John P. Gorman Coal Co. v. Louisville & N.R. Co.

• Decision Date: 05 March 1926
• Parties: JOHN P. GORMAN COAL CO. v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

281 S.W. 487

213 Ky. 551

JOHN P. GORMAN COAL CO. v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

March 5, 1926

Rehearing Denied April 16, 1926.

Appeal from Circuit Court, Fayette County.

Action by the Louisville & Nashville Railroad Company against the John P. Gorman Coal Company. Judgment for plaintiff, and the defendant appeals. Affirmed.

C. F Kelly, of Lexington, for appellant.

Hunt Northcutt & Bush, of Lexington, for appellee.

DIETZMAN J.

The demurrer of the appellant, who was the defendant below, to the petition as amended of the appellee, plaintiff below having been overruled, the appellant declined to plead further. A stipulation was then entered into, whereby the appellant waived the right to have the damages with respect to the matters set forth in the petition fixed or assessed by a jury or the court, and whereby it agreed that the amounts alleged in the petition represented the correct amount of damages sustained by the appellee and which it should recover from the appellant if appellee was entitled to recover at all. Thereupon the court entered judgment for the appellee in accordance with the prayer of its petition, and from that judgment this appeal is prosecuted.

From the petition it appears that on the 28th day of July, 1916, the Fourseam Block Collieries Company entered into a contract with the appellee, whereby the latter agreed to furnish the necessary rails, spikes, and switches for the construction of a mine track or switch to run from the appellee's main line a little over a mile to the collieries company's mines. The collieries company agreed to do the necessary grading, to furnish all other materials and labor necessary to complete the work, and to pay rent for the use of the rails furnished by the appellee. The collieries company also agreed to maintain and keep the tracks in good order, to pay for the repairs and renewal of the same, and, on the termination of the contract, to pay the appellee the cost of removing them. It was further stipulated in this contract that the collieries company was "to keep the tracks free from obstruction," and to hold the appellee "harmless from the claims and demands from any and all persons on account of any damages or injuries caused directly or indirectly by the existence, location, or condition of any structures or obstructions of any kind on the premises of the second party (the collieries company), or by any obstructions on said track." By a subsequent arrangement between all the parties the appellant succeeded to all the rights, duties, liabilities, and obligations of the collieries company under this contract.

On September 23, 1922, while the contract above outlined was in full force and effect, the appellee was engaged in moving a cut of empty coal cars over the switch in question to the tipple of the appellant. A push car of the appellant had been placed so close to this spur track that the coal cars collided with it, and as a result they were derailed and injured, one of them being demolished, and appellee's conductor and brakeman were injured. The conductor and brakeman each made a claim against the appellee on account of the injuries they had thus received. The appellee duly notified the appellant of these claims, and called upon it to adjust them or defend them. The appellant refused to do so, but agreed that the appellee might make the best defense or settlement it could, and appellant would not question such action on its part, but would, if sued by appellee for any settlement made or judgment paid on account of such claims, defend solely on the ground whether or not there was any liability upon it under the contract. The appellee thereupon made a settlement with the conductor and brakeman, and by this suit sought to recover the sums paid out on these settlements and the damages it had sustained to its equipment.

The appellant's defense is bottomed on the theory, first, that, as the appellee did not allege that the push car had been left near the spur track on account of some negligence on its part or that of some of its agents, the petition was defective; and, secondly, that the contract in question, in so far as it puts any liability on appellant in a case of this character, is against public policy, because its purpose is to relieve the carrier of its common-law liability for negligence.

The position of appellant is not sound. First, the obligation undertaken by appellant in this contract, so far as here pertinent, is not predicated on any negligence on its part. The appellee's cause of action arises ex contractu and not ex delicto, and the respective rights and duties of the parties as well as their liabilities are governed solely by the terms of the contract they made. The obligation to keep the tracks free from obstruction, and to hold the appellee harmless from any claims on account of any failure on appellant's part to so keep the tracks, is an absolute one. Appellant might have made it a condition of liability that it should be guilty of some negligence, but this it did not do. It was free to make any contract it chose so long as it was not against public policy, and, having chosen to undertake an absolute liability rather than a qualified one, it cannot now be heard to complain of the choice it made. The petition therefore was not defective because it failed to allege that the push car had been placed too near the spur tracks by reason of some negligence of appellant.

Neither can the second contention of appellant stand. The appellee by this contract, was not...