Altemus v. Pennsylvania Railroad Company

• Decision Date: 05 November 1962
• Docket Number: Civ. A. No. 2414,2430.
• Citation: 210 F. Supp. 834
• Parties: Thomas R. ALTEMUS and Naomi Altemus, his wife, Plaintiffs, v. The PENNSYLVANIA RAILROAD COMPANY, and Gulf Oil Corporation, corporations of the State of Pennsylvania, Defendants. James K. ORRELL, Jr., Plaintiff, v. The PENNSYLVANIA RAILROAD COMPANY, a Pennsylvania corporation, Defendant.
• Court: U.S. District Court — District of Delaware

210 F. Supp. 834

Thomas R. ALTEMUS and Naomi Altemus, his wife, Plaintiffs, v. The PENNSYLVANIA RAILROAD COMPANY, and Gulf Oil Corporation, corporations of the State of Pennsylvania, Defendants.

James K. ORRELL, Jr., Plaintiff, v. The PENNSYLVANIA RAILROAD COMPANY, a Pennsylvania corporation, Defendant.

Civ. A. Nos. 2414, 2430.

United States District Court D. Delaware.

November 5, 1962.

James P. D'Angelo, Wilmington, Del., and Charles A. Lord, of Richter, Levy, Lord, Toll & Cavanaugh, Philadelphia, Pa., for Thomas R. Altemus and Naomi Altemus.

C. W. Berl, Jr., of Berl, Potter & Anderson, Wilmington, Del., for Pennsylvania R. Co.

William F. Taylor, of Morford, Young & Conaway, Wilmington, Del., for Gulf Oil Corp. and James K. Orrell, Jr.

LAYTON, District Judge.

Thomas Altemus filed this action against Pennsylvania Railroad (hereinafter "Railroad") and Gulf Oil Corporation (hereinafter "Gulf") to recover for personal injuries sustained when he fell from a ladder while working for the Railroad in Wilmington, Delaware. Defendant-Railroad filed a cross-claim against defendant-Gulf on the theory that Gulf is liable to indemnify it for any liability it may owe to the plaintiff. Fed.R.Civ.P. 13(g), 28 U.S.C. Gulf now moves for summary judgment in its favor against Railroad's cross-claim. Fed.R.Civ.P. 56 (b).

The essential facts are these. A Gulf employee came onto Railroad property to deliver oil. As was customary, a Railroad employee (plaintiff in this case) assisted in the delivery by ascending a ladder supplied by Railroad. The Railroad employee fell from the ladder and injured himself. The sale of oil by Gulf to the Railroad was pursuant to a Pennsylvania Railroad purchase order form which contains the indemnity clause on which Railroad bases its cross-claim. The clause in dispute reads as follows:

"ACCIDENTS AND INDEMNITY. If it becomes necessary for the Seller, either as principal or by agent or employe, to enter upon the premises or property of the Buyer, in order to construct, erect, inspect or deliver hereunder, the Seller hereby covenants and agrees to take, use, provide and make all proper, necessary and sufficient precautions, safeguards and protections against the occurrence or happening of any accidents, injuries, damages or hurt to any such person or property during the progress of the work herein covered, and to be responsible for, and to indemnify and save harmless the Buyer from the payment of all sums of money by reason of all, or any such accidents, injuries, damages or hurt that may happen or occur upon or about such work, and all fines, penalties and loss incurred for or by reason of the violation of any State, county, municipal or local ordinance or regulation, or the law of the State, or United States while the said work is in progress; and further agrees to procure and carry the insurance required by any compensation act, plan or legislative enactment."

Both parties agree that the indemnity clause was a part of the purchase and sale. In other words, there...