Aho v. Blanchette
| Decision Date | 27 July 1984 |
| Citation | 18 Mass.App.Ct. 149,463 N.E.2d 1203 |
| Parties | Thomas L. AHO v. Robert W. BLANCHETTE, trustee, et al.; 1 Paramount Development Associates, Inc., third-party defendant. |
| Court | Appeals Court of Massachusetts |
Andre A. Sansoucy, Boston, for Robert W. Blanchette and others.
James C. Gahan, Jr., Boston (John T. Underhill, Boston, with him), for Paramount Development Associates, Inc.
Before GRANT, BROWN and KASS, JJ.
Thomas Aho, the plaintiff, was hurt when the car he was driving over a railroad crossing in Framingham was struck by a train. That train was operated by the Penn Central Transportation Company (Penn Central). The accident occurred in an easement which provided access across a railroad track to an industrial park. At issue is whether the terms of the easement imposed upon the owner of the industrial park (at the time of the accident the owner was Paramount Development Associates, Inc. [Paramount] ), an obligation to indemnify the railroad for damages Aho recovers from the railroad.
In exchange for the right to cross the railroad tracks, Paramount's predecessor in title, Cerel-Perini Associates, Inc. (Cerel), agreed to absorb all the expenses attendant on the installation of the crossing, to maintain the crossing at Cerel's expense but under the railroad's direction, to erect and maintain signs identifying the crossing as a private way, to reimburse the railroad for automatic signalling and gate devices that might be required, and to indemnify the railroad as follows:
"Cerel shall indemnify the Railroad and save it harmless against any and all claims, demands, suits or expenses to which it may be subjected by reason of any work done or precaution omitted by Cerel with reference to the construction, maintenance or use of said crossing, or by reason of any failure on the part of Cerel to perform any agreement herein contained, or by reason of injury to or death of Cerel 2 or the agents, servants or contractors of Cerel, or any person or persons who may use said crossing, and loss of or damage to property of Cerel or of the agents, servants or contractors of Cerel or of any person or persons using said crossing " (emphasis supplied).
On cross motions for summary judgment by Penn Central (the primary defendant and third-party plaintiff) and Paramount (the third-party defendant) a Superior Court judge ruled that the text from the easement quoted above did not require Paramount to indemnify the railroad in connection with Aho's claim and allowed Paramount's motion. Specifically, the judge wrote that the "words 'any person or persons' ... are to be taken (ejusdem generis) as referring only to persons ... who use the crossing on, or about or in connection with Cerel's 'business' " (emphasis original). A separate judgment was entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), in favor of Paramount, dismissing Penn Central's third-party complaint. We reverse that judgment.
1. Public policy considerations. Paramount urges the invalidity of the indemnity provision on the ground that a railroad, as a common carrier, may not by contract exculpate itself from liability for its negligence. See Palmer v. Boston & Me. R.R., 227 Mass. 493, 495-496, 116 N.E. 899 (1917). However valid that principle may be as concerns the duty common carriers owe to passengers and shippers, i.e., the general public they serve, it does not apply to parties to whom common carriers have no public duty and with whom they enter into contracts on equal terms. Bay State Street Ry. Co. v. North Shore News Co., 224 Mass. 323, 326, 112 N.E. 1007 (1916). New York Central R.R. v. William Culkeen & Sons, 249 Mass. 71, 75-76, 144 N.E. 96 (1924). New York, N.H. & H. R.R. v. Walworth Co., 340 Mass. 1, 3, 162 N.E.2d 789 (1959). See generally, Annot. 14 A.L.R.3d 446 (1967). Here, the railroad's decision to allow access to Cerel's industrial park was a private act which the railroad was not compelled to perform as a common carrier. It could quite properly require the beneficiary of the easement to pay for the economic exposure inherent in grade crossings, including liability for grade crossing accidents. See Cacey v. Virginian Ry., 85 F.2d 976, 978 (4th Cir.1936). Ryan Mercantile Co. v. Great Northern Ry., 294 F.2d 629, 632, 635-636 (9th Cir.1961).
2. Construction of the indemnity clause. Having established that the railroad could lawfully impose far ranging indemnity obligations upon the owner of the...
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