Cacey v. Virginian Ry. Co.
85 F.2d 976
4th Cir.
1936
Check Treatment

*2 embank- pany steps built down wooden ment. track were railroad On the other side of the precipi- steps up leading a less steps bank These latter tous were to the town. down, path time leaving a afterwards torn up the town. At the bank to the next minor, Stike, injury flight of the of track, steps on one side of the railroad side, path the in- opposite on the and tervening tracks constituted of the railroad Sanders, Bluefield, Va. Joseph walkway M. W. crossing a or over the tracks. Va., Princeton, Burton, W. (Walter G. mining stopped by of coal was Bluefield, Day, Jr., W. Franklin K. and company that the owner- has succeeded to Va., appellants. brief), for on the ship property, of the defendant Princeton, Pendleton, Cacey, April 1, 1929, R. W. Va. purchased on John Plunkett, Loyall thirty-five both (W. camp, H. T. W. C. constituting and houses number, thirty-one Va., appel- Norfolk, brief), for on being of them located lee. on the south side of the railroad track. October, 1929, Hughes pur- the defendant NORTHCOTT, PARKER Before and property, chased one-half a interest in MYERS, District Judges, Circuit and Hughes and and have owned it Judge. that time. since built, When the NORTHCOTT, were Judge. first partly plaintiff’s right were way, located on assumpsit, law, This is an action at required, and the coal was corpo- brought by appellee, Virginia plaintiff, agree- enter a lease into ration, plaintiff, referred herein Cacey Hughes required ment. & the state appellants, citizens execute a similar lease November dated Virginia, herein referred to as ,West printed which form was in the usual defendants, District Court of taken States the Southern District United West nity agreement following and contained recover, Virginia, an indem- demnity part agrees “The party clause: of the second by the defend- executed Virginian ants, paid by judgment the amount of a Railway Company and save it harmless infant, Okley Stike, plaintiff the who was struck to one all and claims and costs that train, oper- by passenger made, death, arise or loss or plaintiff, while ated tracks of the toaka, .damage Compa- resulting Railway plaintiff’s railroad at Ma- employees ny’s property, or or other W. Va. of the The amount their or les- including the fees, attorneys’ paid, together with ment see, occupants premises, by of said $13,181.95. stipulation the By was reason or in of the in lieu of a submitted to the court was premises, or the of the said the use hearing, at which evi- jury, and after a Railway Company of the taken, entered the judge dence below was adjacent thereto.” plaintiff giving judgment an order ap- From this action this for said sum. This lease in full was force and effect on peal brought. was Stike, Okley time March which eight years & year age, Coal Coke and five months of was In the Pawama coal mine at Matoaka, seriously injured by Company operated passenger struck thereafter, Shortly plaintiff Virginian Railway Company. train of W. Va. through the Stike lived about one mile south of time of laid track of its railroad mining Virginian separated tracks and town. This track camp offices on his to Matoaka to coal from its his deliver live on the was proper. milk store from the town for his father. He did precipitous by Cacey building railroad owned left a camp, Hughes. just mining descended embankment front He camp standing In i on town. and was the ties at was south n * employees tenants t track wait- order to enable its the eastbound conveniently cross the track i n on the westbound track office,store, town, there, the coal com- standing an eastbound I They surrounding him. He instituted passenger struck circumstances. train recover- never same light shut out an action parties enjoyed $10,000. judgment the contract ed when This Ap- executed, they are entitled hy Supreme and in that view was-affirmed peals *3 place v. to themselves in Virginia. Stike same situation of the West 832, al., Railway parties which the the Company 114 W.Va. who made contract et occupied, 174 S.E. 418. so as to view the circumstances them, of judge viewed and the Hughes by notified meaning the of and of the correct words by railway up company of the claim set application things of the to the his damages Stike for on account of described.’” man, New Town of Ashland v. the suit and of the institution of 726, 500, 724, 163 Va. 175 176 S.E. company railway damages, the for S.E. 470. upon by them the and demand was made suit, railway company entering as- the to defend the into the lease contract railway it, in defending private sist in reimburse acting also to was railway company character as the for it owner entire- what ly compelled outside pay, scope the declined of a common carrier. The refused to do. lease was into for entered a nominal ($1) solely consideration for the ben- plaintiff paid The off the Stike efit of the defendants. maintenance The brought ment and action. steps possibly could not be of the only question The whether involved is slightest benefit railway company the indemnity the the clause of any capacity, way and in no aided by lease entered into the cov- defendants business, evidently by ered the the infant recovered not have consented incur the additional paid railway company. Stike and the risk-of accidents from existence of practically rental, un- contended on behalf the defend- It is less way. were indemnified in some agreement ants did in- that not demnify injuries repeatedly has been held rail that a occurring solely on its tracks and caused way company acting as a common car railway employees, negligence of itself, contract, may exempt rier indemnify even if intended to and that liability negligence. National Transit injuries certain class- against claims Davis, Co. v. Director General Rail indemnity extend did not es of 729; (C.C.A.) F.