| Ark. | Feb 11, 1918
(after stating the facts). (1-2) It is contended by counsel that a verdict should have been directed in favor of the defendant. This contention is based on the claim that Hadley, whose alleged negligence is relied on for a recovery by the plaintiff, was not the agent of the defendant company but of the Joplin Union Depot Company. Counsel rely upon the agreement of May, 2, 1910, between the Joplin Union Depot Company and the four railroad companies entering the city of Joplin. It is conceded that the depot company was legally organized under the laws of the State of Missouri, and that the contract between it and the railroad companies was a valid one. It is the duty of the railroad companies to provide proper station house accommodations and safeguard those who may go to stations in order to become passengers or who may be passengers from incoming-trains. This duty also extends to receiving and discharging freight. It also includes the providing of proper warehouses, switch tracks, storage tracks, and sufficient station grounds for these purposes. Four different railway companies, including the parties in this action, entered the city of Joplin. For convenience and economy, the persons interested in the four different railroads organized the Joplin Union Depot Company for the purpose of discharging their.stational duties to the public. In the discharge of that.duty the depot company acquired the necessary yards at Joplin for station facilities and erected thereon its own, station buildings, tracks and other structures. The contract between it and the railway companies established .certain private relations between them which must be considered in any controversy among themselves. By the terms of the contract the depot company employed ail the servants who were used in and about the yards of the company at Joplin. This included telegraph operators and also' discharged the additional duty of assisting- the train dispatchers of the various roads in the operation of trains. These servants are all employed and paid by the depot company. The depot company was paid for its services by the railroad companies in proportion to the number of cars operated over the stational facilities by each company. Hadley, the telegraph operator whose negligence is claimed by the plaintiff to have caused the collision was employed by the depot company. The particular clause of the contract between the depot company and the railroad companies relied upon by counsel for the defendant to establish the liability of the depot company for the negligence of Hadley in this case, is section 7 of article 3. It provides that the depot company “shall be liable for all losses and damages suffered or incurred by the railway companies, or by any other corporation or person, through or by reason of any negligence, carelessness, misconduct or other fault of the depot company, or of any of its officers, agents, employees or servants in the management, operation, maintenance, repair, betterment, extension and renewal of the depot facilities; and all sums paid by the depot cpmpanjr under this clause shall be included as part of the maintenance and operating expenses as provided for in section 6 of article 2 and shall be paid accordingly. ’ ’
We do not think that this clause of the 'contract is susceptible of the construction placed upon it by counsel for the defendant. We have already stated the purposes for which the depot company was organized and the duties which It undertook to perform. By the express terms of the contract the “depot facilities” mean the yards and station grounds at Joplin, including the passenger and freight station buildings and other structures and all the tracks within the yard limits. The depot company had complete jurisdiction within the yard limits at Joplin and had complete authority over the servants engaged in carrying out its powers subject to the right of the railroad companies to ask it to discharge servants, for cause, in certain instances. Section 8 provides that each railway company shall pay the liabilities for loss or damage to property and injury or death to persons incurred by the depot company or by any of the railway companies using the depot facilities by reason of any negligence of any of the servants of such railway company. Section 6, article 2, of the contract requires the railway companies to pay on a wheelage basis, all the expenses of operation and maintenance of the depot facilities.
The contract also provides how the proportion of losses of the depot company shall be paid by each railway company. As we have already seen the depot company has the exclusive management and control of the operation, maintenance and repair of the depot facilities. This contract was entered into between the depot company on the one hand and the four railway companies entering the city of Joplin on the other hand. The depot company was organized exclusively for the purpose of serving -these four railway companies within the yard limits in the city of Joplin. It is true its servants performed services in transmitting messages for the railway companies to points beyond its yard limits, but the corporation itself was organized for the purpose 'of serving the four railway companies within its yard limits at Joplin and its jurisdiction as a corporation did not extend beyond its yard limits. It is evident that all the railway companies were equally interested in the terms of the contract and the contract was entered into for the purpose of defining their mutual duties and obligations to each other.
