Whalen v. Ruiz ( 1953 )

The majority opinion holds that since an easement was granted by the railroad company to the counties to use the bridge for road purposes, the company was under no obligation to keep the bridge in a safe condition. The whole tenor of the 1910 agreement and other factors points to at least joint control of the roadway part of the bridge by the railroad company and the counties.

The 1910 agreement stated that it was made under statutory authority. (Stats. 1907, p. 982.) That statute authorizes agreements between counties and private persons for the acquisition and maintenance of bridges. Such an agreement shall provide for the "joint use" of a bridge by the parties and it shall be referred to as a "joint" bridge. With that statutory base the obvious purpose of the 1910 contract was that the bridge was to be "jointly" used and hence "jointly" owned and controlled by the railroad company and the counties.

The 1910 contract, after referring to the easement to be granted to the counties, provides that the railroad company (after 1916) shall, for a stated sum, "keep in repair and operate and police" the road portion of the bridge. Why was that undertaken by the company? This question is answered by the contract as it states, immediately preceding the covenant to repair and operate, as follows: "Whereas, it is recognized" (emphasis added) that after 1916, the upkeep is chargeable to the counties but the counties desire that the railroad company should agree "to keep in repair and operate the same, as it is more convenient for the [company] to do so." (Emphasis added.) This clearly shows that the railroad company should continue as before — have control of the bridge including the roadway and be in charge of its maintenance; that although the counties may, in a technical sense, have an easement for a roadway over the bridge, the railroad company still had joint control and obligated itself to do anything the counties would be required to do with reference to keeping the bridge safe.

This thought was further indicated by the 1934 contract between the counties, state, and the railroad company, in which the state was authorized to make some improvements in the road part of the bridge. If the railroad company no longer had any control or interest in the road part of the bridge by reason of the easement granted to the counties, there would have been no occasion for it to be a party to that contract and consent to the improvements. It is recited in that contract that the railroad company and the counties are willing to permit the state to make the improvements on specified conditions however. The conditions are, among others, that the work must be performed to thesatisfaction of the railroad company; that during the time the bridge is being used by the state for detour purposes the state shall maintain the road portion at its expense, and if traffic conditions require additional policing during that time the state shall furnish same, all of which indicates that the state was assuming that which was the duty of the railroad company; and finally that all the terms of the 1910 contract shall remain in force, that is, shall become revitalized from thenceforth, although the traffic conditions and requirements to keep the bridge safe had vastly increased in 1934 from those existing when the 1910 contract was made.

The only reasonable conclusion from these factors is that the words "repair," "operate" and "police" were not used in a narrow sense; that the railroad company retained at least joint control of the road part of the bridge and was obligated to maintain it in a safe condition.

Reliance is placed by the majority on the testimony of the railroad company's division engineer that the company had made no structural changes in the road part of the bridge for 30 years and the counties never made demand for any. The complete answer to this argument is that it does not appear that the counties were apprised that any changes were necessary.

The words "operate" and "repair" must be defined according to the context in which they were used. The thing to be maintained was a roadway. The counties would be concerned with only one thing, namely, that the bridge be kept safe for those who used it, the travelling public. "Operate" means to have control of (State v. Thomason, 224 Iowa 499 [276 N.W. 619]; Booth v.State, 179 Ind. 405 [100 N.E. 563, Ann.Cas. 1915D 987, L.R.A. 1915B 420]; Southern Ry. Co. v. Flynt, 203 Ala. 65 [82 So. 25]; Bosse v. Marye, 80 Cal.App. 109 [250 P. 693]) and includes doing so safely. (McKim v. City of Philadelphia,217 Pa. 243 [66 A. 340].) "To repair the roads in question means to make them over, not necessarily exactly like they were before, nor in exact accord with the original plans, but, utilizing the work done in constructing the roads originally under the original plans, make them over with such material for resurfacing asexperience and advance in the science of road building teach will be the best and the most economical in the long run, thereby giving the landowners value received for their investment." (Cowan v. Thompson, 178 Ark. 44 [9 S.W.2d 790, 792].) (Emphasis added.) The obligation to repair was to run indefinitely in the future, thus contemplating that future conditions must be considered in determining what would be necessary to do to keep the road portion in repair. Those conditions thus include changes in traffic conditions and also methods of operation which may produce the necessity for extensive repairs. The obligation to make such repairs was placed on the railroad company by the 1910 agreement and continued in force until the happening of the accident here involved. Since the court found that the unsafe condition of the roadway on the bridge was a proximate cause of the accident, the liability of the railroad company was established.

I would therefore reverse the judgment.