Minneapolis-Moline Co. v. CHICAGO, M., ST. P. & PR CO.

• Decision Date: 07 November 1952
• Docket Number: No. 14565.,14565.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: MINNEAPOLIS-MOLINE CO. v. CHICAGO, M., ST. P. & P. R. CO.

199 F.2d 725 (1952)

MINNEAPOLIS-MOLINE CO. v. CHICAGO, M., ST. P. & P. R. CO.

No. 14565.

United States Court of Appeals Eighth Circuit.

November 7, 1952.

Charles A. Bassford, Minneapolis, Minn. (Bergmann Richards, Minneapolis, Minn., and Richards, Janes, Hoker, Montgomery & Cobb, Minneapolis, Minn., on the brief), for appellant.

A. C. Erdall, Minneapolis, Minn. (S. W. Rider, Jr., J. R. Scoggin, Minneapolis, Minn., M. L. Bluhm and C. L. Taylor, Chicago, Ill., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

As originally instituted this was an action brought by Patrick Bath against Chicago, Milwaukee, St. Paul and Pacific Railroad Company to recover damages on account of personal injuries. Jurisdiction was based on diversity of citizenship and the requisite amount involved. Bath alleged in his complaint that the Railroad Company maintained certain railroad tracks in the vicinity of one of the Minneapolis-Moline Company plants in the city of Minneapolis, Minnesota; that on the 11th day of January, 1950, he was employed by that company and was working as a foundry helper; that the railroad company was operating an engine in a northerly direction with cars attached to the north of the engine and that it negligently, carelessly and unlawfully operated the engine and cars thereto attached in a northerly direction along its line of track adjacent to the plant of the Minneapolis-Moline Company, striking an iron box along the said track and propelling it against Bath, thereby inflicting serious personal injuries upon him.

The Railroad Company answered denying negligence and alleging contributory negligence on behalf of Bath. It then, as a third party plaintiff, filed complaint against the Minneapolis-Moline Company, alleging that Patrick Bath had filed suit against it and that on December 30, 1913, it had entered into a written contract with Minneapolis-Moline Company's predecessor in interest, by reason of which the Minneapolis-Moline Company became obligated to indemnify and save harmless the Railroad Company from all damages, remote as well as proximate, for which the Railroad Company might become, in whole or in part, liable, and that by virtue of said agreement and the covenants therein contained the Minneapolis-Moline Company agreed that if any suit should be brought against the Railroad Company for the recovery of any damages, remote as well as proximate, resulting from the performance or non-performance by said company of the track clearance provision of said contract, the Minneapolis-Moline Company would at its own expense assume and conduct the defense of such a claim and satisfy any judgment that might be rendered therein. The Railroad Company also served notice on the Minneapolis-Moline Company demanding that it defend the Bath case.

At the trial both the Railroad Company and the Minneapolis-Moline Company appeared by counsel and participated in the trial of the action and at the close of all the testimony Minneapolis-Moline Company interposed a motion for a directed verdict, as did also the Railroad Company. Both motions were denied. At the request of the Minneapolis-Moline Company the court submitted the following interrogatory to the jury: "Was plaintiff's injury in any wise the result of the presence of the trash box within six feet laterally at right angles from the nearer rail of track 4?" In connection with the question as to what should be submitted to the jury the record shows the following proceedings:

"The Court: I am not sure that we are entirely clear in our record as to what our understanding is insofar as the third party angle of this case is concerned. I gather from what Mr. Richards said that subject to his right, which he has reserved on his motion for a directed verdict, he recognizes that if the jury answers the question which is found in his request No. 1 in the affirmative, then it would follow there would be liability over on the part of the Minneapolis-Moline.

"Now then, is it the desire of counsel that I merely submit that question to the jury and that however it is answered that I make findings of fact and conclusions of law as to the liability of the third party defendant?

"Mr. Richards (appearing for Minneapolis-Moline): That is my idea, Your Honor."

The jury answered the interrogatory in the affirmative and returned a verdict in favor of plaintiff for $25,500. There was evidence tending to sustain the allegations of plaintiff's complaint. Judgment was entered on the verdict and that judgment has been paid by the Railroad Company.

