*1 of the auto- question but that the driver guilty mobile was & Baltimore Boles v. matter of law. 551, 156 Co., 168 Ohio St. Railroad Ohio 735; Detroit, Ironton & Toledo N.E.2d (C.A. Yeley, 165 F.2d Railroad Co.v.
6). however, the law, Under Ohio imputed not be driver’s could Bourne, 118 passenger. Rehklau to his v. Davis, 494, 161 N.E. Ohio St. Co., 104 R. New Central
Admx. v. York (mo App. 497, N.E.2d 477 Ohio 19, 1957); certify June tion to overruled p. 585. O.Jur.2d, Automobiles § plaintiff know how to did not ridden with and had an automobile
drive feet when the driver about Pelt, Judge, Van District dissented. that under We think collision occurred. minds could reasonable the circumstances plaintiff contrib differ as to whether negligent. Court
utorily The District submitting this issue
was correct jury. judgment Court District
affirmed. Graydon An N. ANTHONY
Nina Graydon Partners, thony, An d/b/a Appellants, Company, thony Lumber ARKANSAS RAILWAY
LOUISIANA & COMPANY, Appellee.
No. 17020. Appeals Court States
United Eighth Circuit.
April *2 Tackett, Shaver,
Boyd Tackett & Ark., Jones, Texarkana, appellant. planing Texarkana, Ark., mill and of the spur south the- LeRoy Autrey, In 1956 the track at this time. brief. on the him spur track about railroad moved the eight Jesson, Hardin, & Barton Bradley D. from, *3 away inches to the north and appellee Smith, Ark., for Hardin, Fort loading appel- because shed some Hardin, Hardin, Barton & and P. H. Hardin, striking the shed. lee’s boxcars had been him Smith, Ark., was Fort Agree- “Industry In Track 1957 another on the brief. extending ment” was entered into the- OOSTER- and VAN VOGEL Before track 185 feet. westward PELT, Judges, HOUT, and VAN Circuit May 15, On 1959 when the Railroad' Judge. District moving out one or boxcars of was two length woodchips, a location a car at PER CURIAM. loading shed, brakeman so west of Cloudy brought by Rail from a car and received was fell This action injuries Com the Lumber which re- recover from severe road to pany partners fractures right leg injured paid amputation an of his amounts sulted Cloudy, brakeman, joint. un Herman His claim above the knee railroad Liability Employers’ the Federal Em- Federal the Railroad under ployers’ der the Liability court tried to the for The was Act was settled Act. case jury. $35,700.00 payment hospital for found The court of his without a reported $2,018.50. opinion as Loui plaintiff suit in an and medical bill of This Ry. Anthony, brought D.C. amounts- to recover & was these siana attorneys W.D.Ark., F.Supp. $1,500.00 286. fees and ex- Judgment penses. plaintiff. was for ap- questions presented on this The peal dispute factual at the trial cen- are: The Cloudy’s fall around cause of tered negli- guilty appellants 1. Were dispute- In turn from boxcar. this causing Cloudy’s gence proximately conflicting- part around two revolves in juries? given by Cloudy to wheth- statements appellee free 2. Was portion of the er or not his head struck a appellee’s not, and if does loading Cloudy appear shed. did not as- recovery? prevent a agreement By a witness. statements agreement Does the 3. were received as evidence. Agree- “Industry Spur Track called the fully appellants require indem- court with- ment” nify The was tried case jury. railroad for the amounts ex- The court found for the- a out Cloudy’s injuries? pended because of railroad. finding Did the trial court err in 4. briefly stated, assigned, The errors guilty passive only appellee notwithstanding the court’s- are that finding guilty appellants and in of active findings conclusions of law: of fact and negligence ? evidence- no substantial There is 1. Anthony railroad The has served Cloudy portion of the struck Company Hope, Arkansas, Lumber near loading shed. agreement 1941. an since At time proximate Cloudy’s cause 2. The “Industry” "Spur an known as Track any negligent injuries was act or Agreement” was entered into between Company. Lumber omission Company Railroad and Lumber assignment part aas of this Discussed laid and 671-foot was appellee the contention Railroad’s is negligence Railroad. a 66-foot extension proximate was the cause. pursuant supplemental was laid Agreement” “Spur agreement, Track which far does so as material here require agreement. of this case facts full is like loading A truck not on the just shed was constructed indemnification. west findings