Opinion
Rehearing Denied May 26, 1960.
Hearing Granted June 29, 1960.
Opinion vacated 11 Cal.Rptr. 751.
Herbert A. Waterman, San Francisco, for appellant Southern Pacific co.
Hardin, Fletcher, Cook & Hayes, Oakland, for appellant Calif. Rock & Gravel Co.
Cyril Viadro, San Francisco, of counsel.
J. Frank Coakley, Dist. Atty., Oakland, Appelbaum, Mitchell & Bennett, Bryant M. Bennett, Oakland, for respondent County of Alameda.
TAYLOR, Justice pro tem.
This is an appeal from a judgment by the court for the plaintiff County of Alameda on its complaint against the defendants Southern Pacific Company and California Rock and Gravel Co., and for the Southern Pacific Company on its cross-complaint against California Rock and Gravel Co. The parties will hereafter be referred to as 'Alameda', 'Southern', and 'Rock'.
The action is one for indemnification and is the outgrowth of a trial in the superior court in Alameda County in which R. Cali & Bro., a corporation, received a judgment in the amount of $5,596.23 plus costs in the amount of $272.20 against Alameda and Southern for damages to plaintiff Cali's truck, incurred on March 4, 1954, as a result of striking a hole or rut at a railroad spur track crossing constructed for the purpose of servicing Rock's gravel plant and extending across County Road No. 1530 between Livermore and Pleasanton in Alameda County. The defendant Rock was granted a nonsuit in that case, and one-half of the judgment was paid by each of the defendants Alameda and Southern. Cali's complaint upon which judgment was rendered alleged that the defendants failed to use ordinary care to repair and maintain the crossing, negligently permitted large holes to exist and that the damage was proximately caused by their carelessness and negligence.
In the present action Alameda was awarded indemnity against Southern and Rock in the amount of $3,936.82, which was the county's contribution to Cali's judgment plus the county's attorneys' fees incurred in the Cali trial. Southern was awarded indemnity on their cross-complaint against Rock, on the basis of an industrial track agreement, in the amount of $3,982.52, which was Southern's contribution to the Cali judgment plus attorneys' fees and costs incurred in the Cali trial, and it was further ordered that Rock pay Southern There are several documents important to the trial court's findings which must be reviewed in the context of related facts. On October 25, 1932, the Board of Supervisors of Alameda County passed the following resolution: 'That a permit be and it is hereby granted to California Rock and Gravel Company to construct, reconstruct, maintain and operate spur tracks across County Roads No. 1530 and No. 2041 * * *.' (Emphasis added.) The resolution further stated: 'This permit is granted upon the following conditions: The California Rock and Gravel Company shall place the road ways back in the same condition as they were before said excavation was made and to the entire satisfaction of the County Surveyor of the County of Alameda.' Additional conditions were (1) that Rock would stop its trains before crossing the county highway or maintain a flagman at the crossing; (2) that in case of revocation or abandonment Rock must remove the tracks and restore the highway surface to its condition prior to the installation of the spur track, to the satisfaction of the county surveyor; (3) lastly, that 'the acceptance of this permit shall constitute an agreement on the part of the California Rock and Gravel Company to perform the conditions herein specified.' The purpose of the spur tracks and the crossing was to serve a gravel plant located on Rock's land adjoining the highway to the south.
On November 21, 1932, after application duly made, the State Railroad Commission made an order authorizing Southern to construct the same crossing and providing that 'the entire expense of constructing and thereafter maintaining the crossings in good and first-class condition for safe and convenient use of the public, shall be borne by applicant.' The order also provided that the authorization should 'lapse and become void if not exercised within one (1) year from the date hereof unless further time is granted by subsequent order.' Southern, however, did not construct the crossing. It was actually installed by a contractor employed by Rock in 1932 and has been continuously owned by Rock and used by Southern since that date. The evidence showed that Rock complied with the conditions in the county permit at the time of construction. (Emphasis added.)