When all these matters, as expressed in the contract itself, are considered and the particultr clause relied upon is read in the light of the other provisions of the contract, it is plain that it was only intended that, the depot company should he liable for the acts of its servants in the performance of the duties required of it within the yard limits. The negligence of Hadley which is made the basis of a recovery by the plaintiff in this action, was in failing to deliver the train order to one of the conductors of the plaintiff company directing him to meet a passenger train of the defendant at Tipton Ford, a station about ten miles south of Joplin on the railroad of the defendant. His services in this respect did not have anything to do with the management, operation, maintenance, and repair of the depot facilities as expressed in the contract between the depot company and the four railway companies. Therefore the defendant can not rely upon the contract between the depot company and the four railway companies to escape liability in the present ease.
(3) The plaintiff and defendant had fixed their liabilities to each other in cases of this sort by the contract dated December 13, 1907, and the one supplemental thereto, dated April 1, 1910. They alone were parties to these contracts. Section 7, article 3 of the contract of December 13, 1907, provides that in the event that any injury to persons or damage to property shall be caused by the negligence of-a joint employee in the operation of trains over the track covered by the contract the loss shall be borne equally by the two railway companies. It provided further that in the event of a collision caused by the negligence of both parties or joint employee, each party shall at its own expense pick up and remove its own wreckage and each party shall assume for itself damage to its own property. Another clause of section 7, provides that each company shall be liable for any injury to persons or damage to property caused by the negligence of its own servants and that the party at fault shall protect the other party against liability incurred by it on account of such loss. The latter part of the same section contains the following:
“Train dispatchers, telegraph operators and other employees of the Kansas City Company having jurisdiction over the track hereinbefore mentioned, so far as their work is connected with the operation of trains over such track, and employees at the passenger and freight stations at Neosho, such as ticket sellers, freight agents, telegraph operators, warehousemen, baggage handlers, clerks, laborers, and all other persons employed in and about the operation of said passenger and freight station shall be considered as the joint employees.of both companies and not as the sole employees of .either company.”
It is the contention of counsel for the plaintiff that Hadley was the employee of the defendant and that his negligence caused the collision. Therefore they contend that the defendant is liable to them for the whole expense incurred by them in the settlement of claims fbr damages to third persons and for the damage to the plaintiff’s own property.
On the other hand it is contended by the defendant that even if the collision was caused by the negligence of Hadley that he was a joint employee within the meaning of the contract and that it is only liable to the plaintiff for one-half of the damages paid out by it for personal injuries to third persons and is not liable at all for the damage done to plaintiff ’s property. In making this contention counsel rely upon the concluding part of section 7 which we have quoted above. It will be noted that this section provides in substance that train dispatchers, telegraph operators and other employees of the defendant having jurisdiction over the track herein-before mentioned, insofar as their work is connected with the operation of trains over such tracks, shall be considered as the joint employees of both companies and not as the sole employees of either company: The collision occurred between Joplin and Neosho, which was the portion of the track of the defendant covered by the contract in question. The correctness of the contention of the plaintiff in this respect depends upon whether or not Hadley was a telegraph operator within the meaning of those words in the clause of the contract just referred to. Pittsburg, Kansas, which was north of Joplin, was the end of a division of defendant’s line of road. Trains south of that point were operated under the direction of the train dispatcher at Pittsburg. He would send or cause messages to be sent out to Joplin, Neosho and other stations on the line of defendant’s road within his jurisdiction. He sent a message to Hadley at Joplin, to be delivered to the conductor of plaintiff’s motor car going south, to meet at Tipton Ford, number 209, a passenger train on defendant’s line of road going north. This same message was sent by the train dispatcher from his office at Pittsburg to the operator at Neosho to be given to the conductor of the passenger train going north which was to meet the plaintiff’s train going south at Tipton Ford.