background the factu trial court stated As only part: review in need we al discussion briefly principles certain dispute “There is a factual as to by this been stated from time time Cloudy whether struck forth which are well set court and object all, object, or whether the United v.Co. Geer-Melkus Construction him, part if one did strike was a fol States, Cir., 302 F.2d stationary of one cars lows: object. There are two facts which v. set. Pendergrass v. New York Life Ins. law. substantial F.2d Surety Co., induced can substantial onstration that puted ed fact credibility based have formly applied court. the bility legal principles attempt to substitute our clearly erroneous, and due court that il shall be “The “Such “Rule jury, Fruehauf Procedure, 28 U.S.C.A. be trial determining repeatedly held 223, findings Transport fact ‘shall not be set aside Cir., Fact set aside Co.,8 The trial trier of trial by an 52(a), issues. given the witnesses.’ court rule is based the sole issues is vested in the of witnesses and the cold 181 F.2d evidence evidentiary support or findings Trailer Cir., court erroneous view the to the Federal only upon fact, Nelson Mfg. court’s they credibility and has been judge 269 F.2d judge fact the courts. record, that we Co., cannot opportunity of whether court were supported & responsibility Rules of fact determining v. Seaboard upon sound Equip. clear dem- judgment, the 882, 886; the Cir., and requires for findings without will not be disput- regard unless credi credi- trial trial uni- Civ- dis- up- We Co. the roof statements of to the evidence mentioned signed as their first error. ered court, namely, side you? and let the brake last you know, started out of the truck head, thus which struck Herman or roof extension at the west corner rafter which the ladder between the cars path the to the loading shed, ond fact was that *4 corner of the roof above tionary object, to-wit, the western ered The first fact is convince is this [******] “Q. You “A. of his head and place forehead right car, place his nearest overhang, * the wheels of on finding and side of his head. The sec- waist between * * causing something was noted on Cloudy. court supported don’t know up loading got rail immediately end rafter was a I there. which injury got we have up of the that was a chipped the cars to line off, him to fall from chipped the At first he said: on the on the shed.” Cloudy struck deep the the appellants only injury on the what the truck In addition overhang supporting last adjacent conflicting the into gash when car, inside, splint- on his inme track, go splint- car. sta- end the hit up on trial I as- weight bility of witnesses I don’t “A. know what hit me. given testimony. Upon their “Q. you loading Do think the evidence, including appeal the you? shed hit ' may reasonably inferences I “A. don’t see how it could. therefrom, is to be viewed in drawn * * * I don’t know what could light pre most favorable me. struck party. vailing United States v. Stoppelmann, 13, 17; 266 F.2d S # # (cid:127)S # Pendergrass “Q. place you New about v. York Life How Ins. had supra.” Co., purpose ? For to work there top working, one box car to on the you such as walk were doing together, I had climb when was struck. coupling cars you top was too close since shed Would work brakeman. place to be the side say work? a safe it’s He later said: kansas, I ly sliding work nection with could me, the other. just hit me. across I cident shed. dump to do car “A. Under “With “Q. [******] “A. do but about on the not there that with the remember of the There was No, I don’t know what.” get further reference May 15, 1959, Hope, Ar- After down should like to know That as safe head, sir. other out of that that the conditions—If accident? I you is, just I don’t something hitting side, got and knocked if nothing on one side were dump. you what hit me had on there’s way know what state get continual- the to anything in con- my It was on the car you big me ac- I mobile back of his head. intersection where she the other statement she about 40 feet ments The sistency and ed that loading trian. ulation that lows, forehead was Cloudy saw Appellants cars.” In McAfee establish without here.” their he the car court this court had it of In one she but rather which struck her when shed. This last was conclusion claimed, an said the effect of when about “for say *5 injured plaintiff, away injured