Colonial Stores, Inc. v. Central of Georgia Railway Co.

Decision Date03 August 1960
Docket NumberNo. 18109.,18109.
CitationColonial Stores, Inc. v. Central of Georgia Railway Co., 279 F.2d 777 (5th Cir. 1960)
PartiesCOLONIAL STORES, INCORPORATED, Appellant-Appellee, v. CENTRAL OF GEORGIA RAILWAY COMPANY, Appellee-Appellant. CENTRAL OF GEORGIA RAILWAY COMPANY, Appellant, Appellee, v. COLONIAL STORES INCORPORATED, Appellee, Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

George B. Haley, Jr., Ernest P. Rogers, Atlanta, Ga., for appellant, Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Ga., of counsel.

C. B. Rogers, James K. Rankin, Atlanta, Ga., for appellee, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., of counsel.

Before HUTCHESON, TUTTLE and JONES, Circuit Judges.

JONES, Circuit Judge.

A warehouse of Colonial Stores, Inc. was furnished with railway service by a spur track of the Central of Georgia Railway Company.These principals in this litigation will be referred to in this opinion as Colonial and Central.Colonial's warehouse platform was adjacent to Central's spur track.This track was built and maintained by Central pursuant to an agreement with Colonial which, among other things, provided:

"The Tenant Colonial also agrees to indemnify and hold harmless the Railway Central from loss, damage or injury from any act or omission of the Tenant, its employees or agents, to the person or property of the parties hereto and their employees 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 the parties hereto, it shall be borne equally by them."

During a switching movement, one of the train crew, Ezra A. Jones, a switchman, was required to alight from the side of the car, which was being moved, according to his testimony, at three or four miles per hour, on to the Colonial platform.As he stepped to the platform he slipped on cabbage leaves, vegetable leaves, water and ice."One foot shot one way and one another way," as he phrased it, and he"just sprattled out and hit down."

Jones brought an action against Central in the Superior Court of Fulton County, Georgia, seeking damages for his injuries and asserting negligence of Central in not providing him with a safe place to work in the discharge of his duties in alighting from the train upon the Colonial platform.Colonial rejected Central's demand that it assume the defense of the suit of Jones.A judgment against Central was entered for Jones.Central called upon Colonial to pay the judgment plus attorneys' fees, with costs and expenses of the litigation.Colonial declined to pay.Central then brought suit in the United States District Court, with jurisdiction based upon diversity of citizenship, claiming that it was entitled under the indemnity provisions to recover the amount of its loss or, in the alternative, one-half of the amount of its loss.Central's theory was that Colonial was negligent in allowing the debris to accumulate on the platform and that this negligence was the sole cause of the injury.In the alternative, Central contended that if the injury of Jones was caused by the joint or concurring negligence of Central or Colonial, Colonial would be liable to Central, under the agreement, for one-half of its loss.

The cause was tried to the court without a jury.Jones testified for Central.The warehouse superintendent and foreman testified for Colonial.The petition of Jones in the state court action and a transcript of the testimony there adduced were offered in evidence by Central and received without objection.The Court found,1 among other things, that at the place where Jones stepped to the platform there were present vegetable leaves and crushed ice or water; that Central's conductor, before the switching movement commenced, walked the length of the platform but saw nothing that would, in his judgment, make the platform unsafe for use by Central's switching crew; and that the conductor gave no warning to Jones or the others of the train crew.The court concluded, as matters of law, that Colonial was negligent in causing or permitting vegetable leaves and crushed ice or water to accumulate on the platform; that Central was negligent in requiring Jones to step from the moving train to the unsafe platform and in failing to warn him after the conductor had inspected the platform and knew, or should have known, of its condition; that the negligence of Colonial and Central jointly and concurrently caused the injury to Jones resulting in the liability to him of Central; that the negligence of each was active and primary; and that under the indemnity agreement the loss sustained by Central should be borne equally by Central and Colonial.Colonial has appealed, urging that it had no liability; Central cross-appealed asserting that the entire loss should be cast upon Colonial.

For the most part, the issues in this case are fact issues which the district court has decided.Its findings are not to be set aside unless clearly erroneous.Rule 52(a) Fed.Rules Civ. Proc. 28 U.S.C.A.There may be more than one proximate cause of an injury.Where the concurrent independent negligent acts of two tort-feasors unite...

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10 cases
  • Kemira, Inc. v. AC Compressor Corp.
    • United States
    • U.S. District Court — Southern District of Georgia
    • January 18, 1991
    ...plain negligence was demonstrated. Eastern Air Lines, 167 Ga.App. at 17-18, 306 S.E.2d 27. See also Colonial Stores, Inc. v. Central of Georgia Railway Co., 279 F.2d 777 (5th Cir.1960) (question of indemnification for indemnitee's sole negligence not addressed because indemnitor was found b......
  • Southern Pac. Co. v. Gila River Ranch, Inc.
    • United States
    • Arizona Court of Appeals
    • May 28, 1969
    ...Co., 328 F.2d 73 (5th Cir.1964); Anthony v. Louisiana & Arkansas Ry. Co., 316 F.2d 858 (8th Cir.1963); Colonial Stores, Inc. v. Central of Ga. Ry. Co., 279 F.2d 777 (5th Cir.1960); Ryan Mercantile Co. v. Great No. Ry. Co., 294 F.2d 629 (9th Cir.1961); Chicago & N.W. Ry. Co. v. Rissler, 184 ......
  • Mitchell v. Gay, 41074
    • United States
    • Georgia Court of Appeals
    • June 18, 1965
    ...to that passive negligence for which defendant would have been liable for injuries to an invitee. See Colonial Stores, Inc. v. Central of Georgia Ry. Co. (5th Cir.), 279 F.2d 777, 780. The omission of the instruction of the substance of Code § 105-401 in the charge was prejudicial error. On......
  • Parsons v. Sorg Paper Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 27, 1991
    ...671 F.2d at 285 ("Other courts read the term negligence to mean common law negligence.") (citing Colonial Stores, Inc. v. Central of Ga. Ry. Co., 279 F.2d 777, 779-80 (5th Cir.1960)); Baltimore and Ohio R.R. Co. v. Alpha Portland Cement Co., 218 F.2d 207, 212 (3d Cir.1955) (A different cons......
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