(2d) Sunlight 6 Car roads claim. the Stike (C.C. & S. F. R. Co. bon Co. v. St. Louis 802; A.) Hartford Fire Insur indemnity When we clause read the Co., Chicago, M. & P. R. ance Co. v. St. interpreta words give used L.Ed. San S.Ct. U.S. ordinary plain, tion demanded their Fe, ta P. & P. R. Co. v. Grant Brothers meaning, are forced to conclusion Co., Construction U.S. S.Ct. contention on behalf that the first 474, 57 L.Ed. 787. The not sound. See, broad, also, comprehensive, Land & Markham v. Duke and without- used is ' ' al., Imp. 201 N.C. Co. S.E. ambiguity. If used et words did etc., Louis, - R. Co. et al. St. v. Stewart indemnify against claims of the mean to S.W) claim, 836; Buckeye they (Mo.Sup.) 187 Cotton of the Stike then character (C.C.A.) Co. Louisville & N. R. Co. nothing. There no other class Oil v. meant was brought against could be of claims that railway company indem against which to steps The location and use of nify. adjacent greatly railroad tracks added interpretation indemnity This injury by passing hazard trains. emphasized when we look clause examination of decision An surrounding circumstances the execution Case, Virginia Stike West Court lease. supra, shows that was held “ parties to Stike because the ‘To ascertain the liable for the intent presence by the the fundamental rule in the construction consented to (Chesapeake railway company an agreements & O. Canal Co. constituted invitation Hill, L.Ed. 64); public point track 15 Wall. and in to the to cross the that lang upon railway company such construction look all courts and cast .necessary public crossing. employed, subject-matter, uage The duties to a and: provision effect, boy merely gen- was injured an held that but court provision eral for the licensee. But vitee and arising “by consequence' and con- there would have been no reason or sequent plaintiff.. Against any premises use” of leas- loss to lease, ed. ordinary loss of defendants con- this character the lease, form railway company tracted harm- to hold embraced harsh, consequences may steps; less. but the land covered description premises plain being contracts enforced. leased must be follows, viz.: following “The described on behalf of decisions relied land, tract of County situated in indemnity clauses deal with *4 Mercer Virginia, and State wit: of West contained in contracts which the in- from Matoaka, Va., Steps At W. M. 356.4. P. benefit, demnitee direct derived some either opposite survey survey 275-15 station indirect, they controlling or are not right station 275-50 southerly from the of here. way boundary line to within of the feet not come The contention that Stike did center line the of as eastbound main track persons by within the class of covered the yellow blueprint shown in on hereto attach- indemnity clause lan The is sound. not part ed and hereof.” made a clause, guage persons,” “or to of the other Paragraph 1 of the contained covenants of general is At time all inclusive. the the the be land leased tois by the & execution of the lease steps.” as Paragraph used a “location for Hughes, the crossing the railroad over 6, material, which is one here fol- the is as tracks, steps, by down the was in the use : party part agrees lows “The of the second public generally, and known this fact was Railway Com- defendants. pany and save it harmless and all The judgment is affirmed. made, claims and costs that arise or be death, resulting damage loss or PARKER, (dissenting). Judge Railway Company’s employees or crossing steps involved in liti this prop- or to other or their gation plain were constructed because the erty, lessee, occupants including or railway company through tiff its track laid premises, by of said reason or in conse- Matoaka, Va., sepa W. in such as to quence the occupancy or the use of of large part rate mining village a of the of premises, or said the use propbrty of the Company the Pawama Coal & Coke Railway Company adjacent thereto.” the town. The by were built coal (Italics supplied.) company in employees order that its injured crossing Stike was while might tenants to the town from which have more convenient access railway crossing, tracks a this as they sep had been result negligence railway of the by arated the construction of tracks. in the of one of its built, they After had com trains, and recovered a verdict pany required the execution of dollar-a- $10,000 ment in the sum of on account of year property lease for negligence; but claim which they located, on which were evident the verdict and were obtained purpose preventing easement an clearly arising “by not one reason way being acquired a result of their as consequence of the or the maintenance. steps, use” of crossing or of the led, they “by Some time after one arising had but reason purchased neighborhood in the and in negligence of” the steps, they approached railway company were an the of its railway company agent that, properly told train. Where one using cross- remain, injured ing if the would as a negli- result such necessary gence, for the be defendants to secure use of crossing not the but negligence an encroachment lease for injury; which causes the affected, just respect done thereupon with and the claim arising cannot pipe properly “by to a water had laid be said to arise reason or in railway company’s consequence” tracks. use Nothing the crossing, import indemnifying was said as to for these terms a causal relation- ship. use the crossing due no more es- accidents negligent operation trains; relationship, and tablishes such causal even injury the lease executed though contains no would not have express occurred use, accidents, proximate but for than use of street as cause of which injury negligence party could be said cause of an is the indemnified.” falling sign, caused because seems clear that claims on account person injured would not have been injuries caused, cross using sign struck the street. The if he had not been ing, company, but between the distinction plain are not embraced within the condition a mere but, agreement; even if without which it have occurred used, there were ambiguity recognized is well law. For the rule well the contract of settled that two, distinction 37, 94, between the see C.J. indemnity will not be construed to indem b; Bailer, note W.Va. State v. nify the indemnitee losses result 66, 68; Am.Rep. Bang Cleveland v. acts, ing him through own his or, 892, Am.St.Rep. 87 Me. 32 A. expressed where such intention is Trapp McClellan, App.Div. unequivocal terms. 