Chicago Great Western Ry. Co. v. Farmers Produce Co.

• Decision Date: 19 August 1958
• Docket Number: Civ. No. 783.
• Citation: 164 F. Supp. 532
• Parties: CHIGAGO GREAT WESTERN RAILWAY COMPANY, Plaintiff, v. FARMERS PRODUCE COMPANY, Elmer Wilharm and Emaline Wilharm, a co-partnership doing business as Farmers Produce Company, Elmer Wilharm and Emaline Wilharm, Individually, Defendants.
• Court: U.S. District Court — Northern District of Iowa

164 F. Supp. 532

CHIGAGO GREAT WESTERN RAILWAY COMPANY, Plaintiff, v. FARMERS PRODUCE COMPANY, Elmer Wilharm and Emaline Wilharm, a co-partnership doing business as Farmers Produce Company, Elmer Wilharm and Emaline Wilharm, Individually, Defendants.

Civ. No. 783.

United States District Court N. D. Iowa, E. D.

August 19, 1958.

Hubert C. Jones, John N. Hughes and Eugene Davis, of Evans, Duncan, Jones, Hughes & Riley, Des Moines, Iowa, for plaintiff.

Oliver J. Reeve, Waverly, Iowa, for defendants.

GRAVEN, District Judge.

In this action the plaintiff seeks to recover from the defendants under an indemnity provision in a contract. The plaintiff is a railway corporation organized under the laws of the State of Delaware. The defendants Elmer Wilharm and Emaline Wilharm, as co-partners, have since about 1940 been engaged in business in the Town of Tripoli, Bremer County, Iowa, under the trade name of Farmers Produce Company. They are citizens of the State of Iowa. The amount in controversy, exclusive of interest and costs, is in excess of $3,000. The plaintiff will be hereinafter referred to as the Railway Company and the defendants as the Produce Company.

The main line of the Railway Company runs east and west through the Town of Tripoli. In 1942 the Railway Company leased to the Produce Company a tract of land owned by it in that Town. Thereafter the Produce Company carried on business operations in buildings situated on the leasehold. Those buildings are situated on the north side of the Railway Company's tracks. A spur track provided for the use of the Produce Company branches off from the main tracks and leads to and is adjacent to the Produce Company buildings.

Eggs constituted the greater part of the products handled by the Produce Company. Over the years following the making of the lease the Produce Company made increasing use of motor truck transportation in connection with the eggs handled by it. The doors and other facilities for the loading and unloading of the products handled by the Produce Company were located on the south side of its main building and faced the spur track. The Produce Company desired to have the trucks hauling the products handled by it load and unload from the doors and adjoining platform on the south side of that building. In order to do this the trucks would have to cross the main track and the spur track and a private crossing over those two tracks would be needed. On October 1, 1952, the Railway Company and the Produce Company entered into a written agreement. That agreement provides in part as follows:

"Whereas, Licensee is lessee of a parcel of land held of the Railway Company under lease No. 7900 dated October 17, 1942, Tripoli, Iowa, and for the more convenient access thereto Licensee wishes the Railway Company to construct a private crossing over each of its two tracks on its right of way adjoining said leasehold; and

"Whereas, the Railway Company is willing to construct said crossing upon the terms and conditions hereinafter mentioned, which terms and conditions are satisfactory to Licensee.

"Now, Therefore, in consideration of the premises and of the covenants and agreements of the parties hereto, it is covenanted and agreed as follows:

"1. The Railway Company agrees that a private crossing may be established across its two tracks on its right of way at the location shown * * *.

"2. Licensee agrees at his own expense to do the necessary grading for said crossing; to install, if requested at any time so to do by the Railway Company, drainage facilities on both sides of the track or tracks and between tracks at said crossing and thereafter to maintain and keep said drainage free and clear of debris and to maintain and keep said crossing in good and sufficient condition satisfactory to the Railway Company.

"3. The Railway Company agrees that after the necessary grading has been done it will install planking or other suitable material or both from the end of its ties in each track at said crossing and will erect appropriate signs at said crossing as required; and Licensee agrees to pay the Railway Company the actual cost of the labor and materials used in doing such work within twenty (20) days after rendition of a bill therefor.

"4. Licensee agrees that said crossing shall be used exclusively by him, his employes, licensees and invitees as a private crossing and that said crossing shall under no circumstances be used as a public crossing.

