Baltimore and Ohio Railroad Co. v. American Viscose Corp.
| Decision Date | 01 March 1963 |
| Docket Number | Civ. A. No. 1032-W. |
| Citation | 214 F. Supp. 287 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | The BALTIMORE AND OHIO RAILROAD CO., Plaintiff, v. AMERICAN VISCOSE CORPORATION, Defendant. |
Stewart McReynolds, Howard Caplan, Clarksburg, W. Va., for plaintiff.
Charles V. Renner, Benjamin J. Parker, Parkersburg, W. Va., for defendant.
The plaintiff (Railroad) seeks indemnity, or, in the alternative, contribution, from the defendant (Industry) under the provisions of a spur-track agreement, for liability for personal injuries to one, Wade (an employee of the industry), resulting from a collision between a fork-lift truck being operated by Wade and the tender of the locomotive of a train being operated by the Railroad. The collision occurred December 19, 1955, at the crossing of a ten-foot concrete roadway and spur-track "E" on the Industry's premises in Parkersburg, West Virginia.
Wade instituted suit against the Railroad in the Circuit Court of Wood County, West Virginia. The Railroad invited the Industry to defend, which invitation was refused, the Industry denying liability under the spur-track agreement. The suit resulted in a judgment for Wade against the Railroad, upon a jury verdict for $18,000.00 returned November 18, 1957. The Railroad twice sought review of the verdict and judgment in the Supreme Court of Appeals of the State of West Virginia but writ of error was denied.
This case was tried to the court upon a record consisting of stipulations of the parties; copies of portions of the transcript of the trial of the Wade v. Baltimore & Ohio Railroad Co. case accepted in evidence by counsel's stipulations; various exhibits; some oral testimony taken at the hearing and a view of the premises taken by counsel and the court; and the findings of fact are based upon the record so constructed and the view.
Two paragraphs of the spur-track agreement between the parties, dated February 13, 1926, are asserted by the Railroad as bases for its alternative claims of indemnity and contribution. Section 8 of the agreement reads as follows (bracketed matter added):
"The Second Party defendant Industry agrees not to erect or place, or allow to be erected or placed, on its premises any buildings, structures, fixtures or obstructions of any kind in dangerous proximity to said side-tracks, and agrees to use such means and care generally as will tend to avoid accidents of any kind."
The second paragraph of Section 10 of the agreement reads as follows:
"The Second Party defendant Industry also agrees to indemnify and hold harmless the Railroad for loss, damage, or injury from any act or omission of the Second Party, its employes or agents, to the person or property of the parties hereto and their employes, and to the person or property of any other person or corporation, while on or about said tracks; 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."
Counsel for both parties contend that this court should apply the law of Pennsylvania in this case, arguing that the indemnity and contribution provisions of the agreement were probably to be performed at the principal office of the Industry in Philadelphia, and citing the case of Baltimore & Ohio Railroad Co. v. Alpha Portland Cement Co., 218 F.2d 207 (3 Cir., 1955). This court is willing to accept counsel's contentions in this respect not simply because it seems agreeable to both parties, but because no material conflict between the laws of Pennsylvania and West Virginia seems to be present.
Spur-track "E" extends south to north. Its purpose is for the delivery of coal to a power house maintained by the Industry, the south wall of which is approximately 90 feet north of the north edge of the west-east concrete roadway. Toward the north end of the power house the spur-track divides into two branches to its terminus some 180 feet north of the north wall of the power house. At the south end of the power house a permanent concrete structure, called a "cinder tipple", spans track "E", supported by concrete piers. The space between the west rail of the track and the west piers is about 5' 9".
A few months before the accident, the Industry erected a temporary wooden and canvas shack or shed, approximately 40' × 20', in the open space between the concrete roadway and the southwest pier of the cinder tipple. The shed was being used as a workshop by an independent contractor who was doing welding and pipefitting work for the Industry. The easterly edge of the shed paralleled the sidetrack for about 40 feet at a distance of 8' 9" from the west rail. The southerly edge of the shed paralleled the north edge of the concrete roadway for about 20 feet at a distance of 2½' from the north edge of the concrete roadway. The shed was about 10½' high at its southeast corner.
December 19, 1955, was a busy day at the Industry, and the Railroad had called out an extra crew to man a steam locomotive as a switch engine. The switch engine had pushed a train of six loaded coal cars north on track "E", with the objective of "spotting" the loaded cars at points on track "E" convenient to the power house. The crew had completed spotting the front three of the cars on the west fork of the track north of the power house, and was backing the switch engine, pulling the remaining three cars, south for the purpose of clearing the switch so that the remaining three cars could be spotted on the east fork of track "E" north of the power house, and it was during this backing maneuver that the locomotive tender and the fork-lift truck collided.
On this morning it was Wade's task to transport, by means of the electric fork-lift truck, bales of wood pulp from the pulp storage room of the Industry, located to the west of track "E", to the pulp cutting room of the Industry, located at a point on the east side of the "E" track. To accomplish his job, it was necessary for Wade to use the concrete roadway crossing the track. There was a slight incline in the roadway (amounting to about 4 percent) as it approached the track from the west. The bales of wood pulp were piled five or six high in the pulp storage room. It was the practice, and (so Wade understood), the duty, of the fork-lift truck operators to carry a full stack of bales on each trip. Wade had picked up a six-stack load. With the vehicle so loaded it was not possible to drive forward in the normal manner because the height of the stack of bales cut off forward vision. It was, therefore, the practice of Wade and all of the other fork-lift truck operators on the job, to operate the vehicle in reverse. During this operation the driver would throw his left arm over the rear of the truck some 2½ feet behind his seat, and, while working the controls with his right hand, maintain a rear lookout over the left shoulder. Wade was so operating at the time of the accident, and by reason of the angle at which his body and head were turned, he had only peripheral vision to the north. He did not see the approaching locomotive tender until the back wheels of his truck were on the track and the tender was upon him. He did not stop the vehicle before entering on the track because, as he and several others testified, such a stop on the inclined roadway would topple the bales of wood pulp from the lift.
We have then a situation in which neither Wade nor any member of the crew of the locomotive observed the approach of the other moving vehicle in time to take effective counteraction. The only member of the crew of the engine on the west side was the fireman. There were two members of the crew on the ground, directing the switching and spoting operations, but both were on the east side of the train. The fireman attributed his failure to see the approaching lift truck to the obstruction of view caused by the presence of the temporary shed and to excessive smoke and steam in the cab of the locomotive caused, in part, by the obstruction to free ventilation by the east wall of the shed.
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