struck Felts, Cir., said the part of the shed from the it and before conjecture may not affirmatively jury she rather was struck. approaching the one any part statement said evidence saw the to fact that be disturb- foot the incon- two determine than she it was pedes- shows away. state- auto- spec- fails F.2d first fol- hit car, part but was some from it regard Cloudy’s testimony We building just adja- of shed or conflicting. as The trial court believed just spur It had cent to this track. by and he hit the shed so found. that was building part to some of that finding by supported Such a Cloudy’s was one of just was roof line I believe phys statements and certain cars, point railroad at the above the pointed ical out court. Such facts place.” took the accident where finding clearly may not is erroneous and “Regarding the I accident had here not be disturbed May 15, Hope, 1959 at remaining Proper consideration of employedby L while I was and A setting requires out material issues Co., I fell Railroad from one of the agreement spur portions track of en- top I of the box-cars when was struck appellant shipper between the tered into object on the head and fell appellee railroad, and the which are: ground to fering injury. under the train suf- ** * Shipper going prevent shall was “5. anyone, train mph except Carrier, as about 5 at the I well time fell. I as placing keeping any recall on from or can’t which side to the refrain vertically along I closer train I fell. was somewhere obstruction than 25 Switch, rail the side of shed at to the nearest feet time horizontally exactly I I was hit. don’t than know or closer feet 8% happen suddenly. since it line where oí Switch. so to center Carrier’s knowledge just coupled The box-car had such obstructions and was beyond operation feet 20-30 end continued on Switch the. just coupling shed. I had be a waiver finished shall not of this cove- climbing nant, up and I cars nor Carrier’s to re- juries. findings damages supported by persons Such are to for cover may substantial evidence. property therefrom. result as tion, per ment sumes ligence, premises, loss or “10. locomotives from concurring ployees and to less Carrier from jury agrees agents, if ties “6. stock others, Shipper, Shipper’s some risk .of of agrees erty Switch, equally. [*] premises any serving hereto transportation. or to parties It while on of railroad locomotives fire Every belonging claim or damage any all and to or in its arising n [**] *(cid:127)* regardless indemnify carrier shall arise from property it Shipper, negligence of Carrier understood other responsibility for operated hereto and their shall or about fire, and person undertaking shipments in course from vicinity act liability loss, to Carrier person or property of persons except or omission and hold borne fire caused employees Shipper also damage and to railroad of both Switch; Shipper as- property other Carrier Shipper’s damages or corpora- joint involves purpose rolling herein harm- move- or to or in- prop- Ship- them than neg- par- em- [*] or road was Arkansas law controls. work. While tract part by inappropriate wanton or wilful misconduct. tive pose able the railroad’s doubtful to we sify damages which are caused at least in guilty construction of reasons The did discovered. Under our Cloudy’s provide Cloudy give great granting present problem shipper’s negligence answer parties. is the of this is an Arkansas The go type hereinafter injuries. questions of local law. experienced passively cases to the extent on the shipper’s agreement court appeal railroad’s the railroad negligence weight We assume the trial this bearing directly upon spur with a safe found that part of the railroad We unnecessary which contributed negligent such agree *6 problem set out contention that have to the views of contract trial observe affords track own court classified the railroad No circumstances, indemnity for been that the con for the constituting passive, judge upon we negligence. agreement. lies active controlling no basis place to cited deem it respec failing in clas rail pur any for an or effect of a covenant. validity shall * question of the The * * may any party waive Either raised this contract is not of the any time the other default court, shipper con appeal. the trial In affecting any impairing without rights arising indemnify a which tended that contracts subsequent against