Batchkowsky v. Penn Central Co., ANHEUSER-BUSC

• Decision Date: 14 November 1975
• Docket Number: INC,D,No. 91,ANHEUSER-BUSC,91
• Citation: 525 F.2d 1121
• Parties: Mike J. BATCHKOWSKY, Plaintiff-Appellee, v. PENN CENTRAL COMPANY a/k/a Penn Central Transportation Company, Defendant and Third-Party Plaintiff-Appellee, v., Third-Party Defendant-Appellant. ocket 75--7204.
• Court: U.S. Court of Appeals — Second Circuit

Page 1121

525 F.2d 1121

Mike J. BATCHKOWSKY, Plaintiff-Appellee, v. PENN CENTRAL COMPANY a/k/a Penn Central Transportation

Company, Defendant and Third-Party Plaintiff-Appellee, v. ANHEUSER-BUSCH, INC., Third-Party Defendant-Appellant.

No. 91, Docket 75--7204.

United States Court of Appeals, Second Circuit.

Argued Sept. 23, 1975.

Decided Nov. 14, 1975.

William K. Tormey, New York City (Bigham, Englar, Jones & Houston, New York City, of counsel), for Anheuser-Busch, Inc.

Albert A. Juron, New York City (Juron & Minzner, New York City, of counsel), for Batchkowsky.

Robert M. Peet, New York City, for Penn Central Co.

Before LUMBARD, MANSFIELD and TIMBERS, Circuit Judges.

MANSFIELD, Circuit Judge:

Plaintiff, Mike Batchkowsky, formerly employed as a brakeman by Penn Central Company ('Penn Central'), brought this action against it under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., for personal injuries sustained as a result of an accident in the course of his employment, which occurred on a railroad siding on premises of third party defendant Anheuser-Busch, Inc. ('Busch'), allegedly because of the railroad's negligence. The action was tried before William C. Conner, Judge, and a jury, which awarded the plaintiff $200,000, less $50,000 for contributory negligence, or a net of $150,000. Penn Central filed a claim over against Busch for indemnification pursuant to an agreement between them, which was tried simultaneously to Judge Conner without a jury and resulted in an award of the full amount in favor of Penn Central against Busch. The latter appeals, claiming that the trial judge erred in holding that the agreement entitled Penn Central to indemnity against Busch and that in any event the award to the plaintiff should have been set aside as grossly excessive. We affirm.

The accident occurred on November 8, 1968, at a railroad sidetrack at the Busch plant in Newark, New Jersey, as a Penn Central freight train was backing into the plant. As the train's brakeman, plaintiff had the duty of guiding the engineer in the process of backing the train into the building. Under conditions of normal clearance plaintiff's practice would be to ride the sideladder of one of the railroad cars, relaying signals between the conductor and the engineer. This practice could not be followed In February 1969 plaintiff commenced this action against Penn Central under FELA, claiming that his injuries were caused by Penn Central negligence in failing in its nondelegable duty to furnish him with a reasonably safe place in which to work. Penn Central, defending principally on the ground that the accident was due to plaintiff's negligence, also filed a third party complaint against Busch for indemnification under the terms of an agreement between Busch and Penn Central for the latter's construction on Busch's property of the sidetrack that later became the scene of the accident. The sidetrack agreement, as originally executed on February 24, 1950, contained mutual indemnification clauses. However, when Penn Central found that Busch, in order to build an additional loading platform, proposed to reduce the lateral clearance from eight feet (measured from the center of the rails to the nearest obstruction) to six feet, one inch, it first obtained from Busch a supplemental agreement, dated November 16, 1950, containing the following indemnification clause:

on the side track leading into the Busch building, however, for the reason that the space between the platform and railroad cars, some four inches, was too close. Plaintiff therefore stationed himself in a recessed area inside the doorway of the Busch building at the start of the loading platform, whence he could see and pass signals between the conductor inside the building and the engineer in his locomotive outside. As the freight cars were being slowly backed into the building plaintiff, facing the conductor, was struck successively by two handles protruding from a refrigerator car door, spun around and thrown to the ground; he suffered a severe sprain of the cervical area of the spine, sprain of the shoulder, laceration of the forehead, a probable fractured rib, and a low back sprain.

'3. The Industry hereby releases and waives all right or alleged right at any time to ask for or demand damages from the Railroad Company, or its employes, that have occurred, or may occur, to the said Industry and the said structure, including loss of service thereof, caused by or growing out of the operation of the engines, equipment and cars of the Railroad Company upon the side-track adjoining said structure by reason of the 6' 1' side clearances as shown upon the print of plan attached hereto; and the Industry further covenants and agrees to indemnify and save harmless the Railroad Company and its employes from and against all loss, cost, damage and expense and claims and demands therefor caused by or attributable to the operation by the Railroad Company of its engines, equipment and cars upon the said side-track under and adjoining said structure, or injury to or damage caused thereto or thereby, and whether to the property of the Railroad Company or to property in its possession, control or custody, to its employes, patrons or licensees, to the employes, patrons or licensees of the Industry, or to persons or property of others who may seek to hold the Railroad Company liable therefor, and whether attributable in whole or in part to the said 6' 1' clearances.'

Following the jury's verdict, Judge Conner, construing the agreement under the law of New Jersey (where the property was located and the accident occurred), held that the agreement obligated Busch to indemnify Penn Central for plaintiff's injuries.

DISCUSSION

We agree with the parties and the district court that the construction of the Penn Central-Busch indemnity agreement, as supplemented by their agreement of November 16, 1970, is governed by New Jersey law. See Haag v. Barnes, 9 N.Y.2d 554, 216 N.Y.S.2d 65, 175 N.E.2d 441 (1961). New Jersey courts, paralleling the course taken by New York law, look to the parties' intent and, where that is debatable or ambiguous view such indemnity clauses 'realistically as efforts by businessmen to allocate as between them the cost or expense of risk of accidents apt to arise out of construction projects on a fairly predictable basis,' Buscaglia v. Owens Corning Fiberglas, 68 N.J.Super. 508, 172 A.2d 703, 707 (App.Div.1961), affd., 36 N.J. 532, 178 A.2d 208 (1962). See Polit v. Curtiss Wright Corp.,64 N.J.Super. 437, 166 A.2d 387 (App.Div.1960); Cozzi v. Owens Corning Fiber Glass Corp., 63 N.J.Super. 117, 164 A.2d 69 (App.Div.1960); Stern v. Larocca, 49 N.J.Super. 496, 140 A.2d 403 (App.Div.1958).

Applying these principles, the supplemental indemnity agreement clearly obligated Busch to indemnify Penn Central for the injuries caused to plaintiff as a result of Penn Central's operation of its equipment on the sidetrack adjoining the loading platform on Busch's premises. Busch argues that the agreement was intended to indemnify the railroad only for accidents that might occur 'under and adjoining' the structure (loading platform) and be attributable to the 6' 1' clearance. We disagree. This stilted interpretation would rewrite the agreement and defeat the parties' intent. Busch agreed plainly and unqualifiedly to indemnify Penn Central from damage 'caused by or attributable to the operation by (Penn Central) of its engines, equipment and cars upon the side-track under and...