Boston & Maine Railroad v. Hall, 5657-5660.

• Decision Date: 21 November 1960
• Docket Number: No. 5657-5660.,5657-5660.
• Court: U.S. Court of Appeals — First Circuit
• Parties: BOSTON & MAINE RAILROAD, Defendant, Third-Party Plaintiff, Appellant, v. Arlene M. HALL, Executrix, Plaintiff, Appellee (two cases). STAUFFER CHEMICAL COMPANY, Third-Party Defendant, Appellant, v. BOSTON & MAINE RAILROAD et al., Appellees (two cases).

284 F.2d 474 (1960)

BOSTON & MAINE RAILROAD, Defendant, Third-Party Plaintiff, Appellant, v. Arlene M. HALL, Executrix, Plaintiff, Appellee (two cases).

STAUFFER CHEMICAL COMPANY, Third-Party Defendant, Appellant, v. BOSTON & MAINE RAILROAD et al., Appellees (two cases).

Nos. 5657-5660.

United States Court of Appeals First Circuit.

Heard October 5, 1960.

Decided November 21, 1960.

Lawrence R. Cohen, with whom James R. DeGiacomo, Boston, Mass., was on brief, for Boston & M. R. R.

Samuel P. Sears, Boston, Mass., for Stauffer Chemical Co.

Charles E. Holly, Boston, Mass., for Arlene M. Hall, Ex'x.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

On the morning of October 28, 1958, the plaintiff's testate, Hall, was a fireman on duty in the cab of a train operated by the defendant, Boston & Maine Railroad. He was killed when the train collided with a truck at a private grade crossing on the main line in Woburn, Massachusetts. This crossing was for the sole use of the third-party defendant, Stauffer Chemical Company, whose factory was on the opposite side of the track from a highway. By written agreement between Stauffer and the railroad the crossing gates were to be kept lowered at all times except when temporarily raised by Stauffer's employees to permit passage of vehicles. On the day in question Stauffer's gatekeeper, Forbes, possibly misled by a late blowing of Stauffer's 8 o'clock whistle, opened the gates and admitted a truck just before the train was due.¹ The air was foggy, impairing visibility. There was no automatic signal notifying Forbes that the train was coming, and he had no warning other than the timetable which, because of his mistake as to the time, was ineffective. The train arrived before the truck had completed its crossing. The then unavoidable collision killed Hall.

A finding by the jury that Forbes was negligent was unquestionably warranted on this evidence. Hall's executrix, however, did not sue Stauffer, but sued the railroad under the Federal Employers' Liability Act, 45 U.S.C.A. § 51. Her first contention is that Forbes, although not an employee of the railroad, was its agent under the doctrine of Sinkler v. Missouri Pacific R. R., 1958, 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799, so that his negligence was to be attributed to the railroad. The court charged the jury that it might so find. We do not believe it necessary to decide this matter in view of the plaintiff's second contention. This was that the railroad was itself negligent in not providing for an automatic signal which would warn Stauffer's gatekeeper of the arrival of trains. It was stipulated that such a signal could have been provided, and, of course, it is common knowledge that such signals exist at grade crossings maintained for the use of the public. The purpose in each instance must be precisely the same — to warn the gatekeeper of the approach of trains. While there may be a difference with respect to gates which are kept raised except when a train is to pass, and the reverse, nevertheless, the difference is one of degree. If it is desirable to advise the railroad's own employee at a public crossing, it seems difficult to say that in no case can there be need of advising a gatekeeper at a private crossing. It may be, as the railroad suggests, that some private crossings have no gates at all. However, each crossing must be regarded on its own special facts. This one was traversed by 30 to 100 trucks each day. The particular truck in question was 45 feet long, and grossed 30 tons. Some ten of this type crossed daily. Thirty trains pass daily. Although the track was straight for some distance, in the event of fog, as in this case, a train could not be seen until it was near the crossing. Hence there would be no visual warning.² We cannot rule as a matter of law that reliance upon an unprompted gate tender was sufficient and that the jury's affirmative answer to a special question, whether "one of the causes of Hall's death was the negligent failure of the railroad to have electrical devices * * * at the Stauffer crossing," was unsupportable. Cf. Tiller v. Atlantic Coast Line R. R., 1943, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610. The railroad's motion for a directed verdict was properly denied.

We turn to the cross action of the railroad against Stauffer on its written contract of indemnity. This agreement stated in part, "The crossing shall not be used * * * when any train is known to be due * * *. Stauffer will indemnify * * * the railroad * * * against any and all loss or * * * damage * * * and against any and all claims or suits for * * * death, by Stauffer or by any person authorized hereunder to pass and repass thereby or in any way attributable to the failure of Stauffer to perform this agreement or to the negligence of any crossing-tender in charge of said crossing and in its employ * * * when such claims or suits arise out of or are in any way referable to the existence or use of said crossing." Referring to this portion of the contract the court said, "This is a specific agreement between Stauffer and the railroad that no matter how many blameworthy causes of Hall's death may exist, if one of the causes is the negligence of Stauffer's crossing-tender then Stauffer will indemnify the railroad. There could hardly be drawn an indemnification agreement more clearly applicable to the case at bar." As a result the court ordered judgment against Stauffer in favor of the railroad for the amount of the judgment entered in favor of the original plaintiff on the verdict. Stauffer appeals.

Stauffer contends at the outset that the indemnity agreement should be governed by the law of Massachusetts, and not by federal law. We will so assume as, if there is any difference, the Massachusetts law appears the more...