The opinion of the court was delivered by: Bard, District Judge.
Railroad relies upon the emphasized part of the indemnity
clause to transfer its liability over to Crown Can. Is such an
intention expressed by "clear, precise and unequivocal
language" or are words of general import used so that every
intendment must be construed against Railroad? Without
commenting upon the wisdom of this phase of Pennsylvania law
but applying it as I must, I believe it to be the latter.
In the first paragraph of the indemnity clause pertaining to
fire caused by locomotives, Crown Can clearly, precisely and
unequivocally agreed to indemnify Railroad "regardless of
Railroad Company negligence". Those or similar words were not
used in the second paragraph upon which Railroad relies.
Instead, words of general import were used, and absolutely
nothing was said concerning liability "regardless of Railroad
Company negligence". By inserting those words in the first
paragraph, Railroad and Crown Can show that they knew the
import of and necessity for those words; by omitting them from
the second paragraph, the parties obviously intended a
different construction — that Crown Can would not indemnify
Railroad for Railroad's negligence.
Railroad urges me to adopt the reasoning of Booth-Kelly
Lumber Co. v. Southern Pacific Co., 9 Cir., 183 F.2d 902, 20
A.L.R.2d 695, wherein the identical agreement was interpreted
and an opposite conclusion reached. In that case that Court
applied the statutory and common law of Oregon; this is
Accordingly, Railroad is not entitled to complete indemnity
from Crown Can, when we have a jury finding that the railroad
On the motions for new trial, Railroad has pointed out that
a question asked by plaintiff's counsel of plaintiff's actuary
contained an erroneous calculation of plaintiff's annual net
loss of earnings, i. e., $3,900 instead of approximately
$3,200, and that Railroad objected "to any figures * * * based
on this * * * premise".
The highest figure plaintiff's actuary testified to as
possible loss of future earnings was $91,884 — which
represented $3,900 paid annually for thirty-six years reduced
to the present value at a rate of 2 1/2%. Railroad contends
this figure should be $75,712.42 based on an annual payment of
$3,213.60. The figure given by the actuary was not controlling
but was merely to aid the jury to determine plaintiff's
possible future loss of earnings as one item in calculating
total damages. It did not include past loss of earnings, past
and future medical expenses, nor past and future pain and
suffering. The jury obviously did not accept the actuary's
figure since the jury's finding for all items of damage was
$80,750, a lesser amount. The jury could well have found the
sum of $75,712.42 as representing future loss of earnings, and
in view of their findings of total damages of $80,750 this
would leave approximately $5,000 for past loss of earnings,
past and future medical expenses, and past and future pain and
The jury had all the correct facts of this case before them,
and also had sufficient information to compute properly the
present value of plaintiff's future loss of earnings.
One other reason alleged in support of the motions for new
trial merits discussion. Defendant and third-party defendant
each contend that the verdict is excessive.
Plaintiff was seriously injured, and in accordance with the
evidence and the jury's special findings, he is entitled to
relatively large damages. However, I believe under all the
evidence he will be adequately compensated with a verdict of
$70,000 and any amount above that is excessive.
By so reducing the judgment heretofore entered on the jury's
special verdict, any incorrectness of the actuary's testimony
becomes immaterial, and any merit to the above argument for a
new trial loses its validity.
If plaintiff accedes to this remittitur, then of course
third-party plaintiff's judgment against third-party defendant
will have to be reduced proportionately.
Accordingly, the motion of third-party plaintiff for
judgment in accordance with its motion for a directed verdict
The motion of third-party defendant for judgment non
obstante veredicto under Fed. Rules Civ.Proc. Rule 50(b), 28
U.S.C. is denied.
If plaintiff remits all of his judgment in excess of
$70,000, the motions of defendant and third-party plaintiff
and of third-party defendant for a new trial are denied;
otherwise, these motions will be granted.
Orders may be submitted.