Missouri Pac. R. Co. v. Rental Storage & Transit Co.

• Decision Date: 04 June 1975
• Docket Number: Nos. 9296,9297,s. 9296
• Citation: 524 S.W.2d 898
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Plaintiff-Respondent and Appellant, v. RENTAL STORAGE & TRANSIT COMPANY, a corporation, and General Warehouse Corporation, Defendants-Appellants and Respondents, and Frank Lyon Company, Missouri, a corporation, Defendant.
• Court: Missouri Court of Appeals

Page 898

524 S.W.2d 898

MISSOURI PACIFIC RAILROAD COMPANY, a corporation Plaintiff-Respondent and Appellant, v. RENTAL STORAGE & TRANSIT COMPANY, a corporation, and General Warehouse Corporation, Defendants-Appellants and Respondents and Frank Lyon Company, Missouri, a corporation, Defendant.

Nos. 9296, 9297.

Missouri Court of Appeals, Springfield District.

June 4, 1975.

Thomas G. Strong, William J. Hart, Farrington, Curtis & Strong, Springfield, for Missouri Pacific Railroad Co.

Meredith B. Turner, Turner, Reid & Duncan, Springfield, for Rental Storage & Transit Co. and General Warehouse Corp.

HOGAN, Judge.

In this bench-tried action upon the indemnity provisions of a spur track agreement, plaintiff (Railroad) has had judgment against defendants Rental Storage and Transit Company and General Warehouse Corporation (collectively Industry) in the amount of $63,500 plus $1,000 as attorneys' fees with interest on both sums from June 25, 1965. ¹ Industry appeals from the judgment allowing reimbursement; the Railroad also appeals, claiming it is entitled to additional attorneys' fees. The appeals have been consolidated by our order.

On March 29, 1965, one of the Railroad's switch crews was spotting a loaded car at a warehouse owned by defendant Rental Storage Company. The Railroad's employee Clyde Johnson was caught between the boxcar and a loading dock and sustained fatal injuries. Very shortly thereafter, Johnson's widow asserted a wrongful death claim against the Railroad under the Federal Employers' Liability Act, 45 U.S.C.A §§ 51--60. The Railroad notified Industry of the accident and of the assertion of Mrs. Johnson's claim, advising Industry that '(t)he factual circumstances . . . are such that the railroad may be liable'. Industry was called upon to defend or settle the claim and was advised that compromise settlement negotiations had been begun. The Railroad offered to discuss the negotiations with Industry, or to carry them to a conclusion in Industry's name or for its account. Industry declined to assume defense of the claim. Mrs. Johnson agreed to accept $63,500 in full settlement of her claim, and the Railroad again notified Industry, calling upon Industry to defend or settle the claim. Industry again refused, the Railroad paid $63,500 in settlement of the claim, and this action followed.

Two or three preliminary observations seem appropriate. First, the record is rather involved, consisting as it does of some 632 pages of formal transcript into which 96 separately numbered exhibits, ranging from a roll of motion pictures to an attorney's 'doodle pad', have been incorporated. The appeals have been meticulously presented; the parties' combined briefs run to some 165 pages. For the most part, the parties' briefs seem to be correlated with the trial court's findings of fact and conclusions of law, which upon transcription run to 18 typewritten pages, and counsel have selectively adopted and rejected these findings as they serve their particular points of view. We acknowledge the utility of the trial court's extensive analysis of the case and counsel's careful preparation, but we conceive it to be our duty to review the case on both the law and the evidence, reaching our own conclusions. Paro v. Pennsylvania R.R. Co., 348 S.W.2d 613, 616(1) (Mo.App.1961). And, to the extent possible, we have confined ourselves to a recitation of those facts and a consideration of those issues essential to an orderly disposition of the appeals. Bloomfield Reorganized School Dist. No. R--14 v. Stites, 336 S.W.2d 95, 97 (Mo.1960); Southwest Engineer. Co. v. Reorganized School Dist. R--9, 434 S.W.2d 743, 746 (Mo.App.1968).