On December 28, 1932, Southern and Rock executed an 'Industrial Track Agreement,' prepared by Southern, defining the relationship of the parties in the use of the spur track. The agreement contained the following provisions:
'4. Railroad agrees to operate said track and to serve Industry thereon, subject to any lawful charges that may be made by Railroad for such service; said track shall be under full control of Railroad and may be used at discretion of Railroad for its business or for shipment or delivery of any freight, but not to the detriment of the business of the Industry. * * *
',6. Industry hereby releases and discharges and agrees to indemnify and save harmless said Railroad, its agents, successors and assigns, from all liability for destruction of, or damage to any property of the Industry and any property in the possession or custody of Industry by fire, resulting directly or indirectly from the operation of said track by Railroad, its agents, successors or assigns. * * *
'8. Railroad shall, at its own cost and expense, construct and thereafter maintain that portion of said track and its appurtenances extending from the point of initial switch thereof, where said track diverges from the track of Railroad, to the clearance point in the center line thereof, which said clearance point is thirteen (13) feet distant measured at right angles from the center line of the track from which said track diverges, and Industry shall, at its own cost and expense, '9. In the event Industry fails, neglects or refuses to maintain the portion of said track and its appurtenances, which under the terms of this agreement it has agreed to maintain in good condition and repair and to the satisfaction of Railroad for the operation of trains and cars thereon and thereover, Railroad may perform such work as may be necessary, at the expense of Industry, which expense Industry agrees to pay. * * *
'11. In addition to and not in qualification of the provisions of Section 6 of this agreement, Industry hereby releases and discharges and agrees to indemnify and save harmless said Railroad, its agents, successors and assigns, from all liability resulting directly or indirectly from the operation over said track by Industry of its locomotive crane and/or any other equipment of Industry.' (Emphasis added.)
Railroad was also given the right in the agreement to discontinue service to Rock in the event Rock failed to perform any of the covenants in the contract.
Alameda had a large maintenance crew stationed at Livermore, 2 miles from the crossing, and the entire highway, including the crossing, was resurfaced by the county in 1934 and again in 1943-1944. The Rock plant superintendent, Silva, testified that when he saw defects in the crossing, which he frequently inspected, it was his practice to inform his superiors, and that he recalled one occasion, more than three years before the Cali accident, when he did so, and Southern repaired the crossing and billed Rock.
On April 27, 1951 Alameda gave written notice ot Southern, that the crossing was in need of repairs. On April 20, 1953, Southern addressed a letter to Rock suggesting that Southern repair the crossing at rock's expense, but the work was never done prior to the Cali accident on March 4, 1954. During the period between 1951-1954 Southern installed a cross-back sign at the crossing and made repairs to other parts of the spur track on Rock's authorization and billed Rock therefor.
The testimony and pictures in evidence disclose that the holes and depressions in the highway at the time of the Cali accident were immediately adjacent to the tracks. There was testimony that the usual division of maintenance between a railroad or owner of the track and the highway authorities is to have the former maintain the crossing between the rails and within two feet of the highway on either side. Southern crossed the highway four times a day for a long period prior to the accident with engines weighing 300,000 lbs. and 10 to 20 cars weighing up to 160,000 1bs. each and when the trains used the tracks the rails flexed and rails and joints became loose. The highway was being used by approximately 3800 automobiles per day.
The trial court based its judgment in favor of Alameda for indemnity against Rock and Southern on findings that the primary negligence of Rock and Southern in failing to maintain the crossing and permitting a dangerous condition to exist within two feet of the rails was the proximate cause of the Cali accident, and also on findings that obligations to indemnify Alameda were imposed on Rock and Southern by their respective permits to install the crossing granted by Alameda County and the State Railroad Commission, and on Rock by the industrial track agreement between Rock and Southern on the theory that Alameda is a third party beneficiary thereunder. The judgment in favor of Southern on its cross-complaint is based solely on a finding that Plaintiff Alameda contends that since the judgment in the trial court was in favor of defendant Southern on its cross-complaint for indemnity against Rock, Southern is not an aggrieved party and has no right to appeal. However, Southern in its answer and cross-complaint had not only asked for judgment from Rock, but also a dismissal of plaintiff's action against Southern. The trial court having found for plaintiff Alameda against Southern, the latter did not receive all the relief prayed for and is clearly aggrieved. Failure to achieve this relief could, indeed, impose a damage loss on Southern if, for any reason, it was unable to satisfy its judgment against Rock. '[A]ny party aggrieved by an appealable order has a right to appeal therefrom, even though the order is in form apparently favorable to him.' Spencer v. Nelson, 30 Cal.2d 162, 164, 180 P.2d 886, 887; Royat v. Roberts, 107 Cal.App.2d 447, 449, 237 P.2d 25.
