Penn Cent. Co. v. Youngstown Sheet & Tube Co., 769A132

• Docket Nº: No. 2
• Citation: 146 Ind.App. 216, 253 N.E.2d 704
• Case Date: December 29, 1969
• Court: Court of Appeals of Indiana

Page 704

253 N.E.2d 704 146 Ind.App. 216 PENN CENTRAL COMPANY, Appellant,
v.
YOUNGSTOWN SHEET & TUBE COMPANY, Appellee. No. 769A132. Appellate Court of Indiana, Division No. 2. Dec. 29, 1969.
Rehearing Denied Jan. 16, 1970.

J. A. Bruggeman, Robert Thompson, Ft. Wayne, for appellant; Barrett, Barrett & McNagy, Ft. Wayne, of counsel.

John P. McQuillan, William S. Spangler, Gary, for appellee; Spangler, Jennings, Spangler & Dougherty, Gary, of counsel.

[146 Ind.App. 217] SHARP, Judge.

On April 29, 1958, Pennsylvania Railroad Company entered into an agreement with Appellee, Youngstown Sheet & Tube Company, with reference to the use of Appellant's tracks and property at and near Appellee's plant site in East Chicago, Indiana. The critical provision of this agreement here in issue is paragraph 8 which reads:

'Youngstown agrees to assume all liability for loss and damage to all property and injury to or death of all persons resulting from its use of said tracks and appurtenances herein covered, unless due solely to fault or negligence of Pennsylvania, its employees, agents, or other lessees. Track failures shall not be considered as Pennsylvania's fault or neglect, unless loss and damage is due to failure of Pennsylvania to repair track within thirty (30) days after receipt of written notice from Industry that track is unsafe for the operation thereon of its cars and locomotives.'

Page 705

On July 26, 1968, Plaintiff-Appellant filed its complaint for declaratory judgment with reference to said agreement. Plaintiff's complaint alleges that one Kenneth Earl has filed a complaint for personal injury damages on May 8, 1967. Plaintiff's complaint further alleges:

'Said collision was not due solely to fault or negligence of Pennsylvania, its employees, agents or other lessees and was not due to failure of Pennsylvania to repair track within thirty (30) days after receipt of written notice from Industry that track is unsafe for the operation thereon of its cars and locomotives.

Plaintiff has requested the Defendant to live up to its obligations under said agreement and to accept that defense of said action on its behalf, to pay any judgment which may be rendered against it in said action and to reimburse it for all expenses incurred or to be incurred, in connection with the defense of said action, but the Defendant has refused to so agree.'

The complaint of said Kenneth Earl designates Youngstown Sheet & Tube Company, Indiana Harbor Belt Railroad Company, and Pennsylvania Railroad Company as Defendants, and essentially alleges:

[146 Ind.App. 218] '1. That at all times hereinafter mentioned, the plaintiff, Kenneth Earl, was the operator of a certain 1960 Chevrolet sedan.

2. That at all times hereinafter mentioned, the defendant, Youngstown Sheet & Tube Company, was the owner of a certain deisel engine #900.

3. That at all times hereinafter mentioned, the defendant, Indiana Harbor Belt Railroad Company, was the owner and operator of a certain railroad track hereinafter described more fully.

4. That at all times hereinafter mentioned, the defendant, Pennsylvania Railroad Company, was the owner and operator of a certain railroad track hereinafter described more fully.

5. That at all times hereinafter mentioned, the said deisel engine owned by the defendant, Youngstown Sheet & Tube Company, was operated by the agent and servant of said defendant, Tom Jalovocky, while acting within the scope of his employment with said defendant.

6. That at all times hereinafter mentioned, there runs through the City of East Chicago, Lake County, Indiana, a certain public road more commonly known as Riley Road. That the said Riley Road is a two-lane street proceeding in a general southwesterly-northeasterly direction with one lane for southwestbound traffic and one lane for northeastbound traffic. That the said Riley Road is paved with a hard substance more commonly known as blacktop.

7. That intersecting the said Riley Road is a certain railroad track owned, operated and controlled by the defendants, Indiana Harbor Belt Railroad Company and Pennsylvania Railroad Company. That the said railroad track proceeds in a general southeasterly direction.

8. That on or about August 21, 1965, at approximately 1:20 A.M., the defendant, Youngstown Sheet & Tube Company, by and through its agent Tom Jalovocky, was operating the said deisel engine and train, proceeding in a southeasterly direction on the track owned and operated by the defendants, Indiana Harbor Belt Railroad Company and Pennsylvania Railroad Company. That the defendant stopped its train in the crossing of the said railroad track and Riley Road, thereby blocking said crossing.

9. That at approximately the same time and place, the plaintiff, Kenneth Earl, was driving his said vehicle in a [146 Ind.App. 219]...