lawful successor of said Wyandotte, Kansas City and Northwestern road. It is clear that any lessee, grantee or successor of the first named.company will be liable to such conditions as were attached to obtaining this right of way. People v. Railroad, 67 Ill. 118; Railroad v. McIntosh, 140 Ind. 261; Commonwealth v. Railroad, 117 Pa. St. 637. It was conceded that defendant was occupying the right of way and operating the road, and we are of the opinion that this was a prima facie showing that defendant was the lessee,
“A town thus made liable may sustain an action for indemnity against the railway company, if that company was first and principally in fault and the wrongful cause of the defect or neglect. The town is compelled by law and public policy to stand as guarantors, or in a position like that of surety for the company, that it shall not be guilty of neglect. When the wrong or neglect is altogether on the part of the company, the town may nevertheless be held to make good the injury to the individual. The liability of the railroad company is to indemnify the town fully for all the damages it has been compelled to pay, and for the costs and expenses reasonably and fairly incurred.” Veazie v. Railroad, 49 Maine 119. To the same effect are the following: Ottumwa v. Parks, 43 Iowa
If it be suggested that both the city and railway company being legally bound to keep the highway in repair, they are both wrongdoers in letting it become unsafe, and therefore one can not, under the rule in pari delicto, recover over against the other for that which was a common wrong. That question has been met in several cases and it has been determined, in keeping with the quotation from Veazie v. Railroad, supra, that the primary duty is upon him who disturbs the highway by diverting it, at least in part, to some other use, to keep it in safe condition and that the parties are not therefore in pari delicto. “The only fault or negligence which could be imputed to the town, on the facts shown, was a failure to remedy the nuisance which the defendant had caused. This is no bar to the claim for indemnity.” Milford v. Holbrook, 9 Allen 17; City of Portland v. Richardson, 54 Maine 46; Lowell v. Railroad, 23 Pick. 24, 31.
The result is to affirm the judgment.