Although the trial court also made an additional finding that there were holes and ruts within 4 feet of the rails, there was no evidence in the transcript of any ruts extending out that far and the photographs in evidence place the depressions immediately adjacent to the tracks.
In considering the findings upon which the trial court based its judgment in this case we must first interpret and evaluate the permits and the industrial track agreement, related above, as they pertain to the question of indemnification.
We cannot agree with the trial court's conclusion that the Alameda County resolution granting Rock permission 'to construct, reconstruct, maintain and operate' the spur track across the highway imposed a contractual duty upon Rock to maintain the pavement at the crossing and to indemnify Alameda County in the event that its failure to maintain resulted in a judgment against the county. There was no extrinsic evidence introduced on the interpretation of the written permit, and the appellate court is not bound by the construction given by the trial court. in re Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825; Meyer v. State Board of Equalization, 42 Cal.2d 376, 381, 267 P.2d 257. Furthermore, the permit must be most strongly construced against Alameda, since it was drafted by the county. Basin Oil Co. of California v. Baash-Ross Tool Co., 125, Cal.App.2d 578, 592, 271 P.2d 122; Gillespie v. Ormsby, 126 Cal.App.2d 513, 522, 272 P.2d 949. The opening clause of the county resolution merely permits the defendant Rock to 'construct, reconstruct, maintain and operate' the spur track, and does not compel Rock to do so, or impose any obligations.
The conditions upon which the permit was granted are clearly set out. The county resolution requires that Rock restore the highway to its previous condition after installation of the tracks, or after revocation or abandonment; that trains must stop at the crossing unless a flagman is on the job; and that 'acceptance of this permit shall constitute an agreement * * * to perform the conditions herein specified.' The maintenance of the pavement after the tracks are installed is significantly lacking as a condition. The failure to include, implies a purpose to exclude. Collins v. City and County of San Francisco, 112 Cal.App.2d 719, 731, 247 P.2d 362; Loyalton Electric Light Co. v. California Pine Box & Lumber Co., 22 Cal.App. 75, 77, 133 P. 323. The conduct of Alameda in repairing the highway at the crossing in 1934 and again in 1943-1944, and fact that it contacted Southern rather than Rock about the condition of the crossing in 1951, indicates that the county did not consider Rock obligated by the permit to maintain the pavement at the crossing. Since the permit did not require Rock to maintain the crossing we conclude that Alameda's right to indemnity from Rock for the Cali judgment cannot be based on the county's resolution.
We agree with the trial court's finding that the industrial track agreement between Southern and Rock imposed upon Rock a contractual duty to maintain the pavement at the crossing, but, in our opinion, this agreement did not provide Southern a right of indemnity against Rock for the damages awarded Cali, nor did it give a similar right to Alameda as a third party beneficiary.