It is earnestly insisted by counsel for the plaintiff that Hadley, the operator at Joplin, was not a telegraph operator within the meaning of the clause just referred to. We do not agree with counsel in this contention. We think that the words, “telegraph operator” as used, refer to all telegraph operators who assist the train dispatcher in the operation of trains over the track over which he has jurisdiction./ Such telegraph operators execute the orders delivered to them b3r the train dispatchers in connection with the operation of the trains and we think are joint employees of both companies within the meaning of the contract just as much as are train dispatchers whom they assist in the operation of trains. The word “jurisdiction” in Webster’s New International Dictionary has three meanings. In law it means the legal power to hear and determine a cause. Second: It refers to the authority of a sovereign power to govern or legislate. Third: It is defined as the limits within which any particular power may be exercised. The last is the meaning which the word necessarily has in the clause of the contract referred to. It means the limits of the, road within which' the train dispatcher directs the operation of the trains. For instance, the train dispatcher directs the movement of trains over a particular portion of the road. He has jurisdiction over this particular portion of the road, directing the movement and operation of trains. The telegraph operators who receive and transmit his orders, exercise authority within the same limits so far as their work is connected with the operation of trains over the tracks. Therefore we think Hadley was a joint employee within the meaning of this clause of the contract with reference to the delivery of the message in question to Nicholas, the conductor on plaintiff’s line of railroad. It follows that even if Hadley was negligent in the respects charged, the defendant would not be liable for the whole amount sued for by the plaintiff. It would not be liable at all for the loss or damage to the property of the plaintiff. It would only be liable to the plaintiff for one-half of the amount paid out by it in the settlement of claims for death and personal injuries received by third persons in the collision.
(4). Section 1, article 3, of the contract of December 13, 1907, provides that the plaintiff shall not do any local freight or passenger business, between Neosho and Joplin unless required to do so by some statute or order of a railroad coinmission. In the-event the plaintiff should be required to do such local business,'it was provided that it-should assume without indemnity, full responsibility for all damage to or loss of property or death of or injury to persons carried, unless under statutes or orders of a railroad commission. . By a supplemental agreement of April 1, 1910, it was provided that section 1 of article 3 of the former contract-should apply to local business as fully and with like force and effect as if such local passenger business was done by requirement of a legal statute or order of a railroad commission. The record does not show whether or not any of the passengers killed or injured in the collision were local passengers between Joplin and Neosho within the meaning of the clause of the contract jus,t referred to.' Therefore, they contend that the judgment should be reversed for this reason because under the' clause referred to the plaintiff would be absolutely liable for injuries to such- local passengers if any were on.board at the time the collision occurred. We do not agree with counsel in this contention. It is a cardinal rule of construction of contracts that each clause must be read in the light of the other portions of the contract. It will be noted that the contract-between the parties as to local passengers between Joplin and Neosho was that in the event the plaintiff was required to carry such passengers it should assume, without indemnity, full responsibility for damages on account of carrying such persons the same as though the road was owned and exclusively maintained and operated by it. This refers to damages caused by the defective condition of the track or on account of the negligence of its own servants in operating its trains. It was doubtless recognized that the defendant' in reality as owner of the track would be liable as far as third persons are concerned for all damages-to persons or property sustained by the operation of trains over its track. It conld not escape such liability by giving another company trackage facilities over its road. So we think when this clause of the contract is considered in the light of the other clauses of it, it was intended that the plaintiff in the respects just named, should be liable for damages caused by the condition of the track or by the negligence of its own servants in the operation of trains over it, and should indemnify the defendant for any losses it might suffer thereby. As we have already seen, there was another clause which provided that the liability should be borne equally by the parties when the damage was caused by the negligence of the joint employees. When this construction is placed upon the contract all the clauses in it are harmonized and there is no contradiction between them.
(5) It will be noted from the statement of facts that certain witnesses testified that they saw the conductor, Nicholas, at Joplin hand the engineer of the motor car some orders which he had received at the station there. The witnesses were allowed to state that they saw Nicholas hand some orders to the engineer and saw the engineer read them; that after the engineer finished reading the orders they heard the conductor say to the engineer, there was a clear board or clear track to Neosho.
It is earnestly insisted by counsel for the defendant that the court erred in submitting to the jury the declaration of the conductor to the effect that they had a clear board or track, from Joplin to Neosho. We do not agree with counsel in this contention. It is conceded that it is competent to prove by the witnesses that Nicholas delivered some orders to the engineer and that the engineer read them. These were acts of the parties in the discharge of their duties. It was the duty of the conductor to receive the train orders and to deliver them to the engineer. The engineer read the orders delivered to him by the conductor. The train was about to leave the station and these orders were the guide of the conductor and the engineer in running the train. It was highly essential that each of them should understand the orders. The declaration of the conductor to the effect that they had a clear board to Neosho and the assent of the engineer thereto was calculated to explain their acts and to show that they both understood that they were not to stop at any intermediate point to await the arrival of the north bound train. All that occurred between the parties at the time the conductor delivered the orders to the engineer was so connected as to constitute one transaction and for that reason distinguished the declaration from mere hearsay. The declaration illustrated the character of the principal transaction, was contemporaneous with it, and derived some degree of credit from it. The main transaction may extend over a longer or shorter period .of time according to its nature. Jones on Evidence (2 ed.), secs. 356 and 358, and Lund v. Inhabitants of Tyngsborough, 9 Cush. (Mass). 36.
