City of Emporia v. Emporia Railway & Light Co.

Citations

• 92 Kan. 232
• 139 P. 1185
• 1914 Kan. LEXIS 200

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — Street Railway Must Maintain Its Track in Good Condition for Public Use and Trowel. A street railway company may be compelled by mandamus to restore its track to a condition that will present no obstacle to the use and travel as a public thoroughfare of a paved street over which it has been laid, although the cause of its defective condition is due to a faulty method of paving employed by a paving company pursuant to a contract with the street railway company, and although the city engineer suffered such method to be used without protest.</p> <p>2. Same — Duty Imposed — Regardless of Charter, Franchise, or Contract. The obligation thus to restore its track to a proper condition devolves upon the street railway company, regardless of its charter or franchise or contract with the 'city, as one of the common-law duties which it owes to the city and to the public, which may be enforced by mandamus notwithstanding the city has a contract right to make the repair and sue the railway company therefor, and may also have the right to look to the paving company and its bondsmen for damages.</p>