negligence, person his own under * *”* default. contrary present, are here circumstances policy public and void. trial court to properly The trial court found that rejected contention for the such building which erection of pages out on 292-293 of 199 set reasons Cloudy came in contact constituted a is F.Supp. The whether the issue then minimum clearances violation agreement provides indemnity spur track agreement paragraph of the re 5 which gov present situation. rules in the observe; shipper to that such quired the validity erning requisites, and con building subsequent was erected generally apply contracts struction building spur track; initial indemnity 42 C.J.S. contracts. Indemni obstruction; and that constituted it 569, 5, p. ty states: § constituted violation language employed shipper, “The must part clearly definitely proximate Cloudy’s show an inten- cause of was 864 Chicago indemnify Ry., a certain Coal Co. v. & E. I. 7
tion to 963; liability; Buckeye is not F.2d v. otherwise it Cotton Oil Co. loss or indemnity, R., Cir., Louisville as where & Nashville R. a contract show, clearly 347; F.2d the contract Terminal R. Ass’n Louis terms of of St. indemnify, Co., 1013, v. but not an intention Ralston-Purina 352 Mo. pay promise certain S.W.2d direct John P. Gorman Coal Co. money Ky. perform R., a cer- sum of Louisville & R. Nashville 551, tain If the intention to indem- act. S.W. 487. nify reasonably clear, however, Weyerhaeuser Steamship v. Na- Co. necessary that contract It is not 563, Operating Co., cirema 355 U.S. any particular in should be drawn involving 491, S.Ct. 2 L.Ed.2d a case expressed words form of or be indemnity ship the against owner afforded a technical If terms. the intention to stevedoring company under indemnify apparent from the Court, law, Supreme maritime hold- instrument, whole it will be constru- ing indemnity pre- a fact issue on indemnity, al- ed contract sented, part: stated though it is called some other parties.” name indemnity “Petitioner’s claim for primarily rests contractual See annotation “Construction and effect relationship respond- between it and liability exemption indemnity clause stevedoring ent. While the contract agreement.” spur track 20 A.L.R.2d indemnity express contained no page 715, 711. At the annotator states: obligated clause, respondent it ‘to “Consequently, may stevedoring faithfully be stated furnish such general as a may rule that an required,’ and to services agreement pro- clause in a provide necessary all labor and su- liability tects the pervision railroad from proper for ‘the and effi- loss caused its own cient conduct the work.’ As this provided language Stevedoring Ryan of the clause Court said in Co. that parties. shows this was the S.S.Corp. intention v. Pan-Atlantic [350 U.S. ” * * * *7 232, 133], 76 S.Ct. 100 L.Ed. language supra, such ‘a constitutes provisions agree of the undertaking [per- contractual to vary considerably ments from case to ’ safety,” “with reasonable form] phraseology case. The used has im U.S., 235, 350 130 at S.Ct. at [76 portant bearing upon the construction 133], discharge 100 L.Ed. and to including indemnity the contract damages resulting ‘foreseeable provisions. Many involving spur cases shipowner from the contractor’s im- indemnity track contracts have held that proper performance.’ U.S., 350 at will be protects found which the railroad 129, S.Ct., 235, footnote 3 [76 100 part by losses caused in own its L.Ed. Petitioner 133]. contends negligence where the contract construed undertaking that a of this breach fairly as a whole shows the intention of by respondent injury caused the to parties provide to protection. for such longshoreman, petition- that Pennsylvania Seaboldt v. R., Cir., R. 3 liability resulting er’s from the 296, 290 297-298; F.2d Baltimore & ” was ‘foreseeable.’ breach 355 U.S. Alpha Ohio R. R. v. Co., Portland Cement 440, 565, 78 2 S.Ct. L.Ed.2d 491. Cir., 3 207, 211-213; 218 Chicago, F.2d R. Dobry I. & P. R. R. v. Mills, Ryan Stevedoring Flour 10 also Co. v. See Pan- Cir., 785, 788; 211 F.2d Minneapolis- Steamship Corp., 124, Atlantic U.S. Moline Chicago, M., Co. v. 232, 133; Weyer- St. P. & P. L.Ed. 76 S.Ct. R., R. 725, 199 F.2d 730-731; Steamship States, Co. v. haeuser United Booth-Kelly Lumber Co. v. Southern U.S. 83 S.Ct. 10 L.Ed.2d Pa Co., Cir., cific Deep (1963). F.2d Vein 1 provides:. Restatement, Restitution, the track free from obstructions for specified par- minimum clearances. The Rule. General “§ go say, then ties toon “Carrier’s knowl- person who, inor “A in whole edge of such obstructions and con- discharged duty part, which is has operation tinued on Switch not be shall by owed him but as between a waiver of this covenant nor of Carrier’s himself and another should right recovery damages to for such to discharged other, been is en- persons property may as result there- other, titled to from the from.” beyond ques- is established payor unless the is barred shipper building tion that the erected a wrongful nature of his conduct.” which violated the clearance covenant Responsible for 95. Person “§ and that such violation was a substantial Dangerous Condition. producing factor Cloudy’s injuries. person has become “Where agreement relating portion of the harm caused with another for liable to non-waiver manifests an intention person because to a third knowledge parties of the obstruc- negligent make safe a failure tion and continued use of the switch dangerous land condition track shall not be a waiver of the cove- chattels, created which was Any negligence part nant. of the which, misconduct of the other go beyond railroad here did such two, was the other’s between the agreement goes waiver. The fur- safe, duty entitled to make he is say knowledge ther use for ex- restitution from other of the switch track shall not be waiver dis- penditures properly in the made recovery of the railroad’s charge liability, unless after of such damages may result therefrom. danger, discovery ac- he expression We consider this a clear quiesced in the continuation parties provide the complete indemnity of their intent condition.” damages caused covenant, violation obstruction to said sections. See also comments provide and to further that such facts in this case now look to the We demnity operative despite the fact light applicable law above the railroad continued use the made the ultimate stated. The trial court knowledge tracks with of the obstruc- finding that the railroad is entitled to tion. indemnity. support full ing, find- of this quite states: It is true the trial court that the inten gathered tion of the must be but “There is no doubt *8 Shipper, from an instrument as whole.
provision paragraph in No. 5 with recovery support in of its contention that the minimum reference to clearances contribution, be limited should upon to relies by has violated the defendant been paragraph 6, the last clause of making industry present case, in the “; any liability to-wit: and if claim or plaintiff railroad, it liable to the gardless re other from than fire shall arise from knowledge the latter’s concurring negligence joint or of both F.Supp. of such violations.” 199 parties by it shall hereto be borne them equally.” Immediately preceding the apparent language just quoted is that the provision trial is a shipper agrees specifically court determined that the had which the indemnity indemnify contracted losses and hold the carrier harmless by shipper’s damage any loss, injury caused the failure arising to observe from or any his covenants as to obstructions. In our act or ship omission of the view, indemnity language per. such construction of the supports This contract fully strengthens paragraph In is warranted. No. our 5 and construction of clearly appellant keep paragraph the covenants to 5. We believe that the trial demonstrated, indemnity adequately or contribution has between court why joint F.Supp., In tortfeasors. a contractual pages 293 to 6, demnity paragraph situation, application clause of the contribution passive negligence, reason- by shipper, cannot theories active and upon relied primary modify secondary negligence, detract ably are construed inappropriate. Weyerhaeuser indemnity provision of the Steamship from the indemnity Operating Co., agreement. contribu- Co. v. Nacirema U.S. Mills, 563, 569, Dobry Flour 78 S.Ct. 2 L.Ed.2d found in tion clauses Booth-Kelly Alpha Pennsylvania R., supra; Portland Seaboldt v. Chicago, R. and the Dobry identical cases, supra, R. almost I. & R. are P. R. v. Flour Cement Mills, supra; Minneapolis-Moline paragraph 6 Co. v. found to those Chicago, supra. agreement. R., M. In each St. present P. & P. R. contribution found the cases, court Shipper’s claim that Uni supersede wipe out or did not clause Among form Contribution Joint Tort indemnity provisions. Act, by adopted Arkansas, feasors Ark. seq., supports Stats.Annot. 