14 R.C.L. 31 C.J. 130; Boney v. N. N.Y.S. Atlantic & 451; Washington Berkeley Bridge v.Co. Co., R.C. 145N.C. And S.E. Pennsylvania Steel Co. F. indemnifying against claims 32; May Southern Bell Tel. & Tel. v.Co. *5 arising reason or in (C.C.A.5th) and Board of Aldermen property ought use of construed to not be 983, 984; (2d) F. Buckeye Oil Cotton cover a case where use pf Co. v. Louisville & N. R. Co. not the the arising F.(2d) 347, Shamrock Co. Towing claim but furnished a situation City (C.C.A.2d) of New York which to the claim. gave another rise (D.C.Wash.) Wallace v. United States If to it had been intended (C.C.A.9th) 18 affirmed indemnify against liability aris for claims F. (2d) 20. These be dis authorities cannot ing injuries out of occurring cross tinguished ground on the that indemni ing, there would have been no trouble greater tee tract than received benefit the con from providing by appropriate language. bar; ques case at An giving additional reason for the lan- is tion not one of in consideration but of guage only such a construction terpretation. But if such criterion to steps are the control defendants. under to, appealed be certainly it is unreasonable con- trains under the think defendants, that these for. plaintiff. trol of If fail to small benefit would receive .from the steps proper repair, maintain is having a crossing steps, maintained indemnify reasonable that should agree would plaintiff therefrom; against arising claims against claims arising the negligent but it is not reasonable defendants that operation of its trains over the crossing as should contract to save harmless distinguished from claims arising from the arising negli- out of its own crossing. gence in operating trains over which de- interpreta- unreasonableness of the fendants have no control. As said tion contended apparent becomes Judge Grosscup, speaking for the Circuit applied if it is to other situations. Appeals of the Seventh Suppose applied the lease had been Ry. North American Construction Co. v. alleyway use of an ing, beside a station build- Cincinnati Traction Co. F. (C.C.A.7th) 172 any would one contend that it indemni- 214, 216: indemnity “Contracts of such as against fied. a claim for upon, usually one here are intend- sued damages would arise if provide against ed to loss negligently dropped some article from an party, operations through one upper story station building other, by physical conditions or caused person passing alleyway? sup- Or that are under the control of the other— pose applied warehouse) it had been ato party over which the control, indemnified no has w'ay, built on would one party indemnifying has contend Indeed, it indemnified the control. lan- would take clear against such guage indemnity a claim for as would damages to show that a contract of arise if the truck oper- of a customer of the was intended to cover conditions or warehouse negligently ations demnified, struck party under the control of train while track go the control instance, such, indemnifying party, warehouse ? result, so far as these 6 of the a harsh that, paragraph if It is argued concerned, contrary be but to liabil- cover construed to is not covenants principles of construction for well-settled character, nothing there ities this without which I have adverted. is not answers several There are cover. it to this. that, multitudinous significance in all the well rule is place, the first In the litigation con- which has arisen over leases of a that, where the settled sort, ex- case can found which can- this be clear, construction the rules tract is indemnity cove- ambiguities to tends the raise invoked to not be character, where place, lia- nant to cases of this second In the by them. resolved arisen, main- claim has from the use sued on resulting from injuries bility for leased, but from by made of steps is covered and use of the tenance trains, company’s covenant, seem be would and this indemnity agree- over lessee no control. has coverage sufficient guard lease executed in a ment contained right of acquirement of a place, the third user. adverse and, we if mere form contract beyond was a deter- language to look are to consider the meaning, we must mine its provision indemnity purpose which the serve, merely respect with case lease, applied in the particular but. CO., Inc., v. RICHMOND DU PONT RAYON generally. of encroachments INDUSTRIES, Inc., al. et covenant such a saying Instead No. 4057. *6 arising out claims in a form contract covers company in this of the case because it Appeals, Fourth Circuit. apply else nothing there Oct. to, other struc- look to should rather or- which such form lease would tures to dinarily applied, whether and determine ap- meaning would have the covenant structures, stretching plied without to such arising language to cover claims out negligence. case the indemnitee’s of warehouses, etc., platforms, constructed railway’s way, there on a this covenant wide of claims to which class applicable; would be has never cases, I supposed in far as am ad- such vised, liability arising out of to cover a trains.- I see give coverage in case reason to it that merely because the structure to which applied likely happens to be here is not character. give rise to claims another better settled than that No rule is be con- language of instrument is to person strongly us- strued most ing it; and, intended if the here indemnify it should that against damages arising out of trains, it should have of its language, in unmistakable said so depended upon general have form of which no one would have

thought meaning giving such if it been used ton or a cot- to cover a warehouse platform flight instead of interpretation crossing. give it To only work this case seems to me not