Union Pacific R. Co. v. Kaiser Agr. Chemical Co.

Citation425 N.W.2d 872,229 Neb. 160
Decision Date15 July 1988
Docket NumberNo. 86-526,86-526
PartiesUNION PACIFIC RAILROAD COMPANY, a Corporation, Appellee, v. KAISER AGRICULTURAL CHEMICAL COMPANY, a Subsidiary of Kaiser Aluminum & Agricultural Chemical Corporation, a Corporation, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Summary Judgment. A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives 3. Workers' Compensation: Liability: Contracts. When an employer, liable to an employee under the Nebraska Workers' Compensation Act, agrees to indemnify a third party for a loss sustained as the result of the third party's payment to the indemnitor's employee, the employer's exclusion from liability accorded by the Workers' Compensation Act does not preclude the third party's action to enforce the indemnity agreement with the indemnitor-employer.

such party the benefit of all reasonable inferences deducible from the evidence.

4. Contracts: Words and Phrases. An indemnity agreement is a contract to be construed according to the principles generally applied in construction or interpretation of other contracts.

5. Pleadings: Appeal and Error. The Supreme Court disposes of an appeal on the basis of the theory presented by the pleadings on which the case was tried.

6. Negligence. The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the defendant's conduct is not a cause of the event if the event would have occurred without it.

7. Negligence: Proximate Cause: Words and Phrases. The proximate cause of an injury is that cause which, in natural and continuous sequence, unaccompanied by any efficient, intervening cause, produces the injury, and without which the result would not have occurred.

8. Negligence: Proximate Cause: Words and Phrases. In negligence law, an efficient intervening cause is new and independent conduct of a third person, which itself is a proximate cause of the injury in question and breaks the causal connection between original conduct and the injury.

9. Negligence. The causal connection is broken if between the defendant's negligent act and the plaintiff's injury there has intervened the negligence of a third person who had full control of the situation and whose negligence was such as the defendant was not bound to anticipate and could not be said to have contemplated, which later negligence resulted directly in the injury to the plaintiff.

10. Negligence: Trial. Determination of causation is, ordinarily, a matter for the trier of fact.

11. Negligence. To determine whether conduct constitutes negligence, the invariable standard is reasonable care, although reasonable care is directly proportional to the danger inherent in conduct and may vary depending on the circumstances.

C.L. Robinson of Fitzgerald & Brown, Omaha, for appellant.

Jay M. Nadlman, for appellee.

HASTINGS, C.J., BOSLAUGH, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge. Retired.

SHANAHAN, Justice.

UNION PACIFIC-KAISER AGREEMENT

From 1976 and pursuant to its agreement with Kaiser Agricultural Chemical Company, the Union Pacific Railroad Company supplied tracks and service to Kaiser's chemical facility. The trackage agreement, drafted by Union Pacific, included the following provision:

Section 9. LIABILITY.

....

The Industry [Kaiser] agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Industry, its employes or agents, to the person or property of the parties hereto and their employes and agents, and to the person or property of any other person or corporation, while on or about the Track; and if any claim or liability other than from fire

shall arise from the joint or concurring negligence of the parties hereto, it shall be borne equally by the parties at fault.

NATURE OF APPEAL

Based on its agreement with Kaiser, Union Pacific sued Kaiser on account of the railroad's settlement of claims which arose out of a train-vehicle collision in which one of Kaiser's customers sustained property damage and a Kaiser employee sustained bodily injury.

In its amended petition, Union Pacific claimed that injuries to Kaiser's employee and property damage to Kaiser's customer were "caused by negligent acts or omissions" of Kaiser, specifically alleged Kaiser's "negligent" conduct, such as failure to provide precautionary measures to avoid or prevent the accident, and asserted that Kaiser "knew, or should have known, in the exercise of ordinary care" that its conduct created an unreasonable risk of harm to Kaiser's employee who was hurt in the accident. Union Pacific's petition concluded with a prayer for indemnification of $95,000.