34-1001 § et viewed the contract When position is without merit. Section it can be whole, not that we do believe Act, Ark.Stats.Annot., 34-1006, § pro fairly the contribution that said expressly provides: “This act does not by shipper is in vision relied impair any indemnity under indemnity provisions with the consistent existing law.” agreement. con Doubtless provisions properly intended The trial are court tribution held that the shipper in specified covered covenanted to maintain cover situations demnity provisions, injury minimum respect where the track clearances with negligent obstructions; by* joint act shipper some is caused violated covenant; agreed specifically shipper covered said which is not injury example, any damages if the hold railroad harmless contract. For negli covenant; caused an obstruction breach had caused of such been injuries Cloudy, gently placed but outside pay- tracks near the for which clearances, con specified railroad, ment was made track were likely apply. by shipper’s provision would caused breach of the tribution covenant; hence, clearance the car- event, should if there indemnity. rier entitled to full any inconsistency indem between judgment appealed from is para nity provisions in and contribution affirmed. graph hereto for reasons we believe provides paragraph 5 fore stated PELT, Judge (dissent- VAN District here complete in the situation ing). Thus, Cir presented. Seventh like the disagree Co., supra, majority Deep opinion we Vein Coal cuit para specific provisions points: at three believe general prevail graph over the 5 should a) As to whether determination as to *9 paragraph 6. provisions of passive negligence and active is material case; Paragraph (Here decision 10 affords little additional to the in this I disagree problem but construction emphasis does also with the trial in the court’s aid deter- binding negligence shipper’s give the effect that mination the some obligations by shipper negligence and assumed the was active the railroad’s provisions. passive.) nonwaiver the and to b) As to whether 5 of the clause Indus- we have held that the Since loss Agreement provides complete Track trial by indemnity, is covered contractual here liability indemnity; and provisions is controlled the c) interpretation contract and to the consideration As of need clause given Agreement. to common law the Industrial Track 6 of not standards building indicated, I unable to that the railroad the am after the of above As eight that shed adopt inches trial determination moved court’s some the provide greater negligence was case shipper’s in this and clearance could passive. negligence guilty be held moving railroad active and that in of of appeal from it a This a case sufficient distance to elimi- court in dangerous involving nate the Texas substantive situation. judicial defini- law forth the set clearest I shipper conclude that both the and negligence passive tion active of guilty negligence the railroad were of find, when it I have that been able to negligence and that their concurred said: produce injury. majority opin- negligence purpose one exists where ion “Passive assumes of deci- this brings negligently a person guilty about sion that was of railroad negligence. active condition anor occasion negligence another where exists is, my conclusion, therefore, It party negligently upon con- acts later, which I make reference that both wrong.” perpetrates a dition and being negligent portion the latter Greyhound Lines Southwestern applies, clause 6 to-wit: F.2d Co., 8 Coach “ Crown " * * any and if or claim lia- (632) bility other than fire from shall arise point concurring this joint with in from The case itself is not It is excellent. case but the definition both hereto it shall be Restatement, supported equally.” is Restitution, Sec. borne them majority to in the referred Booth-Kelly, Such as cases cited in opinion. majority opinion, complete which allow brought indemnity, I one who conclude that the do so the basis that guilty case passive in the instant about the condition railroad was shipper shed in shipper property built the was who and the owner requirement negligence. violation the clearance active I do not believe these application acted one who cases have in the absence moving finding in shipper property the railroad condition was a