120 Ky. 91 | Ky. Ct. App. | 1905
■Opinion by
Reversing.
This action was instituted in the Shelby circuit court by the appellant, Commonwealth of Kentucky, against the appellee, Louisville & Nashville Railroad Company, and the Chesapeake & Ohio Railway Company, to compel them, through the mandatory process of the court, to furnish for the use of the public greater facilities for the transportation of passengers and freight over the line of railroad operated by them in and through Shelby county, particularly between Shelbyville and Christiansburg. It appears from the averments of the petition that the appellee, Louisville .& Nashville Railroad Company, owns and operates a
It further appears that, though the Louisville & Nashville Railroad Company continued to operate, and is yet operating daily, its trains, both passenger and freight, the former twice and the latter at least once each way between Shelbyville and Louisville, it has never run its trains, either passenger or freight, upon or over that part of its ra’ilroad extending from Shelbyville to Christiansburg; and though the Chesapeake & Ohio Railway Company daily runs its through passenger and freight trains over appellee’s railroad in Shelby county in going to and from Louisville, it
It is further averred in the petition that appellant, by proper proceeding and due notice to the two railroad companies, carried before the Board of Railroad Commissioners of the State its complaint set forth in the petition, and, • after receiving the evidence and duly considering the questions of law and fact presented, tliey decided that the public has a right to the use of local passenger and freight train service over the appellee’s railroad from Shelbyville to Christiansburg, as demanded; that a copy of the findings of the Railroad Commissioners was delivered to each of the railroad companies, but that, notwithstanding the action of the Railroad Commissioners, they failed and refused to comply with its findings and order, and have not yet done so.
A demurrer was filed to the petition by each of the railroad companies. The court overruled the demurrer of appellee, Louisville & Nashville Railroad Company, but sustained that of the Chesapeake & Ohio Railway Company, and the petition as to it was dismissed. The judgment was excepted to by appellant, and an appeal prayed; but, as no appeal has been
After its demurrer to the petition was overruled, the appellee, Louisville & Nashville Railroad Company, filed answer, in which it admitted its failure and refusal to operate either passenger or freight trains on its line of railroad between Shelbyville and Christians-burg, but denied that either of these places or the public elsewhere- were needing or asking for additional railroad facilities between those points. As a further defense it was alleged in the answer that the railroad between those points was constructed by appellee solely for the usé of the Chesapeake & Ohio Railway Company to enable it to make fast time between the east and west, and without purpose on appellee’s part, or expectation upon the part of the public, that it would be used for the transportation of local passengers or freight; that the road is being used by the Chesapeake & Ohio Railway Company exclusively for the running of its fast through passenger and freight trains, and that its use by appellee’s trains for the transportation of passengers or freight would cause a violation of its contract with the Chesapeake & Ohio Railway Company; that the business or traffic between Shelbyville and Christiansburg would not justify the operating of either passenger'or freight trains by appellee from one to the other, and that, if compelled to do so, the expense thereof would entail upon appellee a heavy and continuous loss. It is also averred in the answer that the Statutes of Kentucky only require a railroad company “to run at least one passenger train each way on every day of the ygar, Sundays excepted, over said line;” that the Chesapeake & Ohio Railway Company is running one passenger train each way on every ‘day of the year over the line of railroad in question, and has done so ever since the
Section 772a, Ky. St., 1903, provides: “That all corporations, companies, persons or associations owning and operating a railroad line in this Commonwealth, or any branch of any railroad in this Commonwealth, the length of which exceeds five miles, shall be required and they are hereby directed to run at least one passenger train each way on every day of the year, Sundays excepted, over said line.” * * * Section 792 provides: “When two railroad companies use the same line of roadway in the operation of their •trains, they shall afford along such roadway reasonable and proper facilities for the receiving, forwarding and delivering of passengers and property without discrimination in their rates and charges. All-contracts made between such companies, in so far as the same shall conflict with the provisions of this section, are hereby declared to be null and void and contrary to public policy. The Railroad Commissioners shall enforce the provisions of this section by imposing the same penalties for violation thereof as is provided in section 220 of this act for violation of said section. ” It is disclosed by the record that some time before the institution of this action another was brought in the name of the Commonwealth under sec-. tion 772a, supra, to recover of the Chesapeake & Ohio Railway Company the penalties therein provided for their alleged failure to furnish adequate passenger ac
An examination of the' record leads us to the conclusion that the findings of fact reported by the Railroad Commissioners are supported by the evidence introduced before the trial court. It is an admitted fact that only the trains of the Chesapeake & Ohio Railway Company are operated over that part of appellee’s road extending from Shelbyville to Christians-
There is no merit in the contention of the appellee that its contract with the Chesapeake & Ohio Eailway Company prevents it from affording the public the railroad facilities demanded. Section 792 of the statute, which requires two railroad companies using the same line of railway to afford reasonable facilities for passenger and freight traffic, expressly declares that “all contracts made between such companies, in so far as the same shall conflict with the provisions of
It is strongly insisted for appellee that the income tliat would be derived from operating trains for local passenger and freight trafile on that part of the road where it does not now afford such accommodation, would be insufficient to maintain such accommodation. On this point there is some conflict of evidence, but it was made to appear on the hearing before ihe Railroad Commissioners that appellee’s net income upon its entire railroad system in Kentucky is about $4,000,-000, per annum, and on the Shelbyvi lie branch from Shelbyville to Anchorage $31,000 per annum. > We do not find these facts successfully contradicted in the record. But, in any event, appellee can not be permitted to escape the performance of any duty or obligation imposed by its charter or the general laws of the State by transferring its road, or any part thereof, to a lessee, or upon the ground that its own operation thereof will occasion loss to it.
Being of the opinion that the appellant is entitled to a mandatory injunction to compel appellee to furnish the facilities for local passenger and freight traffic asked in the petition, the judgment is reversed, and cause remanded for further' proceedings consistent with the opinion.
Petition for rehearing by appellee overruled.