The industrial track agreement provides in section 8 thereof that while Southern American Automobile Ins. Co. v. Seaboard Surety Co.,
City of Oakland v. Oakland Unified School Dist.,It should also be noted that the agreement specifies certain indemnity provisions. Rock indemnifies Southern from liability for the destruction of Rock's property resulting from the operation of the railroad. Rock also indemnifies Southern from liability resulting from the operation of any of Rock's cranes or other equipment on the tracks. The agreement is significantly silent as to indemnity from liability to members of the public resulting from unsafe conditions at the crossing. Under well established rules of construction, the inclusion of certain indemnity provisions in the contract would imply an intent to exclude all others. Loyalton Electric Light Co. v. California Pine Box & Lumber Co., supra, 22 Cal.App. 75, 133 P. 323. Furthermore, the agreement in section 9 gave Southern, itself, the alternate privilege of maintaining the crossing at Rock's expense and Rock's plant superintendent testified that repairs were so made by Southern on one occasion and Rock billed therefor. Also, Southern had the right to cease all service if Rock failed to properly maintain the crossing. Had the parties intended to include the additional right of indemnity, such a provision would have been spelled out in the contract. We conclude that Southern's right to be indemnified by Rock for the Cali judgment cannot be predicated on contractual grounds.
Southern contends, however, that its right to indemnity against Rock should be implied under indemnification principles laid down in San Francisco Unified School Dist. v. California Bldg. Maintenance Co., 162 Cal.App.2d 434, 328 P.2d 785 and De La Forest v. Yandle, 171 Cal.App.2d 59, 340 P.2d 52. In the San Francisco Unified School case, the maintenance company allowed its workmen to wash windows without the safety appliances it had agreed to use in its contract with the school. A workman was injured and recovered judgment from the school. The contract provided that the maintenance company 'is held responsible for payment of any and all damages' (162 Cal.App.2d at page 437, 328 P.2d at page 787) resulting from its operations. The court found in reversing a nonsuit that there was an implied if not an express contract to indemnify. No such language from which a right to indemnity might be implied can be found in the industrial track agreement in the instant case.
However, the authorities cites by the court in the San Francisco Unified School case would permit indemnity in certain cases, in the absence of any such contractual provision. The court relied on Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 335 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 and Ryan Stevedoring Co. v. PanAtlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. In both cases shipowners were allowed indemnity from stevedoring companies which had contracted to load ships, where employees of shipowners obtained judgments against them for injuries sustained because of faulty stowage of cargo. In neither case did the contracts contain any provisions for indemnity. The court said, in commenting on the Weyerhaeuser case: 'It reasoned that the Contractor breached its contract with the shipowner; that such breach foreseeably led to damages being recovered from the shipowner; that under such circumstances the shipowner 'was entitled to indemnity absent The court also relied on Busch & Latta Painting Co. v. Woermann Construction Co., 310 Mo. 419, 276 S.W. 614, where it was said: 'In all cases where one party creates the condition which causes the injury, and the other does not join therein, but is exposed to liability, and suffers damages on account of it, the rule that one of two joint tort-feasors cannot maintain an action against the other for indemnity does not apply.' 310 Mo. at page 437, 276 S.W. at page 619. And again in Phoenix Bridge Co. v. Creem, 102 A.D. 354, 92 N.Y.S. 855, affirmed without opinion 185 N.Y. 580, 78 N.E. 1110, the court said: 'In other words, while both the plaintiff and the defendants were equally culpable and equally liable to the traveling public for the omission of duty which resulted in the injury, yet, as between themselves, the plaintiff was entitled to rely upon the defendants to discharge the duty because of their contractual relations, and the former could only be deprived of the right of indemnity by proof that it did in fact participate in some manner in the omission, beyond its mere failure to perform the duty imposed on both by the law.' 92 N.Y.S. at pages 856-857. (Emphasis added)
It is clear from these cases that while indemnity is allowed in absence of a specific contractual provision therefor where one party is primarily or actively negligent and the other merely passively negligent, there can be no indemnification in any event where the parties are equally culpable when compared to each other or the person seeking to be indemnified did, in fact, actively participate in the creation of the dangerous condition.
We do not think that Southern can come within the exception of the common-law rule against contribution between between joint tort-feasors. (This was the rule in California prior to the statutory change in 1957. Code Civ.Proc. secs. 875-880.) It cannot be said that Southern was merely passively negligent or that it did not participate with Rock in the omission, 'beyond its mere failure to perform the duty [to the public] imposed on both [parties] by the law.' Phoenix Bridge Co. v. Creem, supra, 92 N.Y.S. 855, 857.
