Norfolk & Western R. Co. v. Werner Industries, Inc.

• Decision Date: 26 November 1974
• Docket Number: No. 6,6
• Citation: 209 S.E.2d 734,286 N.C. 89
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY v. WERNER INDUSTRIES, INCORPORATED.
• Court: North Carolina Supreme Court

Page 734

209 S.E.2d 734

286 N.C. 89

NORFOLK AND WESTERN RAILWAY COMPANY v. WERNER INDUSTRIES, INCORPORATED.

No. 6.

Supreme Court of North Carolina.

Nov. 26, 1974.

Craige & Brawley by C. Thomas Ross, Winston-Salem, for plaintiff appellant.

Womble, Carlyle, Sandridge & Rice by William F. Womble, Jr., and Allan R. Gitter, Winston-Salem, for defendant appellee.

HUSKINS, Justice:

The sole question presented by this appeal is whether the Court of Appeals erred in affirming the trial court's order granting summary judgment in favor of defendant.

Principles applicable to summary judgment under Rule 56 of the Rules of Civil Procedure are discussed in Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971), and have been applied in various cases by this Court, including Harrison Associates v. State Ports Authority, 280 N.C. 251, 185 S.E.2d 793 (1972); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972); Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972); Schoolfield v. Collins, 281 N.C. 604, 189 S.E.2d 208 (1972); Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972); McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972).

Rendition of summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' G.S. § 1A--1, Rule 56(c). The record in this appeal consists of pleadings and exhibits, answers to interrogatories, affidavits, and counteraffidavits.

In granting summary judgment for Werner the trial court found that there were no genuine issues of material fact. Before the propriety of that finding can be considered, we must construe the relevant portion of the indemnity provision upon which plaintiff bases its claim. It reads as follows:

'7. Contractor (Werner) agrees to indemnify and save harmless Norfolk from and on account of injury to any person or persons, including death, as well as damage to or loss of property, or claims in connection therewith, caused by or resulting from any acts or omissions, negligent or otherwise, of Contractor or any of Contractor's Trucker's agents, servants or employees in the performance of the services herein undertaken. . . .'

The language is unambiguous and should be given its ordinary meaning. Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 127 S.E.2d 539 (1962). Under the terms of this indemnity provision, Werner agreed to indemnify Norfolk for any liability which Norfolk incurred for property damage or personal injury caused by or resulting from any acts or omissions of Werner or Werner's employees, whether the acts or omissions were negligent or not. Such an indemnity provision is not against public policy when the contract is private and not connected with the public service of a public service corporation. Gibbs v. Light Co., 265 N.C. 459, 144 S.E.2d 393 (1965).

In order for Norfolk to recover under the indemnity agreement at trial it must prove that the injury of Jerry Boyles was caused by or resulted from an act or omission of Werner. Boyles was an employee of Werner and acting within the scope of his employment at the time of his injury. Thus, in the context of Werner's agreement to indemnify Norfolk, any act or omission of Boyles, negligent or otherwise, which was a proximate cause of his injury was the act or omission of Werner.

The first determination to be made in considering the propriety of summary judgment is whether Werner, as the party moving for summary judgment, has met the burden placed upon it under Rule 56(c). The movant's burden was stated in Page v. Sloan, supra, as follows:

'Our Rule 56 and its federal counterpart are practically the same. Authoritative decisions both state and federal, interpreting and applying Rule 56, hold that the party moving for summary judgment has the burden of 'clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.' 6 Moore's Federal Practice (2d ed. 1971) § 56.15(8), at 2439; Singleton v. Stewart, supra. Rendition of summary judgment is, by the rule itself, conditioned upon a showing by the movant (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. G.S. 1A--1, Rule 56(b); Kessing v. Mortgage Corp., supra.'

The movant must meet this burden even when he does not have the burden of proof at trial. First Fed. Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972).

The phrase 'no genuine issue as to any material fact' is the heart of the summary judgment procedure and the test applied in reviewing the propriety of a trial court's ruling on a summary judgment motion. 10 Wright & Miller, Federal Practice and Procedure: Civil §§ 2716 and 2725 (1973). In McNair v. Boyette, supra, this Court articulated the test in these words:

'The determination of what constitutes a 'genuine issue as to any material fact' is often difficult. It has been said that an issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. A question of fact which is immaterial does not preclude summary judgment. It has been said that a genuine issue is one which can be maintained by substantial evidence. Where the pleadings or proof of either party disclose that no cause of action or defense exists, a summary judgment may be granted. . . .' (citations omitted)

Application of the foregoing rules to the evidentiary material demonstrates that this is not an appropriate case for summary judgment.

In support of its motion for summary judgment, Werner offered the affidavit of Jerry Boyles reading as follows:

'The undersigned, Jerry Styers Boyles, being duly sworn, deposes and says:

1. That on February 15, 1970, he was an employee of Werner Industries, Inc., employed on the 'third shift' (11:30 p.m. to 7:30 a.m.) at an automobile unloading and storage area of Norfolk and Western Railway Company (hereinafter referred to as 'Norfolk'), at Walkertown, North Carolina.

2. That at the end of eleven sets of tracks Norfolk had three large unloading ramps mounted on rails and movable, by use of an electric control device, from one track to another. And, that each of the three ramps weighed several tons and was mounted on steel wheels, with the lower portion, or frame, being approximately six to eight inches above the ground.

3. That on the date of my injury the said unloading facility had been open for approximately four days, from February 10, 1970. During that time I had operated unloading ramps at the Walkertown facility, including the moving of them from track to track, without difficulty. Every ramp I operated stopped as soon as the control switch was released, and would not coast or roll. It was my experience that movement of each ramp was totally dependent upon power from the electric motor on each.

4. That the control switches were mounted so that the operator had to stand in front of the unloading machines and to move them toward himself. It would have been hazardous to walk backwards down the track in front of one of the machines. The standard procedure was for the operator to walk in front of the machine, with his back to it, holding the control switch behind himself and releasing the control switch when the desired position was reached.

5. That on February 15, 1970, at approximately 12:30 p.m., I operated one of the mechanical unloading ramps, moving it from one track to another. That mechanical unloading ramp appeared older than the other two. When the ramp reached the position I wanted it in, I released the switch and continued walking away from it. On this occasion the switch malfunctioned causing the ramp to continue moving, catching the back of my right heel under the frame, and it continued to roll forward, breaking my right foot under it before it stopped.

6. But for the malfunction of the control switch, the accident would not have occurred. I had no warning whatsoever from Norfolk of the possible malfunction of their mechanical unloading ramp, or that such malfunction was a hazard to guard against. Norfolk provided...