The opinion of the court was delivered by: Bard, District Judge.
In the trial of this case the jury returned a special
verdict finding that defendant Pennsylvania Railroad Company
was negligent, that plaintiff was not negligent, that
third-party defendant Crown Can Company was negligent, and
that plaintiff was damaged in the amount of $80,750.
Thereafter, I entered judgment of $80,750 in favor of
plaintiff against Railroad, and of
$40,375 in favor of Railroad against Crown Can. This case is
now before me on Railroad's motions for judgment against Crown
Can in the amount of $80,750, and for a new trial, and on
Crown Can's motions for judgment n. o. v. and for a new trial.
Plaintiff was injured on a railroad siding located on the
premises of Crown Can. Plaintiff slipped on a tin can as he
mounted a moving train in the performance of his duties, and
was injured by being caught in the close clearance between the
box car he was mounting and a pillar or girder erected by
Crown Can with the knowledge and acquiescence of Railroad.
Railroad's negligence consisted of failing to provide
plaintiff with a safe place to work. As submitted to the jury,
Crown Can's negligence consisted of maintaining their premises
in a condition of which Railroad had no notice.
The real problem on Railroad's and Crown Can's cross motions
for judgment is the legal effect of the indemnity clause of a
siding agreement between Railroad and Crown Can.
This indemnity clause provides:
"8. It is understood that the movement of
railway locomotives involves some risk of fire,
and the Industry assumes all responsibility for
and agrees to indemnify the Railroad Company
against loss or damage to property of the
Industry or to property upon its premises,
regardless of Railroad Company negligence,
arising from fire caused by locomotives operated
by the Railroad Company on said side track, or in
its vicinity, for the purpose of serving said
Industry, except to the premises of the Railroad
Company and to rolling stock belonging to the
Railroad Company or to others, and to shipments
in the course of transportation.
"The Industry also agrees to indemnify and hold
harmless the Railroad Company for loss, damage or
injury from any act or omission of the Industry,
its employees, or agents, to the person or property
of the parties hereto and their employees, and to
the person or property of any other person or
corporation, while on or about said track; and if
any claim or liability, other than from fire,
caused by locomotives as aforesaid shall arise from
the joint or concurring negligence of both parties
hereto, it shall be borne by them equally".
Since this contract was made and is to be performed in
Pennsylvania, the law of Pennsylvania applies.*fn1 In
Schroeder v. Gulf Refining Co., (No. 2), 300 Pa. 405, on page
411, 150 A. 665, on page 667, the Pennsylvania Supreme Court
"`A party may contract for indemnity against
the results flowing from his own acts; but "no
inference from words of general import can
establish it"; on the contrary, "the intent of
both parties to that effect [must] be made
apparent by clear, precise and unequivocal
language."' Camden Safe Deposit & Trust Co. v.
Eavenson, 295 Pa. 357, 145 A. 434, 436. `In all
cases, such contracts should be construed
strictly, with every intendment against the
parties seeking [their] protection.' Crew v.
Bradstreet Co., 134 Pa. 161, 19 A. 500, 7 L.R.A.
661; Pennsylvania R. R. Co. v. Roydhouse, 267 Pa. 368,
110 A. 277. Though an agreement of indemnity
for loss or damage is enforceable (Rundell & Co.
v. Lehigh Valley R. R. Co., 254 Pa. 529,
98 A. 1054; Atherton v. Clearview Coal Co., 267 Pa. 425,
110 A. 298), the purpose to so relieve from
liability must clearly appear, and the words used
must be construed in connection with the
circumstances attending the parties and their
object in making the instrument. Perry v. Payne,
217 Pa. 252, 66 A. 553, 11 L.R.A., N.S., 1173."
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 ...