Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
This is an appeal from a judgment against the Pennsylvania Railroad for personal injuries suffered by Harry G. Seaboldt, the plaintiff, and against the Railroad in its action against Thompson Mahogany Company (Thompson), thirdparty defendant.
The plaintiff alleged injury from a back strain suffered when he was endeavoring to open a gate which led into Thompson's premises. The Railroad had a siding into Thompson's yard. This siding was protected by a gate which was kept locked. When railroad cars were taken to or from the siding it was, of course, necessary to unlock the gate and close it again after the operation was completed. The Railroad claims that Thompson is responsible for any damages the plaintiff recovers because of an indemnity agreement between Thompson and the Railroad.
The provisions of this contract on which the Railroad's claim is made are two. First that Thompson promised to maintain the sidetrack and all appurtenances.*fn1 Also that Thompson promised "to indemnify and hold harmless the Railroad company for loss, damage or injury from any act or omission of the Industry * * *."
What is the obligation of Thompson under this contract? In this case the jury found for the plaintiff against the Railroad under the F.E.L.A. It also found that Thompson was not negligent toward the plaintiff and was not liable to the Railroad under any common-law theory.*fn2 Is Thompson liable under this contract to indemnify the Railroad even if the jury has found that the Railroad was itself negligent?
Counsel cite a great many decisions in the discussion of this indemnity question. The meaning of words in a contract is nearly always the subject of much argument. Sometimes a word or two will produce a series of consequences. For instance, when a man indorses a negotiable instrument in blank the indorser assumes many liabilities and the indorsee acquires many rights. A simple signature does it. Sometimes, too, the attainment of a given result depends upon the exact form of words used. A typical example is the necessity of the word "heirs" to create a fee simple at common law. In other instances, usage of a particular trade may describe in shorthand what people in the trade mean by a given word or phrase. Who would know the difference between "prime" and "choice" beef unless he had been instructed by an expert in the trade? When a word or a phrase has been made the subject of a series of rulings by a court in a given state, we may then conclude that the use of those words accomplishes the result which the line of decisions indicate. So, if we had a series of cases dealing with a contract like the one before us and the court had ruled that under those terms the promisor was or was not liable for certain results, we could take that series of rulings as the law governing the effect of those words. We have no such situation here,*fn3 and, therefore, determine for ourselves the effect of the words used by the contracting parties.
It is to be pointed out that we are not now dealing with passive or active negligence nor any question of indemnity or contribution between tortfeasors.*fn4 This is solely a question of contractual liability assumed by Thompson when Thompson and the Railroad made their contract at the time of the installation of this siding.
Since, as indicated later in this opinion, the question of the Railroad's liability must go back for a new trial, the contract is construed on the basis of the legal rights of the parties should a jury again find the Railroad liable. We express no opinion concerning the outcome of the new trial.
We think the contract is broad enough to make Thompson liable for the consequences of this accident if the jury should find the Railroad liable. We rely upon the language which Thompson agreed to in entering into this contract. It promised to maintain the siding. It also promised to hold the Railroad harmless for damage from any act or omission. If this gate was in a state of disrepair, that disrepair is certainly due to an omission on Thompson's part to "maintain" all the appurtenances. We think this is the agreement Thompson made. It does not rest upon any tort liability of either party but simply, as a matter of contract, creates the obligation on Thompson as above indicated.
The effect of the words in the contract is not a matter for jury interpretation and the trial judge correctly assumed responsibility for deciding this part of the case. He followed the right procedure although we disagree with his conclusion. Thompson is liable under the contract to indemnify the Railroad if, indeed, the plaintiff recovers at the new trial.
New Trial in F.E.L.A. Action.
At the pretrial stage of this case District Judge Clary directed the lawyers for the respective parties herein "to immediately exchange all medical information and photographs * * *."
Toward the end of the trial it developed that the plaintiff sometime prior to his accident had consulted professionally a chiropractor named Walter.*fn5 The point about the plaintiff's knowledge of this chiropractor is well and tersely stated by ...