44 Ind. App. 155 | Ind. Ct. App. | 1909
On July 18, 1892, and prior thereto, the appellee by virtue of a franchise duly granted by the proper municipal authorities of the city of Evansville, owned and operated a line of railroad through said city, and crossing Franklin street, one of the public streets thereof. Subsequent to the granting of said franchise to appellee, and the
“This agreement made and entered into July 18, 1892, by and between the Evansville Belt Railway Company, a corporation, party of the first part, and the Evansville Street Railroad Company, a corporation, party of the second part, witnesseth: That whereas said first party owns and operates a railroad through the city of Evansville, in the State of Indiana, the main track of which said road crosses Franklin street in said city of Evansville, and whereas the party of the second part is in the act of constructing and intends to operate an electric railroad in the city of Evansville, Indiana, and desires to cross said first party’s railroad track at the intersection of said track with said Franklin street in the city of Evansville, and whereas it is mutually agreed by and between the parties hereto, upon the terms and conditions herein set out, that said second party may cross said first party’s track, and put down at said points of crossing regular, approved railroad crossing frogs at the intersection of said tracks, respectively, in said Franklin street, now, therefore, in consideration of the premises, and the consent of said first party to such crossing, and to the putting down of said crossing by said second party, it is hereby agreed that said second party shall furnish all proper and necessary iron and steel, ties and labor, in and about the construction, maintenance and repairs of said crossing at said point, at its own expense, and without any cost or charge whatever to the first party, said crossing frogs to be made of such pattern and weight of steel as shall be approved by the chief engineer or other proper officer of the first party. The timber on which such frogs are placed to be of such dimension and quality as shall be*158 approved by said engineer. Said second party further agrees at all times to keep said crossing free, unobstructed, in good order and repair, and up to the grade of the street at said intersection, so as not in any way to interfere with the use of said Franklin street, and crossings by the public or said first party, and to conform to all ordinances of said city in such behalf, and whenever necessary to reconstruct or repair said construction and repairing shall be made under the supervision of the roadmaster of the first party, and shall be made subject to his satisfaction, so far as relates to the track and property of said first party, and in ease, in the judgment of the roadmaster, it should become necessary at any time to make any repairs at said points for the purpose of properly maintaining said crossings, said second party shall make the same to the satisfaction of the road-master, upon receipt from him of five days’ notice in that behalf, and the work shall be conducted so as not to interfere with the running of trains, and should said second party at any time, upon receipt of said notice to make repairs, fail to make said repairs within the time prescribed, said first party may make the same, and said second party agrees to reimburse and repay said first party the costs thereof. * * * The second party shall have the right to erect and maintain poles and cross-wires upon the right of way of the first party alongside the tracks hereinbefore permitted to be laid on such right of way at said crossing of the same with said Franklin street for the purpose of carrying the trolley wires of said second party, together with guard wires and anchorages, at such places and in such manner as shall be approved by the chief engineer of the first party, or such other officer as it may select. Said trolley wires are to cross said railroad track of the first party at the intersection of said street at the height of not less than twenty-two feet in the clear above the top of the rails of said first .party’s track, and said second party shall at all times maintain said trolley wires at the hight before mentioned. In the use of the crossing at said intersection the cars of the second party shall bo brought to a stop at a distance of not less than twenty feet nor more than one hundred feet from the railroad track of the first party, and shall not pass over said railroad track of the. first party until it shall be entirely safe for them to do so: nor shall the same pass over without first receiving proper signal from a conductor or other*159 employe of said second party. And whenever a street-ear of the line of said second party’s railroad and a locomotive or train upon the railroad of said first party’s railroad be approaching said crossing at the same time, the priority of right in crossing shall always be yielded by said second party to said first party.”
The appellant is the successor in right and interest to the street railroad company: (1) Through the foreclosure and sale of the property and franchise of the street railroad company upon a mortgage given to a trustee on January 1, 1892, for the benefit of the bondholders of said company, by which the Evansville Electric Railway Company became the owner of the street-car lines; (2) by a deed of transfer from the electric railway company to the appellant.
The crossing of the tracks of the two companies became out of repair, and thereupon, pursuant to the terms of the contract, the appellee’s roadmaster, on June 27, 1905, gave the Evansville Electric Railway Company, which then owned and operated the street-ear line, notice to repair the same, which said company failed to do, and appellee made the necessary repairs at a cost of $424.24. This action was brought to recover from appellant the expenses so incurred by appellee.
The action is based upon the contract which is made a part thereof, coupled with averments showing that both companies are common carriers of passengers; that they operate steam and electric cars over said crossing, carrying their employes and passengers, and averring the necessity of contractual regulations of their respective duties regarding the crossing, and that appellant and its immediate predecessor in right assumed and became bound by all the obligations of the original company. «
Appellant’s demurrer to this complaint was overruled. It thereupon answered, setting up the franchise granted the original company by the municipal authorities of the city of Evansville to construct the street-car line on Franklin street, and averring that on July 18, 1892, it had constructed its
It is further averred that prior to the making of the contract sued upon the Evansville Street Railroad Company had mortgaged all of its property and rights, and that upon a foreclosure of said mortgage and sale of said property under said foreclosure proceeding the Evansville Electric Railway Company purchased the same, and, under the title thus acquired, entered into the possession of the road, and operated the same until December 30, 1906, when the same was, by deed, conveyed to appellant.
Appellee’s demurrer to this answer was sustained, and, appellant refusing to plead further, judgment in favor of appellee for $424.24 was rendered on the demurrer.
The errors assigned here are the overruling of appellant’s demurrer to the complaint, and the sustaining of appellee’s demurrer to appellant’s answer.
It is contended by appellant, in argument, that under the pleadings it is shown: (1) That the contract sued upon is not supported by a valuable consideration; (2) that, the appellant not being a party to the contract, the averments of the complaint are insufficient to show a liability on its part under the same.
None of the many cases, which the industry of counsel has presented to us, in support of the contention that the contract sued upon is without consideration, involves the question of the validity of contracts between street railroad companies and steam railroad companies, relating to their rights and duties with reference to the crossing of their tracks. They involve disputes over the rights of the respective companies, under the law, to the crossing, unaffected by any contractual relations between them. We think the contract sued upon was supported by a valid consideration, and, as between the contracting parties thereto, was valid and enforceable.
Numerous eases are cited as supporting appellee’s contention, and one to which our attention is specially directed is the case of Joy v. St. Louis (1890), 138 U. S. 1, 11 Sup. Ct. 243, 34 L. Ed. 843. In that case the city of St. Louis owned, and through its park commissioners, controlled a certain public park known as .Forest Park, adjoining the city. A railroad corporation, known as the St. Louis County Railroad Company, had laid out and owned some detached strips of right of way, between the city and the park. The St. Louis, Kansas City and Northern Railroad Company owned a line of road between St. Louis and Kansas City, and its road extended up to the northern boundary of the park. It also owned some parts of a right of way between the park and the Union Station in the city of St. Louis, and it desired to obtain the right of way for its road through the park, and thence to the Union Station. On August 11, 1875, the two railroad companies and the park commissioners entered into a contract, by the terms of which the roads were granted the
In this case the appellant acquired no title either to the crossing in question, or to any other part of its road, by virtue of the contract sued upon. It acquired its title to the crossing by virtue of the franchise granted to the street railroad company to construct its road, and this right passed from the street railroad company to it by virtue of the mortgage executed by the street railroad company before the con
The judgment is reversed, with instructions to the court below to overrule the demurrer to the answers.