Chicago, RI & PR Co. v. Dobry Flour Mills

• Decision Date: 12 May 1954
• Docket Number: No. 4706.,4706.
• Citation: 211 F.2d 785
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: CHICAGO, R. I. & P. R. CO. v. DOBRY FLOUR MILLS, Inc.

211 F.2d 785 (1954)

CHICAGO, R. I. & P. R. CO. v. DOBRY FLOUR MILLS, Inc.

No. 4706.

United States Court of Appeals Tenth Circuit.

April 6, 1954.

Rehearing Denied May 12, 1954.

Nell Rhodes Fisher, Oklahoma City, Okl. (J. I. Gibson, Oklahoma City, Okl., was with her on the brief), for appellant.

Duke Duvall, Oklahoma City, Okl. (Paul Dudley and Dudley, Duvall & Dudley, Oklahoma City, of counsel), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

The plaintiff railroad company constructed a spur track from its main line to serve a flour mill belonging to the defendant located in Canadian County, Oklahoma.¹ A spur track agreement was entered into which contained the following provisions:

"The Industry also agrees to indemnify and hold harmless the Trustees 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."²

An employee of the Railroad was injured on Dobry's property while performing his duties. The Railroad settled with the injured employee and brought this action to recover the amount paid in the settlement. The case was submitted to a jury on special issues which resulted in a judgment for Dobry.

On May 26, 1950, the Railroad, at the request of Dobry, was performing certain freight train switching movements on the spur track. Engaged in such movements was Paul Fruit, a switchman in the employ of the Railroad. As part of its milling facilities, Dobry had constructed and maintained between two side tracks a wooden loading dock about two hundred feet long, six feet wide and four and one-half feet high. In the switching operations, Fruit was required to be upon the platform which was covered with an accumulation of flour dust from the Dobry mill. Rain was falling, and it caused the dusty platform to become very slippery. Fruit slipped and fell and suffered personal injuries.

Fruit advised the Railroad that he was totally and permanently disabled as a result of his fall. He claimed that his disability was a direct and proximate result of the negligent maintenance of the platform and that under the provisions of the Federal Employers' Liability Act the Railroad was liable to him for its failure to furnish him with a safe place to work. 45 U.S.C.A. § 51 et seq. After an investigation, the Railroad concluded that it was liable to Fruit and discussed the matter with representatives of Dobry. Numerous conferences were held concerning liability in the matter. Dobry denied any responsibility under the indemnity contract. On July 5, 1951, the Railroad wrote a letter to Dobry and notified it of Fruit's claims and demanded that it assume the defense of the same and hold the Railroad harmless. Dobry was also advised that if it refused the demand, the Railroad would make settlement with Fruit and seek recovery from Dobry of the amount paid. Dobry disclaimed then, as it does now, that it was liable under the indemnity contract.

The Railroad settled the claim and brought this action in which it alleged substantially the above facts. Dobry answered and admitted the existence of the indemnity contract and the demands of the Railroad, but denied any liability on its part. The answer alleged that the settlement was unreasonable and that the Railroad was not legally liable to pay Fruit any amount. As further defenses, Dobry alleged that its liability was not controlled by the Federal Employers' Liability Act; that Fruit was guilty of contributory negligence, and that the condition and construction of the premises were known to Fruit so that he assumed the risk thereof when he entered upon them.

The court instructed the jury that the Railroad's liability to Fruit was controlled by the Federal Employers' Liability Act; that the Railroad was bound to furnish Fruit with a safe place to work; and that contributory negligence on the part of Fruit or the doctrine of assumption of risk was not a defense. As to the liability of Dobry, the jury was instructed that Fruit "as an invitee, assumed all normal or ordinary risk attendant upon the use of the premises and that Dobry was under no duty to alter known or obvious dangers. However, if you should find that a dangerous condition existed which was neither known or obvious, and that Dobry either knew of this danger, or by the exercise of reasonable diligence, could have known, then Dobry would be guilty of negligence." The jury was also instructed that if Fruit was found to be guilty of contributory negligence, the answer to the interrogatory as to whether Fruit was guilty of negligence and whether his negligence was the proximate cause of his injury should be yes.³

With respect to the interrogatory relating to the good faith of the Railroad in making the settlement, the jury was instructed that if it found that the Railroad "acted reasonably and in good faith in determining that it was legally liable unto Paul Fruit for damages or that there was danger or probability that a suit would result in a recovery for damages, then Rock Island was entitled to settle with Paul Fruit for such sum as it reasonably and prudently and in good faith believed compensated Paul Fruit for such injuries as he had sustained, or such sum as Rock Island believed necessary to avoid litigation * * * so long as the amount was reasonable, * * *." Acting upon these instructions, the jury found that the Railroad was not negligent; that Dobry was not negligent; that Fruit was not guilty of contributory negligence; that the Railroad had acted reasonably and in good faith in determining the amount of fair and just compensation to Fruit; and, finally, that Fruit had suffered damages of $20,445.00, the amount of the...