Opinion
September 11, 1958 —
October 7, 1958.
APPEAL from an order of the circuit court for St. Croix county: ROBERT G. VARNUM, Circuit Judge. Affirmed.
For the appellant there was a brief by Stafford, Pfiffner Stafford of Chippewa Falls, and oral argument by Robert F. Pfiffner.
For the respondent there was a brief by Wilcox Sullivan of Eau Claire, attorneys, and Warren Newcome of St. Paul, Minnesota, of counsel, and oral argument by Francis J. Wilcox.
This appeal requires only the construction of an indemnity agreement between a railroad and an industry served by it.
Plaintiff Huck, an employee of Doughboy Industries, Inc., was injured when a freight car on which he was standing was jolted by the impact of another freight car which other Doughboy employees had started in motion on a spur track built by the defendant Chicago, St. Paul, Minneapolis Omaha Railway Company on land owned by Doughboy adjacent to Doughboy's manufacturing plant. Huck sued the Omaha for damages, alleging that his injuries were caused by a defect in the hand brake on the moving car constituting a violation of the Federal Safety Appliance Act, and by the Omaha's negligence in failing to make proper inspection of the brake. The Omaha answered denying liability, obtained an order interpleading Doughboy as a party defendant, and cross-complained against Doughboy alleging that if Omaha should be held liable to Huck, Doughboy would be obligated to indemnify Omaha for the amount of plaintiff's recovery, by virtue of the indemnification agreement quoted below. To this cross complaint Doughboy answered, admitting the indemnity agreement but denying its application to the matter in suit.
Thereafter, on the pleadings and an affidavit of its attorney, Doughboy moved for summary judgment dismissing Omaha's cross complaint. The trial court denied the motion, and Doughboy appeals.
The material facts disclosed by the pleadings and the affidavits submitted on the motion for summary judgment are undisputed, and may be summarized as follows:
Tracks of the Omaha Railway run north and south immediately east of Doughboy's plant at New Richmond. On a switch track nearest the plant is a track scale. In 1954, pursuant to a written contract between the Omaha and Doughboy, the switch track north of the track scale was partially relocated and connected with 1,010 feet of new switch track extending to the north. The contract provided that the railroad should place on the new track cars of freight consigned to the industry, and empty cars for loading of freight to be shipped by the industry; and it contemplated that the cars so placed by the Railroad Company would be moved to Doughboy's plant by Doughboy itself. The track where cars were thus placed by the Omaha was higher than the track scale beside the Doughboy plant, and the intermediate switch track inclined downhill toward the scale.
The indemnity agreement on which the Omaha's cross complaint against Doughboy is founded appears as one paragraph of the lengthy printed portion of a form contract used by the railroad in such cases, and in substance obligates Doughboy to indemnify Omaha for loss from any act or omission of Doughboy's employees to the person or property of the parties to the contract and their employees, "while on or about said track."
The term "said track" is defined in the contract as meaning the new and relocated switch track lying north of a point designated B on an attached plat. That point is variously estimated as 50 to 65 feet north of the track scale.
At the time of the accident plaintiff Huck was standing on top of the north end of an empty freight car which was on the track scale. Other employees of Doughboy wished to move the car off the scale, but were unable to start it rolling. They then placed in motion a loaded car which was standing on the switch track some distance north of the track scale, and started it down the incline toward the scale in order to "nudge" the empty car off the scale. The incline being relatively steep, the loaded car attained more speed than desired, and hit the empty car so hard that Huck was thrown down on the track, where the loaded car ran over his leg. Claim is made that a Doughboy employee on the loaded car tried to apply the hand brake to slow it down, but by reason of a defect in the brake was unable to do so.
The circuit court construed the indemnity provision of the contract as requiring Doughboy to save Omaha harmless if loss or injury resulted from use of the spur track by Doughboy, and accordingly held the provision applicable to the facts in suit.
Summary judgment was properly denied.
The present phase of this litigation turns on the construction of the following provision of the contract between Doughboy (the "Industry") and the Omaha Railway:
"11. The Industry also agrees to indemnify and hold harmless the Railway Company for loss, damage, or injury from any act or omission of the Industry, its employees, or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about said track; and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto it shall be borne by them equally."
The problem arises from the fact that when plaintiff Huck was hurt he was some 50 to 65 feet south of the end of "said track," but on the other hand the loaded car was standing on "said track" when it was started in motion down the incline, and all but 50 to 65 feet of its journey to the point of impact took place on "said track."
Doughboy, the appellant, contends that the indemnity agreement does not apply to the present case because the plaintiff Huck was not "on or about said track" when he was hurt, but was 65 feet away from it, and that the words "while on or about said track" refer to the injured person and not to the act or omission which caused the injury. On the other hand, the Omaha argues that since the causal act or omission of the Doughboy employee who started the car took place while such employee was "on or about said track" Doughboy must indemnify the Omaha for any liability on its part, because "while on or about said track" refers back to "any act or omission of the Industry, its employees, or agents." It is also suggested on Omaha's behalf, as an alternative, that the so-called last-antecedent rule may be applied to restrict the application of the limitation "while on or about said track" to the immediately preceding expression "the person or property of any other person or corporation" which would leave the injury to Huck, an employee of Doughboy, one of the parties to the contract, subject to the agreement.
We need not resolve the grammatical question as to which of the preceding phrases is modified by the words "while on or about said track," for we are satisfied that Huck was "about said track" when he was hurt even though as much as 65 feet away from it, and since the alleged negligent conduct of the Doughboy employees concededly took place on "said track," the indemnity agreement covers the case on any interpretation, and therefore the motion for summary dismissal of Omaha's cross complaint was properly denied.
Ambiguities in the agreement must be construed in a manner consonant with its dominant purpose and conducive to the accomplishment of such purpose. Here the occurrence of the indemnity agreement in a contract for the construction of new trackage by the railroad for Doughboy, on Doughboy's land, on which trackage cars would be moved about by Doughboy without any control or supervision by the railroad, makes it probable that the indemnity agreement was inserted to protect the railroad from liability resulting from ordinary activities of Doughboy in the use of the new track. This purpose would be defeated in many readily conceivable cases that might arise, if the indemnity were to be limited to accidents occurring while the injured person or property was on the new track or within arm's length or a few feet of it. To effectuate fully the probable purpose of the indemnity paragraph, and avoid crippling it with arbitrary limitations having little relation to such purpose, the words "about said track," if applicable to the injured person, must be construed as extending to the obvious field of peril from readily foreseeable movement of cars on "said track."
Here Huck may have been 65 feet or perhaps even a little farther from the end of "said track," but he was on the immediate continuation of "said track" in the direct line of travel of cars moving downhill on "said track" and in a place which any car started in motion in that direction on "said track" might be expected to reach at substantial velocity if not carefully handled, having in mind the descending incline toward the track scale. Thus Huck was in the clear and easily-to-be-foreseen field of peril, and hence, we think, was "about said track."
We are not saying that everyone within 65 feet or even five feet of the new or relocated switch track is "about said track" within the meaning of the indemnity agreement. We go no further than to hold that Huck was "about said track" in the circumstances presented to us by the record on this appeal, for the reasons stated. On that point we think the meaning of the contract, read in the light of its origin and its probable purpose, is clear enough so that there is no occasion for recourse to the principle that ambiguities in a contract are to be construed against the party who prepared and presented it (here Omaha), nor to that asserted by the Omaha, that ambiguities in indemnity contracts should be construed in favor of the indemnitee.
By the Court. — Order affirmed.
MARTIN, C.J., took no part.