Buckeye Cotton Oil Co. v. Louisville & NR Co.

• Decision Date: 09 February 1928
• Docket Number: No. 4871.,4871.
• Citation: 24 F.2d 347
• Parties: BUCKEYE COTTON OIL CO. v. LOUISVILLE & N. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

24 F.2d 347 (1928)

BUCKEYE COTTON OIL CO. v. LOUISVILLE & N. R. CO.

No. 4871.

Circuit Court of Appeals, Sixth Circuit.

February 9, 1928.

R. E. King, of Memphis, Tenn. (Ewing, King & King, of Memphis, Tenn., and Dinsmore, Shohl & Sawyer, of Cincinnati, Ohio, on the brief), for plaintiff in error.

Henry J. Livingston, of Memphis, Tenn. (John B. Keeble and A. W. Stockell, Jr., both of Nashville, Tenn., on the brief), for defendant in error.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

MOORMAN, Circuit Judge.

The Louisville & Nashville Railroad Company constructed a system of private railroad tracks and switches for the Buckeye Cotton Oil Company at its plant in Memphis, Tenn. The tracks were to be used by the railroad company as loading and unloading tracks for the oil company. Under the construction contract the oil company agreed "to place no overhead structure lower than 20 feet above the tops of the rails of said tracks located on the property of the second party the oil company and to keep the tracks free from obstructions, and agrees to hold the first party harmless from the claims and demands of any and all persons on account of any damages or injuries caused directly or indirectly by the existence, location, or condition of any structure or obstruction of any kind on the premises of the second party or by any obstruction on said tracks."

The oil company erected a scaffold over two of the tracks, and, while the railroad company was switching a cut of cars upon one of them, one of the cars struck a support or upright end of the scaffold and caused it to fall and injure a workman. The workman sued the railroad company and recovered a judgment in damages. This action was brought by the railroad company, under the clause referred to, to recover from the oil company the amount that the railroad company had paid in satisfaction of the judgment. There was a directed verdict for the plaintiff in the lower court. To this defendant assigns error, contending that the negligence of the train crew was the sole proximate cause of the accident, and that the contract sued on did not indemnify the plaintiff against damages resulting from the negligence of its own employees.

The scaffold support was quite close to the rail of the track — exactly how close and what overhang of the rail there was by a normal car were not shown in the evidence. There was some evidence to the effect that a door on one of the cars was loose, and that one of the cars, not the first in the cut, was out of plumb, extending over to one side more than the other; but it did not appear whether the loose door, or the car, or what struck the support. On all these points the evidence was obscure enough to permit differing inferences; otherwise,...