Northern P. Ry. Co. v. Thornton Bros. Co.
| Citation | 288 N.W. 226,206 Minn. 193 |
| Decision Date | 03 November 1939 |
| Docket Number | 32081. |
| Parties | NORTHERN PAC. RY. CO. v. THORNTON BROS. CO. |
| Court | Supreme Court of Minnesota (US) |
Appeal from District Court, Ramsey County; Kenneth G. Brill, Judge.
Action on a bond of indemnity by the Northern Pacific Railway Company against Thornton Brothers Company. From an order denying its alternative motion for amended findings, or new trial, the plaintiff appeals.
Order reversed with directions to amend decision below in accordance with opinion and to enter judgment for plaintiff.
Damage negligently done by railroad to a pile driver of a subcontractor working on railroad's right of way was within the terms of a bond whereby general contractor agreed to indemnify railroad against any liability it might incur for damage to property of third persons arising out of the work performed on the right of way.
Syllabus by the Court .
1. Absent attempted escape from absolute duty to public or third person, a party may, without violation of public policy contract for indemnity against damage resulting from his own negligence.
2. Such a contract, being within the rights of the parties, should be construed fairly to accomplish its purpose, rather than being subjected to an arbitrary or strick interpretation.
3. Damage caused by negligence of indemnitee to a pile driver of a sub-contractor working on its right of way held within terms of bond indemnifying against damage to property ‘ arising in any manner out of or in any manner connected with the said work.’
L. B. Da Ponte, Conrad Olson, and D. R. Frost, all of St. Paul, for appellant.
Harry Weiss and Samuel Lipschultz, both of St. Paul, for respondent.
Action upon a bond of indemnity, trial to the court resulting in decision for defendant. Plaintiff appeals from the order denying its alternative motion for amended findings or new trial.
In March, 1935, the Minneapolis-St. Paul Sanitary District, a municipal corporation, charged with the duty of installing and operating a treatment plant for Twin City sewage procured from plaintiff an easement through its right of way and under certain of its tracks in St. Paul. The contract between plaintiff and the District imposed upon the latter the duty of exacting from any contractor doing work upon plaintiff's right of way a bond such as the one upon which plaintiff bases this suit.
Thereupon defendant secured from the District the general contract to build the sewer, including that portion on and under plaintiff's right of way. As required by its easement contract with plaintiff, the District exacted from defendant a bond reciting its general contract and that: ‘ * * * in carrying on such work the principal and its agents, servants, employes and equipment will be on, over and about the right of way and tracks of the’ plaintiff. There followed the condition of the bond in this language: ‘ Now, therefore, if the above bounded principal shall well and truly indemnify said Railway Company against all loss of or damage to property of the Railway Company, and against any and all claims, loss, cost, damage or expense for injuries to or death of said Railway Company's employes or third persons, and for loss of or damage to the property of third persons arising in any manner out of or in any manner connected with the said work performed by the principal, then this obligation shall be null and void, otherwise to remain in full force and effect.’
In performing its contract to run the sewer under plaintiff's right of way, defendant sublet to J. E. Donlin Company an item of driving piles. The facts, as found and agreed below, are that while ‘ the employes and representatives of said Donlin Company were engaged in the work of driving piles and of construction along that part of the line of said sewer that lay beneath the surface of plaintiff's tracks, and on October 1, 1935, in the afternoon of said day, a string of freight cars then being switched by a crew of plaintiff got away from the control of the crew, collided with the pile driver then being used and caused certain damage to the pile driver and equipment of the said Donlin Company.’
Donlin Company sued plaintiff for the loss resulting from its negligence and recovered through the medium of a settlement, as to the wisdom and liquidating effect of which no point is made. The only question is whether the admittedly good claim of the Donlin Company, arising from the negligence of plaintiff, is within defendant's bond. We hold that it is.
1 and 2. To that conclusion no obstacle is interposed by the supposed rule of ‘ strict construction’ (see United States v. Wallace, 9 Cir., 18 F.2d 20) against the indemnitee of a contract wherein he has sought to relieve himself from the consequences of his own negligence. On this point the case is ruled by Quirk Milling Co. v. Minneapolis & St. Louis R. Co., 98 Minn. 22, 107 N.W. 742; Commercial Union Assurance Co. Ltd. v. Foley Brothers, 141 Minn. 258, 169 N.W. 793; and Weirick v. Hamm Realty Co., 179 Minn. 25, 228 N.W. 175. In the Quirk Milling Co. case the defendant railroad had voluntarily granted an easement for the erection of an elevator. Part of the consideration moving to it was undertaking to hold the railroad harmless on account of loss or damage by fire escaping from any locomotive or resulting in ‘ any manner’ from the construction or operation of the tracks of the railroad company.
That promise was in language just as general and no more special than the one now determinative. It was held to include a fire arising from the defendant's negligence. Therein was found no contravention of public policy and so no room for arbitrary construction. There, as here, the railroad company had voluntarily and without condemnation granted an easement. There, as here, the easement was created by contract, one term of which was indemnity for the railroad against liability for fire escaping from its engines. There, as here, the railroad ‘ was under no legal obligation’ to grant the easement, although the latter could have been procured by condemnation.‘ Having the right to refuse to make the contract, it might stipulate for exemption from damages caused by its...
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