New York, N.H. & H.R. Co. v. Walworth Co.
| Decision Date | 07 December 1959 |
| Citation | 340 Mass. 1,162 N.E.2d 789 |
| Parties | NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY v. WALWORTH COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Noel W. Deering, Boston, for plaintiff.
Philander S. Ratzkoff, Boston, for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and WHITTEMORE, JJ.
This action of contract upon the indemnity provisions of an agreement relating to a private railroad track for freight transportation has been reported without decision by a judge of the Superior Court. G.L.(Ter.Ed.) c. 231, § 111.
The facts are agreed. The contract, dated August 16, 1915, between the plaintiff and Walworth Manufacturing Company, has become an obligation of the defendant. On April 9, 1945, a taxicab of one Hoban was in collision with a locomotive upon the private track. He brought an action of tort which resulted in a verdict, and later a judgment, in his favor against the trustees of the plaintiff. Hoban v. Trustees of New York, N. H. & H. R. R., 326 Mass. 566, 95 N.E.2d 651. The verdict was not based on gross negligence of the plaintiff or its trustees. The defendant refused to defend the action or to pay the judgment. Reorganization proceedings of the plaintiff terminated before execution issued, and the plaintiff was obliged to pay, and did pay, $14,865.65 in satisfaction of the judgment.
In the preamble of the contract the defendant's predecessor (Walworth) is referred to as 'Proprietor.' The recitals are that Walworth 'and certain other individuals, firms and corporations located in the South Boston District * * * are desirous of building an industrial track for the private use in the transportation of freight' from the main line of the railroad; that 'the Proprietor has obtained the necessary statutory authority from all public boards and tribunals for the construction and operation of a railroad for private use in the transportation of freight across or upon C Street, West First Street and East First Street * * * to connect the location and tracks of the Railroad Company with private tracks upon the property or properties of parties adjoining said streets'; and that 'it is deemed for the best interests of all parties that said railroad for private use shall, when completed, be operated by the Railway Company.'
'Contracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.' Century Indemnity Co. v. Bloom, 325 Mass. 52, 56, 88 N.E.2d 906, 908, and cases cited. '[W]e must construe the contract with reference to the situation of the parties when they made it and to the objects sought to be accomplished.' Bryne v. City of Gloucester, 297 Mass. 156, 158, 8 N.E.2d 170, 171. There is no general principle that contracts of indemnity are not favored in law, nor any such implication in Laskowski v. Manning, 325 Mass. 393, 398-399, 91 N.E.2d 231.
The contract, read as a whole, expresses a desire on the part of the proprietor and its associates for the installation of a track and the operation of a freight railroad on public ways in Boston to connect with tracks on their respective properties. The installation and operation of a railroad on the public streets are patently a more dangerous undertaking than are the same activities on private property or on a railroad right of way. As the project was not within the field of the plaintiff's public duty (New York Cent. R. Co. v. William Culkeen & Sons Co., 249 Mass. 71, 75-76, 144 N.E. 96), the plaintiff was able to install and operate the railroad on terms which in 1915 the proprietor, no doubt, readily signed. Now many years later, after this accident, the defendant has been able to discover and suggest reasons why the indemnity should not apply.
One objection is that paragraph Ninth (c) covers only the maintenance and operation of tracks and has nothing to do with the operation of rolling stock on the tracks. This paragraph reads, 'Ninth: The Proprietor agrees to indemnify the Railroad Company for and hold it harmless from any claim or any expense arising from: * * * (c) Any other loss, damage or injury to person or property on said private railroad or extension thereof, or the premises adjacent thereto, by reason of said tracks or the extension thereof, or the construction, maintenance and operation thereof, except such as arise solely from the gross negligence of the Railroad Company or its agents and servants.'
The language of the contract was not chosen with the greatest care. Several phrases, italicized for emphasis in the following quotations, are used, we think, with intent to refer interchangeably to the same thing. The preamble, as we have seen, mentions 'building an industrial track for the private use,' 'construction and operation of a railroad for private use,' and 'railroad for private use 1 * * * operated by the Railway Company.' In paragraph First we read: 'the Railroad Company shall construct and when completed shall operate said industrial track * * * and shall in the construction and operation of said railroad be subject and entitled * * *.' In paragraph Third the proprietor appointed the railroad company 'its sole agent to construct, complete and operate said private railroad and in such construction and operation to enter upon, use and operate the same with cars and engines for the transportation of freight, it being the intention of this agreement to secure to the Railroad Company the control, subject to the terms of this indenture, of the maintenance and operation of said private railroad and of the right to lay tracks * * *.' In paragraph Sixth 'The Proprietor agrees to maintain and keep said private railroad in proper condition for the safe and efficient handling of cars thereon,' 'to pay all taxes and assessments on said private railroad and other property and rights in, on, or connected with said private railroad,' and to pay a great variety of other...
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