On January 2, 1962, Industry and the Railroad executed a spur track agreement, entitled 'Industrial Track Agreement', in which it was agreed Industry would be served by a 251-foot end section of one of the Railroad's existing tracks in the city of Springfield, Missouri. The agreement contains two indemnity clauses but the one with which we are primarily concerned reads:

'3. Shipper (Industry) shall not erect or maintain, or allow to be erected or maintained, any building, structure or fixture, or place or store, or allow to be placed or stored material, equipment or obstruction of any kind, over or adjacent to Switch (the track and adjacent roadway) at distances less than those prescribed by competent public authority; and in no event shall any such building, structure, fixture, material, equipment or obstruction be erected, maintained, placed or stored at a height less than twenty-five feet above nearer rail, or at a distance less than eight and one-half feet from the center line, of Switch; provided: . . . (ii) the horizontal minimum clearance with respect to curve tracks shall be increased one-half inch for each degree of curvature, and (iii) loading platform of car floor height may be constructed with a horizontal clearance which is not prohibited under clearance regulations established by competent public authority and which shall have the approval of (Railroad's) Chief Engineer. (Industry) assumes full responsibility for, and shall defend, indemnify and save harmless the (Railroad) from and against, and and all liability, suits, claim, damages, costs (including attorneys' fees), losses, outlays, and expenses in any manner caused by, arising out of or connected with the failure or refusal of (Industry) to comply with, observe or perform any of the provisions of this covenant, notwithstanding any possible negligence (whether sole, concurrent or otherwise) on the part of the (Railroad), its agents or employes (sic).' (Our emphasis)

On March 29, 1965, one of the Railroad's switch crews was called upon to spot a loaded car at Industry's warehouse adjacent to the spur track. There were four men in the switch crew: Burton Painter, who supervised spotting operations, Charles Hogan, an engineer, and John Gray and Clyde Johnson, who assisted the foreman in spotting cars, cutting off cars and setting handbrakes. Gray was called the 'head man'; he worked closest to the engineer. Johnson, the 'field man', worked at the end of the tow. As the term is used here, 'spotting' a car means aligning the door of the car with the door of Industry's warehouse. The warehouse door opens onto a loading dock which protrudes from the warehouse toward the spur so a boxcar can be loaded or unloaded directly onto the dock. The spotter working as a 'field man' would stand on the side of the dock nearest the switch engine and as close to the building as possible, so, as the foreman put it, 'he would be in the position where he could spot the car better and could line the door (of the car) up with the dock or the platform and . . . be in a position where the engineer could see him better.'

Industry's warehouse is located on the north side of Walnut Street in the city of Springfield, Missouri. Walnut runs east and west; the Railroad's spur at the particular point in question ² crosses Walnut at right angles from the south and extends some 190 feet north along the west side of the warehouse. About 28 feet north of the southwest corner of the warehouse, on the west side, there is a 10-foot door which opens onto a wooden loading dock. This loading dock, referred to as the south dock, is the structure against which Johnson was crushed.

Two important issues were tendered in connection with the horizontal clearance between the warehouse and the spur. The Railroad claimed, and its proof tended to show, that the horizontal clearance between the warehouse and the spur was insufficient to comply with the requirements fixed by the Public Service Commission. The trial court found that the west edge of the dock was at least 5 feet 9 inches from the center of the spur, the minimum clearance permitted, and the record justifies that conclusion. Further in connection with the clearance between the building and the spur, the Railroad's evidence indicated that at the time the accident occurred, large wooden frames, referred to as 'bulkheads' or 'dividers', were leaning against the west wall of the warehouse immediately south of the dock. The Railroad's evidence further indicated, and the trial court found, that this heavy wooden dunnage was stacked or piled against the building so it extended outward from the west wall of the warehouse to a point 6 feet 1 inch east of the center line of the spur. The trial court found that these 'bulkheads' or 'dividers' had been piled against the warehouse by Industry's lessee; that finding is not challenged here.

About 4:00 p.m. the switch crew arrived in the vicinity of the warehouse. Their instruction was to spot a loaded car at the south dock. There was an empty car at the dock. The empty car was removed from the south dock by coupling it to the switch engine, then 'backing' or moving south across Walnut over a switch some distance to the south. There the car to be spotted was picked up from another sidetrack by coupling it to the empty car. The crew also coupled an empty tank car to the 'rear' or south of the switch engine, and started to proceed north across Walnut. At this point the train consisted of the loaded car (to be spotted) in 'front' or at the north end, then the empty car, then the switch engine with the empty tank car in the 'rear', i.e., to the south. The train moved north across Walnut at a speed estimated to be between two and three miles per hour.

As the train moved north across Walnut, Johnson was flagging traffic on Walnut north of the train. Painter, the foreman, climbed to the top of the loaded car to set the handbrake. Gray, the other 'helper' was south of the engine on the east side of the train, walking north. After Painter set the handbrake, he 'got off' the loaded car 'at the north edge of Walnut Street.' Johnson was then 'about halfway between the north side of Walnut Street and (the south) dock.' Johnson was walking north. The last time Painter saw Johnson before...