Lake Shore Elec. R. v. Toledo Terminal R. ( 1923 )

CHITTENDEN, J.:

Epitomized Opinion

The Toledo Terminal Company sued The Lake Shore Electric Railway in common pleas court of Lucas County for $591.11, which sum was one-half the sum expended for repairs and upkeep of tracks. These repairs were made at the intersection of the two railroads. Plaintiff -claimed that under G. C. 3775, defendant was obliged to pay one-half of the cost of repairs at this intersection. Defendant claimed that when plaintiff constructed its tracks across those of defendant, the former agreed to pay all the expense for the upkeep of that portion of the two roads. Defendant also filed a cross petition for half the expense of repairs and maintenance of a derailing device located at the crossing. As both parties filed a motion for- judgment in its favor, on the pleadings, the cause was submitted to the court. The lower court -tendered judgment for the plaintiff for $357.45,-which was the amount of plaintiff’s claim less the amount of the counter-claim. Thereupon defendant prosecuted error. The Court of Appeals held:

1. Section 3775 G. C. does not purport to relate to interurban railroads, but relates to crossings of street railroad tracks and steam railroad tracks when the crossings are at grade on a street in a municipality.

2. As the expense of the upkeep of the crossing was fixed by the terms of the agreement, this fixes the liability for these repairs. Judgment reversed.