The trial court found Southern was guilty of primary negligence. The industrial track agreement provided 'said track shall be under full control of Railroad and may be used at discretion of Railroad for its business.' (Emphasis added). southern had been using the crossing extensively in hauling Rock's produce for its own profit with heavy engines and heavily loaded cars each day for many years before th Cali accident. The testimony was that when Southern's trains used the tracks the rails flexed and the joints and rails became loose. The photographs in evidence clearly show that the damage to the pavement was immediately adjacent to the tracks. Southern's employees saw the condition each day, and were warned by letter from the county three years before the accident. Under the industrial track agreement Southern had the option of either discontinuing service to Rock, or fixing the crossing itself and charging it to Rock. There was evidence that Southern actively participated in the creation of the faulty condition of the crossing in addition to neglecting to remedy it, and we conclude that it is in paridelicto with Rock as one primarily negligent and thus has no right of indemnity against Rock under the principle set forth in San Francisco Unified School Dist. v. California Bldg. Maintenance Co., supra, 162 Cal.App.2d 434, 328 P.2d 785.
Since there is no contractual right of indemnity against Rock given to Southern under the industrial track agreement, Alameda County has no such right thereunder as a third party beneficiary and we need not, here, consider the legal requirements of third party beneficiary contracts.
Southern did not construct the crossing and thus did not exercise the permit granted to it by the Railroad Commission. Consequently, The trial court found that the primary negligence of Rock and Southern in failing to maintain said crossing in a safe condition was the proximate cause of the damage to the Cali truck. Thus, the judgment for Alameda against both Rock and Southern was not based on contract alone but also on the common-law tort theory of indemnification. 'If any finding upon which a judgment may rest is supported by evidence it is regarded as the one upon which it did rest, although the others are unsupported.' Stanbury California Trial and Appellate Practice, Vol. 1, sec. 725, citing cases.
We agree that Rock and Southern were primarily negligent, and that Alameda should be indemnified by them. In so holding, we recognize that the liability of the country for the faulty condition of the highway under the Public Liability Act of 1923 (Gov.Code, secs. 53050-53051) is nondelegable. Bosqui v. City of San Bernardino, 2 Cal.2d 747, 758-759, 43 P.2d 547. Furthermore, it is neither derivative nor vicarious but is a direct liability based upon the county's own negligence or omission of duty to repair the crossing. Peters v. City and County of San Francisco, 41 Cal.2d 419, 431, 260 P.2d 55.
However, we think the principles enuncited in City and County of San Francisco v. Ho Sing, 51 Cal.2d 127, 330 P.2d 802, govern the situation in the present case. In the Ho Sing case, previous owners had constructed a skylight in the abutting sidewalk of a building purchased by the defendants Ho. The plaintiff tripped and fell because of a crack in the skylight and obtained a judgment against the city, which in turn was allowed indemnity against the property owners. The Supreme Court, citing the Peters case, recognized that the city's liability to pedestrians was not dependent on or derivative from that of the landowner but was joint and direct. However, the court held 'where an adjoining property owner for the exclusive benefit of his own property places in a public street or sidewalk some artificial structure and a city is compelled to pay compensation in damages to a member of the public injured thereby the city has a right to recover the amount so paid from the property owner by way of indemnity.' 51 Cal.2d at page 139, 330 P.2d at page 808.
The defendant Rock owns the land abutting the county highway, constructed the crossing for its own benefit and was found to have negligently permitted the dangerous condition to develop and exist. There is ample evidence to support the finding. The holes and ruts were immediately adjacent to the rails and we are not impressed with defendant Rock's argument that the artifical condition was confined to the bare tracks. There was testimony at the trial that the normal division of maintenance between a railroad or owner of the tracks and the highway authorities is to have the former maintain the crossing between the rails and within two feet of the highway on either side. From the evidence the court could have reasonably inferred that the dangerous condition at the crossing was, in large part, a result of the use of the tracks. Rock's superintendent not only continually observed the condition himself but was informed by Southern in 1953 that the crossing needed repair. They chose to do nothing about the situation prior to the accident and we conclude that under the ruling of the Ho Sing case, the plaintiff Alameda has a right to be indemnified by Rock for the loss it sustained in payment of the Cali judgment and attorneys' fees at the trial.