Kaiser answered, denied it was negligent, and alleged that any damages from the accident were caused by Union Pacific's active negligence in contrast with Kaiser's negligence, which was passive only.

Each party moved for summary judgment to dispose of the liability question under their agreement. Finding that Union Pacific was "entitled to contribution" pursuant to the agreement with Kaiser, the district court granted summary judgment to the railroad, overruled Kaiser's motion for summary judgment, and, in a subsequent bench trial, determined that the settlements achieved by Union Pacific were reasonable and in good faith. Because Union Pacific had "admitted some negligence" regarding the accident, the district court concluded that Union Pacific was "entitled to indemnification of 50 percent of the settlements rather than for full indemnity" and awarded a $47,500 judgment to the railroad.

Kaiser contends that Neb.Rev.Stat. § 48-148 (Reissue 1984) of the Nebraska Workers' Compensation Act immunizes Kaiser from liability outside the compensation act concerning an injury to a Kaiser employee, and, therefore, Kaiser is not liable to Union Pacific under the indemnity agreement for rail service. Kaiser also contends that there is no negligence on its part which renders Kaiser liable for indemnification under the agreement with Union Pacific. Finally, Kaiser claims that the settlements by Union Pacific were not reasonable and in good faith. Union Pacific contends the issue of negligence is irrelevant to recovery under the indemnity agreement with Kaiser.

A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law. Wibbels v. Unick, 229 Neb. 184, 426 N.W.2d 244 (1988); Lowry v. State Farm Mut. Auto. Ins. Co., 228 Neb. 171, 421 N.W.2d 775 (1988). In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. See Ford v. American Medical International, 228 Neb. 226, 422 N.W.2d 67 (1988).

THE ACCIDENT

Trucks at Kaiser were loaded through doorways or docks on the east side of its building. Two sets of parallel Union Pacific tracks ran through the loading area for a distance of 225 feet along Kaiser's building. The west, or closest, rail of the track used to spot railroad cars at Kaiser's loading docks was 5 feet from Kaiser's building. For a number of years, in loading at Kaiser, drivers had been parking their trucks across the Union Pacific tracks.

On the morning of March 26, 1981, Walter Cunningham, a driver for Corbet, Inc. About that time, which was around 12:30 p.m., the Kaiser loading crew returned from lunch. A Union Pacific crewman told David Moyer, leadman for the Kaiser crew, that the boxcar had collided or bumped into the semi. After the Union Pacific crewman, Cunningham, and Moyer had determined there was no damage to the semi, the switch engine and its crew left with the boxcar which had collided with the trailer. The semi remained in its loading position and location at Kaiser's dock. Moyer knew that the switch engine would return later that day, because he had told the engine crew where to spot cars after the empty was removed. The switch engine's engineer did not realize that the boxcar had struck the trailer. None of the train crew informed the engineer about the collision. Kaiser had no safety rules governing trucks parked on Union Pacific's tracks or any warning procedure for "trains in the vicinity," but did have a "general practice" of maintaining a 30-foot interval between a spotted car and a truck at the loading dock.

                drove his semi, which included a 42-foot flatbed trailer, to the loading area at Kaiser, where a Kaiser employee told Cunningham to park the semi across the two sets of tracks adjacent to Kaiser's building.  Cunningham backed the semi up to one of the doorway-loading docks near the northeast corner of Kaiser's building and parked his rig with approximately 20 feet of the trailer's length across the railroad tracks.  To load bags of fertilizer on the trailer, Cunningham and Kaiser's loading crew, including Gerald Blomenkamp, used a conveyor belt to move bags from the building's interior to the semi for stacking on the trailer.  Around 12:15 p.m., while Kaiser's employees were on their lunch break, Cunningham sat in the semi's cab, waiting to resume loading the bagged fertilizer.  An empty boxcar was standing 10 feet south of the
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