Huck v. Chicago, St. P., M. & O. Ry. Co.
| Decision Date | 07 October 1958 |
| Citation | 92 N.W.2d 349,5 Wis.2d 124 |
| Parties | Uno Carl HUCK, Plaintiff-Respondent, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RY. CO., Defendant-Respondent, Doughboy Industries, Inc., Interpleaded Defendant-Appellant, Chicago, Rock Island & Pacific Ry. Co., et al., Interpleaded Defendants. |
| Court | Wisconsin Supreme Court |
Stafford, Pfiffner & Stafford, Chippewa Falls, for appellant.
Wilcox & Sullivan, Eau Claire, Warren Newcome, St. Paul, Minn., of counsel, for Chicago, St. Paul, Minneapolis & Omaha Ry. Co.
Summary judgment was properly denied.
The present phase of this litigation turns on the construction of the following provision of the contract between Doughboy (the Industry) and the Omaha Railroad:
The problem arises from the fact that when plaintiff Huck was hurt he was some 50 to 65 feet south of the end of 'said track,' but on the other hand the loaded car was standing on 'said track' when it was started in motion down the incline, and all but 50 to 65 feet of its journey to the point of impact took place on 'said track.'
Doughboy, the appellant, contends that the indemnity agreement does not apply to the present case because the plaintiff Huck was not 'on or about said track' when he was hurt, but was 65 feet away from it, and that the words 'while on or about said track' refer to the injured person and not to the act or omission which caused the injury. On the other hand the Omaha argues that since the causal act or omission of the Doughboy employee who started the car took place while such employee was 'on or about said track' Doughboy must indemnify the Omaha for any liability on its part, because 'while on or about said track' refers back to 'any act or omission of the Industry, its employes or agents.' It is also suggested on Omaha's behalf, as an alternative, that the so-called last-antecedent rule may be applied to restrict the application of the limitation 'while on or about said track' to the immediately preceding expression 'the person or property of any other person or corporation' which would leave the injury to Huck, an employee of Doughboy,...
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