(6) It is next insisted that there is no testimony tending to show that there was any negligence on the part of Hadley in failing to deliver the train order in question but in this contention we can not agree- with counsel. It is true Hadley testified in positive terms that he did deliver the order to Nicholas and exhibited a train sheet or record, purporting to have been signed by Nicholas acknowledging the receipt of it. Expert witnesses were introduced who after comparing the signature with admittedly genuine signatures of Nicholas, testified that Nicholas had signed the train sheet or record. There were also other facts and circumstances tending to corroborate the statement of Hadley, but it can not be said that this testimony is uncontradicted. Nicholas had been long in the service of the. plaintiff and was perfectly familiar with his duties. He had run over this part of the line of road many times and was thoroughly familiar with it. It was shown, that he stated to the engineer after delivering some orders, and they had been read by the engineer, that he had a dear track from Joplin to Neosho. The engineer acquiesced in his statement and the train pulled out. The motor car was not stopped by Nicholas at Tipton Ford as directed by the order in question. Just after the car passed the station Nicholas waved a friendly greeting to another employee of the company whom he passed. Experts testify that the signature to the train sheet or record referred to above Avas not the genuine signature of Nicholas. The collision occurred just beyond the station of Tipton Ford and under ail the facts and circumstances the jury was justified in inferring that Nicholas did not receive the order or he would have stopped his train at Tipton' Ford in compliance with it.
(7) This action was brought by the plaintiff, a corporation, organized under the laws of the State of Missouri, against the defendant, a corporation also organized under the laws of the State of Missouri, in the Benton circuit court, in Benton County, Arkansas.
The defendant filed a petition to remove the cause to the United. States District Court for. the Ft. Smith Division of the Western District of Arkansas, alleging a Federal question, and the order of removal was granted. The plaintiff filed in the Federal Court a petition to remand the case. This petition was granted and an order was made remanding the case to the State court.
Section 28 of the United States Judicial Code is as follows: “Whenever any cause shall be removed from any State court into the District Court of the United States, and the District Court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed.”
In the construction of this provision in St. L., I. M. & S. R. Co. v. Neal, 83 Ark. 591" date_filed="1906-10-15" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Neal">83 Ark. 591, the court held that where a cause was removed from a State court, and was remanded by the latter court to the former court, the propriety of the remanding order will not be reviewed in the State court. This view of the- statute is in accord with the decisions of the Supreme Court of the United States, some of which are cited in the opinion in that case and need not he repeated here.
The only disputed issue of fact in the present case was in regard to the alleged negligence of Hadley in failing to deliver the telegram in question to Nicholas, the conductor of the motor car which collided with the passenger car of the defendant at Tipton Ford and formed the basis of this lawsuit. That question has been submitted to the jury under proper instructions upon competent evidence and the finding of the jury is against the contention of the defendant. There was evidence of a substantial character to support .the verdict of the jury in this respect and it follows that the liability of the defendant to the plaintiff has been established.
Under the views we have expressed in this opinion, the defendant was not liable to the plaintiff for the value of the property of the plaintiff destroyed in the collision. It was only liable to the plaintiff for one-half of the amount of the damages paid by the plaintiff to third persons in settlement of personal injuries and'death losses caused'by the collision. .
To correct the error of .the court in these respects the judgment will be reversed and judgment will be entered here for the sum of $87,165.18, being one-half of $154,681.72, the amount expended in settling personal injury claims, and interest on same at six per cent, from the date of payment until December 26, 1916, the date of demand, and that this amount, $87,165.18, bear interest at six per "cent, from April 13,1917, the date of the judgment in the circuit court.
It is so ordered.