As has been observed, the Railroad Company bases its claim for indemnity upon a certain written industrial track agreement executed by the predecessor of Minneapolis-Moline Company and confessedly binding upon that company. The contract was offered in evidence. In the sixth paragraph of the contract is the provision relied on by the Railroad Company and so far as here material reads as follows:

"Sixth: Except at the points indicated on said plat, the Steel Company shall not and hereby covenants and agrees that it will not erect, construct, have or suffer any part of any building, structure, appurtenance or appliance, or any other obstacle or projection, at a less distance than six (6) feet laterally at right angles from the nearest rails of such spur or switching tracks; * * and that it shall and will at all times indemnify and save harmless the Railway Company of, from and against any and all damages, remote as well as proximate, in anywise resulting from any non-performance or non-observance of the foregoing covenant concerning lateral distance or perpendicular height, for which the Railway Company shall become, in whole or in part, liable to be charged. Neither the Railway Company\'s knowledge or notice of any such non-performance or non-observance, nor its failure to notify its own employees thereof, nor its continued operation of said spur tracks, shall be in anywise deemed a waiver of the foregoing covenant of indemnity, or to relieve the Steel Company therefrom, or be set up as a defense to any claim of the Railway Company thereunder, and if any suit shall be brought against the Railway Company for the recovery of any such damages, the Steel Company shall and will, upon reasonable notice in writing thereto, wholly at its own sole expense, assume and conduct to final conclusion the defense thereof, and pay and satisfy any judgment which may be rendered therein, together with all costs and incidental expenses."

As the jury found in favor of Bath, the details of the evidence need not be reproduced. Suffice it to say that it was sufficient to sustain Bath's cause of action against the Railroad Company.

In addition to the verdict of the jury and its answer to the interrogatory submitted, the court on the question of the Minneapolis-Moline Company's liability entered findings of fact and conclusions of law reciting that the third party plaintiff and third party defendant stipulated "that the court enter findings of fact, conclusions of law and order." The court found that the Railroad Company and Minneapolis-Moline Company's predecessor had entered into a written track agreement pertaining to the maintenance and use of the tracks here involved; found that the third party defendant was bound by the provisions of that contract; that the trash box referred to in the interrogatory submitted to the jury was a large wooden box with steel frame, weighing approximately 1000 pounds and that at the time in controversy it had been placed by an employee of the Minneapolis-Moline Company within six feet laterally from track No. 4; that it was an "appliance or any other obstacle" within the meaning of paragraph sixth of the contract between the parties; that on the occasion under consideration one of a string of railroad cars being moved along track No. 4 in a northerly direction came in contact with the trash box and moved and propelled it along the track, resulting in injuries to Bath, an employee of the Minneapolis-Moline Company; that the jury had returned a verdict against the Railroad Company for injuries to the plaintiff and that the verdict and judgment constituted "damages, remote as well as proximate, in any wise resulting from any non-performance or non-observance of the foregoing covenant concerning lateral distance or perpendicular height for which the Railway Company shall become, in whole or in part, liable or be charged." The court then concluded that the Minneapolis-Moline Company under its contract of indemnity was liable to the Railroad Company for the amount of this judgment and entered judgment accordingly.

In seeking reversal appellant in effect contends: (1) that the court erred in denying its motion for a directed verdict; (2) that the court erred in denying its motion to set aside the jury's answer to interrogatory submitted and for judgment in its favor; (3) the court erred in making findings of fact to the effect that the trash box referred to had been placed by an employee of the Minneapolis-Moline Company within six feet laterally from track No. 4, and that it was an appliance or obstacle within the meaning of paragraph sixth of said contract; (4) the court erred in finding that the verdict returned constituted damages resulting from non-performance or non-observance of the sixth covenant of said contract; (5) the court erred in refusing to submit to the jury requested interrogatories 2 and 3; (6) the court erred in concluding as a matter of law that the Minneapolis-Moline Company was liable under the track agreement.

In the further discussion of the issues presented in this case we shall refer to Patrick Bath either as Bath or as plaintiff; we shall refer to Chicago, Milwaukee & St. Paul Railroad Company either as the Railroad Company or as appellee, and we shall refer to the Minneapolis-Moline Company either as the Moline Company or as appella...