In determining whether liability to indemnify Alameda should also be extended to Southern we must examine the reasoning of the courts in City and County of San Franciso v. Ho Sing, supra, 51 Cal.2d 127, 330 P.2d 802, and San Francisco Unified School Dist. v. California Bldg. Maintenance Co., supra, 162 Cal.App.2d 434, 328 P.2d 785. In the San Francisco Unified School case, the court cited authorities to the effect that the right to indemnity is based "* * * upon some recognized exception to the general rule, as that the parties were not in pari delicto as to each other, or that the negligence of one was primary or direct or active, while that of the other secondary, indirect, passive or constructive." 162 Cal.App.2d at page 444, 328 P.2d at page 792. (140 A.L.R. 1306)
In the Ho Sing case, the court, in reviewing the plaintiff city's argument, cited Washington Gas Light Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712. Here indemnity was permitted to the district for a damage judgment rendered against it in a tripping case resulting from the faulty maintenance of a gas box installed in the district street by the defendant utility. This case did not involve an adjacent property owner. In the Ho Sing case, the court cited 4 Dillon, Municipal Corporations, fifth edition, section 1728, page 3032, as follows: "If a municipal corporation be held liable for damages sustained in consequence of the unsafe condition of the sidewalks or streets, it has a remedy over against the person by whose wrongful act or conduct the sidewalk or street was rendered unsafe, unless the corporation was itself a wrong-doer, as between itself and the author of the nuisance * * *." 51 Cal.2d at page 134, 330 P.2d at page 806. The court also cited Prosser on Torts, second edition, page 250, as follows: "Again, it is quite generally agreed that there may be indemnity in favor of one who was under only a secondary duty where another was primarily responsible, as where a municipal corporation, held liable for failure to keep its streets in safe condition, seeks recovery from the person who created the condition or a property owner who permitted it." 51 Cal.2d at page 134, 330 P.2d at page 806. (Emphasis added.)
In considering the reasoning adopted by the courts and other authorities for the exception to the rule against indemnification or contribution among joint tortfeasors, we observe no logical basis for exempting Southern from liability to Alameda. While Southern never did exercise its permit from the Railroad Commission to construct the crossing, and therefore may not have been bound by the conditions of the order granting the permit, yet as a common carrier under public franchise it owned a nondelegable duty to refrain from creating or maintaining a danger to the public in the operation of its business. Snyder v. Southern California Edison Co., 44 Cal.2d 793, 798, 285 P.2d 912, citing other cases; Restatement of Torts, sec. 428. As stated previously, the evidence disclosed that Southern used the crossing extensively with heavy equipment for its own profit over many years prior to the Cali accident. The trains caused the rails to flex and loosened the joints. The photographs show the holes and ruts immediately adjacent to the rails. The county warned Southern of the condition three years before the accident. Southern's employees viewed the situation each day. Under its agreement with rock, Southern had 'full control' of the tracks and could have repaired the crossing without cost to itself, or discontinued its service. The court found Southern was guilty of primary negligence in causing the danger to exist and in failing to repair it. We agree and therefore conclude that Southern as well as defendant Rock comes within the reasoning of the Ho Sing case, and should be required to indemnify Alameda County.
Defendants cite section 95 of the Restatement of Restitution and contend that failure on the part of the county to repair the pavement at the crossing for a period of three years after requesting Southern to do so, amounts to acquiescence and is a defense to this action. However, a public body's responsibility in the all instances under the Public Liability Act depends upon actual or constructive notice of the defect and whether there was acquiescence due to the time element under the particular circumstances of this case was a question of fact for the trial court which was resolved in favor of Baltimore & O. R. Co. v. Howard County Com'rs,
The judgment for plaintiff Alameda on plaintiff's complaint is affirmed. the judgment for defendant Southern on its cross-complaint is reversed.
BRAY, P.J., and TOBRINER, J., concur.