guilty negligence. the move- the track. Without cars over owner was of active Cloudy I conclude that ment of cars disagree majority opinion I with the injured. The term have been would not provides that clause complete in and itself therefore, negligence” seems, “passive indemnity in the situation here readily shipper’s applicable more presented. it, Clause view is a was so to the railroad’s. acts than only. provision non-waiver If it tois Judge Bruchhausen held District affording complete construed as be demnity Spielman v. N.Y. & Hartford Rail- N.H. every circumstance, under Co., D.C., F.Supp. in a road regardless rail- nearly point our case case as language road, just quoted then the dangerous A condi- I have found. application clause is without or use. Trap created Rock Com- tion my background interpretation As erecting post pany too close to point I would of clause 6 first out that it the railroad track. case side of basic in law brought by injured employee, “ * * * actively negligent. was held contract of railroad indem- against nity claimed will not be over the owner construed railroad to in- Judge realty. demnify the Bruchhausen indemnitee *10 “Surely resulting through Railroad’s him entrance losses stated: upon ' negligent Trap premises, acts, Rock’s own where over which such in- right way, expressed unequivo- of did not had a not tention is transform it negligence.” passive Am.Jur., Indemnity into terms.” 27 actions It is cal observed in to be the instant 15. also case § negligence second of sentence 6. applies vision clause whether rule
This my It is conclusion that if the the sole said to be indemnitee is “regard- provision apply only of clause 6 is to concurrent accident or cause of the negligence” less railroad then the 8, 34-38. A.L.R. cause. See agreement so stated should have shippers hold wants to railroad If the repeating in the second sentence these that suffered as of loss such as insurers first words which were used in the sen- require do case, it I would in this “regardless neg- tence, to-wit, of railroad language. explicit more so in ligence.” Likewise, clause is if Rd. Co. Pacific in Union said It was regarded indemnity provision an Co., Lumber Bridal Veil v. language repeat- same have been should F.2d 825: Reading ed and clause clause observing applies and is re- “This court should that the first sentence regardless track contract to hold luctant railroad observing ac- If that was insurance. the omission these words in one of arguable tually sentence, have been it would intended is second it say lan- easy unmistakable shipper inso to believe that had the * * * if guage indemnity provision in the contract. did not 100% spelled negli- apply “regardless out as one contract were railroad might you gence”. find then insurance hiring shippers trucks instead negli- parties were In case both this 833) (219 F.2d cars.” railroad gent. definition in Under this court’s Greyhound Lines v. Crown Southwestern forth rule was set axiomatic Another Co., supra, pas- were either Coach both Light Murry, Co. v. Power & in Arkansas negli- sively negligent or railroad’s 98, 100, where 331 S.W.2d 231 Ark. negli- gence shipper’s was active the court said: gence passive. it event was “ * * * many held we have times joint concurring negligence. ambiguity, doubt, case that in defines concurrent as “con- Webster tributing agreement shall be a contract the same event or effect”. against party interpreted who “operating It simultaneously”. also been has defined prepared instrument. See could The accident not Company Insurance American combining happened without Rowland, 177 Ark. 8 S.W.2d I would of each. there- 452.” portion apply quoted fore the above agreement appellee drew the Since relating joint concurring clause here and since volved it is judgment and would award contract, it should in case of doubt be railroad for to the paid amount 50% interpreted appellee. Cloudy and not for as ordered 100% trial court. Examining light clause 6 in the recognize foregoing a difficult this as case and any it to be authorities is observed sentence, I do this dissent intend in not to the first as applicable distinguished only critical manner to be here since relates my “regardless judge fire, applies trial colleagues two that it esteemed of rail- negligence”. language who have reached a road No such different indemnity pro- in clause conclusion. used 5 or in the