Anderson v. Anderson, 44515
| Decision Date | 10 May 1974 |
| Docket Number | No. 44515,44515 |
| Citation | 217 N.W.2d 854,300 Minn. 112 |
| Parties | Paul D. ANDERSON, a Minor, by His Father and Natural Guardian, LaVern C. Anderson, et al., Plaintiffs, v. Janice K. ANDERSON, Defendant. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Defendant and Third-Party Plaintiff, Appellant, v. COUNTY OF DAKOTA, Third-Party Defendant, County of Washington, Third-Party Defendant, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
A county may enter into a contract with a railroad wherein the latter agrees to keep its bridge open for the benefit of the traveling public in exchange for the county's agreement to save said railroad harmless. An action for indemnity based upon this express contract does not sound in negligence and therefore does not require compliance with Minn.St. 466.05, providing that notice of tort claims must be given to a municipality within 30 days after the injury.
The lower court's order granting a dismissal with prejudice because the railroad failed to serve such notice must be reversed.
Stringer, Donnelly, Allen & Sharood and A. James Dickinson, St. Paul, for appellant.
Richards, Montgomery, Cobb & Bassford, and Jonathan P. Scoll, and Jack A. Rosberg, Jr., Minneapolis, for respondent.
Heard before PETERSON, TODD and SCOTT, JJ., and considered and decided by the court.
This is a third-party action to enforce a contractual right of indemnity against Washington and Dakota Counties. Washington County moved for a dismissal of the third-party plaintiff's complaint. The motion was granted and the lower court ordered the action dismissed with prejudice. The third-party plaintiff, Chicago, Rock Island and Pacific Railroad Company, appeals from that order. We reverse.
An automobile accident occurred on July 9, 1971, on a drawbridge which is part of County Highway No. 24. A vehicle driven by Janice K. Anderson collided with a traffic control gate which was in the process of closing to prevent traffic from crossing and to allow river traffic to travel under the bridge. Her passenger, Paul D. Anderson, was injured and commenced an action against the railroad and Janice Anderson. The bridge is owned by the railroad and spans the Mississippi River between Washington and Dakota Counties in Inver Grove Heights. The bridge has two decks; the upper level carries rail traffic, and the lower level is open exclusively to highway traffic. The railroad leases the lower deck to Dakota and Washington Counties pursuant to a contract dated December 11, 1967.
Section 5 of the contract provides as follows:
'Counties shall indemnify and save harmless Railroad, its agents and employees, from and against any and all liability arising, in any manner, out of or in connection with the maintenance of said highway deck and appurtenances thereof by the Counties, any failure or alleged failure on the part of the Counties to properly maintain said highway deck or its appurtenances or the use of said highway deck by the traveling public.'
Plaintiff Paul Anderson's complaint alleged that defendant railroad was negligent in its operation of the traffic control gate and that defendant Janice Anderson negligently failed to maintain proper control of her automobile. The action was commenced in February 1973, and the third-party action against the counties in March 1973. It was conceded that none of the parties gave notice of the claim to the counties prior to the commencement of the third-party action.
Inasmuch as plaintiff Paul Anderson was using the highway as a member of the 'traveling public,' the railroad claims a right to indemnity pursuant to Section 5 of the contract although it has not satisfied the notice requirement of Minn.St. 466.05. The lower court held compliance with § 466.05 was necessary, relying upon American Automobile Ins. Co. v. City of Minneapolis, 259 Minn. 294, 107 N.W.2d 320 (1961), to support its determination that the railroad's failure to serve notice upon the counties destroys any contractual liability from which indemnity might have ensued.
The pertinent statutes are as follows:
Minn.St. 466.05 provides...
To continue reading
Request your trial
-
Bartens v. Mayor and City Council of Baltimore
...200 Kan. 287, 436 P.2d 980, 982 (1968). See also, Goff v. City of Fort Lauderdale, 65 So.2d 1 (Fla.1953); Anderson v. Anderson, 300 Minn. 112, 217 N.W.2d 854, 856 (1974); City of Lubbock v. Johnston, 299 S.W.2d 764, 769 (Tex.Civ.App.1957); Puget Sound Alumni of Kappa Sigma v. City of Seattl......
-
Nadeau v. Ramsey County, 45916
...subd. 1, when read in conjunction with § 466.02, required notice only for injuries or losses caused by torts. Anderson v. Anderson, 300 Minn. 112, 217 N.W.2d 854 (1974). Indeed, under § 466.05, subd. 2, as presently worded, written notice would not have been required at all in this case, be......