JV McNicholas Transfer Co. v. Pennsylvania R. Co.
| Decision Date | 18 March 1946 |
| Docket Number | No. 10130.,10130. |
| Citation | 154 F.2d 265 |
| Parties | J. V. McNICHOLAS TRANSFER CO. v. PENNSYLVANIA R. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David C. Haynes, of Youngstown, Ohio, for appellant.
Norman A. Emery, of Harrington, Huxley & Smith, all of Youngstown, Ohio, for appellee.
Before HICKS, ALLEN, and MARTIN, Circuit Judges.
The Pennsylvania Railroad Company, appellee, a common carrier of freight and passengers, had a freight station at Youngstown, Ohio. Appellant, J. V. McNicholas Transfer Company of Youngstown, did a general cartage business by means of motor trucks. On January 14, 1943, appellant, herein called the Trucker, and appellee, herein called the Railroad, entered into a contract in writing wherein the Trucker agreed to transport freight in less than carload lots between the station of the Railroad and the places of business of shippers or consignees, at Youngstown. The contract had the following provision, to wit:
"(3) To be responsible for, and to protect, save harmless and indemnify Railroad from and against, all fines, penalties, loss, damage, cost and expense suffered or sustained by Railroad or for which Railroad may be held or become liable by reason of * * * (b) injury (including death) to persons or property, or other causes whatsoever, in the event an attempt should be made to hold Railroad liable therefor, in connection with Trucker's business or operations hereunder; * * *"
On October 27, 1944, George Sharrer brought an action for damages for personal injuries against the Railroad in an Ohio Court of Common Pleas. He alleged in his complaint that he was a motor truck driver for the Trucker and that while engaged in transferring a large casting from the railroad station to his truck, he was injured by the negligence of one of the Railroad's employees, in the loading of castings. The Railroad called upon the Trucker to defend Sharrer's action and upon its refusal to do so, the Railroad brought this action by which it seeks a declaration of rights under the above mentioned contract. The District Court made Findings of Fact and Conclusions of Law. It found as a fact that Sharrer was injured while performing services for the Trucker in the handling and transportation of less than carload freight at Youngstown. This finding was unexcepted to.
The court found as a matter of law that under the contract the Railroad was "protected against any claims and resulting damage which grow out of the handling and...
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