"5. Licensee agrees that the Railway Company shall not be required to give a warning of any kind or character of the approach of locomotives, cars or trains or other equipment to said crossing or to reduce the speed thereof because of said crossing; and Licensee agrees that the Railway Company may operate its railroad in all respects as if no crossing existed at said place.

"6. Licensee agrees for and on behalf of himself and all persons who may use said crossing under the license herein granted to Licensee that the Railway Company, its successors and assigns, shall not be liable for injury to or death of any person whomsoever who shall enter upon or use said crossing, or for loss of or damage to property in the possession, custody or control of any such person while on said crossing. Licensee further agrees to protect, indemnify and save harmless the Railway Company, its successors and assigns, from and against any and all liability, loss, cost, damage, expense and claims of every kind and character due to injury to or death of any person whomsoever or loss of or damage to any property whatsoever, arising directly or indirectly out of or incident to the existence, use, maintenance or condition of said crossing, and regardless of negligence."

In November 1952 private crossings were constructed across the main line and the spur track. The private crossing across the spur track leading to the building, referred to by the parties as a walkthon, was constructed by employees of the Produce Company. They used railway ties furnished by the Railway Company in its construction. Trucks hauling eggs for the Produce Company used the crossing to back up to a door in the building known as No. 1 door. While the greater part of the eggs handled by the Produce Company were transported by truck, yet some were shipped by express and some as railway freight. Crates of eggs shipped by express would sometimes be taken from the No. 1 door and carried across the tracks to the depot a short distance away. When eggs were shipped as railway freight they were generally shipped in less than carload lots and would be loaded into what is referred to as the merchandise car of the way freight. In the case of such shipments the trainmen would spot the merchandise car on the main track opposite the No. 1 door and carry the crates of eggs from the No. 1 door and place them in the merchandise car. In doing so they would make use of the private crossing or walkthon across the spur track.

On June 17, 1953, Guy P. Smith, a brakeman in the employ of the Railway Company, was a member of the crew of a way freight operating in and out of Tripoli. It was part of his duties to assist in the loading and unloading of freight. On that day after the way freight arrived at Tripoli he received instructions from his foreman to load crates of eggs being shipped by the Produce Company into the merchandise car. That car was next spotted on the main track opposite from and approximately fifteen feet away from the No. 1 door. The crates of eggs to be loaded were on a platform in the vicinity of that door. Smith took a crate of eggs from the platform and started to carry it across the private crossing or walkthon. He claimed that while so doing he fell and received serious injuries. On June 10, 1954, Smith brought an action against the Railway Company in the United States District Court for the District of Minnesota under the provisions of the Federal Employers' Liability Act to recover for the injuries claimed to have been received by him as a result of his fall. The Produce Company was not made a party to that action. On August 12, 1954, the Railway Company notified the Produce Company of the action brought by Smith and tendered that Company the defense of the action. On October 2, 1954, the Produce Company denied liability in the matter and refused the tender of the defense of the action. The Railway Company then defended the action.

The allegations of negligence made by Smith in his complaint in his action were:

"(A) That the Defendant negligently failed to provide and maintain for Plaintiff a reasonably safe place to work.

"(B) That the Defendant negligently failed to provide and maintain for plaintiff a reasonably safe, sufficient and proper walkway.

"(C) That the Defendant negligently failed to make a timely and adequate inspection of its said walkway and its appurtenances.

"(D) That the Defendant negligently failed to give Plaintiff timely and adequate warning of the insufficient, defective, dangerous, and hazardous condition of its said walkway and its appurtenances.

"(E) That the Defendant negligently failed to make necessary repairs to said walkway after it knew, or in the exercise of reasonable diligence should have known, of its insufficient, defective, dangerous, and hazardous condition.

"(F) That the Defendant negligently allowed its said walkway to become and remain defective and in a bad state of repair when it knew, or in the exercise of reasonable diligence should have known, that Plaintiff would be required to be on and about, and use said walkway, and would thereby be subjected to the dangers and perils then and there existing by reason of said defective walkway."

At the trial Smith testified in substance that after he took up the crate of eggs he took a couple of steps forward on the private crossing and then one of the ties rolled and crumbled under him; that it was an old chewed up tie; that some of the ties were rotten and there were gaps of three or four...