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NORFOLK & W. RY. CO. v. HARDINGER TRANSFER CO.

March 29, 1976

NORFOLK & WESTERN RAILWAY COMPANY
v.
HARDINGER TRANSFER COMPANY, INC. and Federal Insurance Company



The opinion of the court was delivered by: KNOX

 The defendant Hardinger Transfer Company (Hardinger) contracted with the plaintiff Norfolk & Western Railway Company (N&W) to load truck trailers onto flat cars as part of their so-called "piggyback" operations in which loaded truck trailers are transported by rail and then driven to the point of destination. The trailers are loaded onto the flat cars by backing the trailer up a ramp leading from ground level to the level of the flat car. The driver of the tractor continues to back up, and the trailer, if aligned, is guided by means of "rub rails" on the flat car deck which confine and retain the trailer as if it were in a trough. Built-in space limitations -- possibly as little as two inches on each side of the trailer -- prevent any real attempt to maneuver the trailer once it is confined between the guides, and the trailer can only be pushed in more or less a straight path.

 On July 14, 1971, Richard Thomas at Erie, Pennsylvania, was engaged in backing up trailers onto flat cars in the course of his employment with Hardinger when, although within the confines provided by the rub rails, the trailer came in contact with a grab iron *fn1" on the flat car. The trailer was traveling at a slow speed, but the jury could find it bent the grab iron to some extent and the trailer could not be backed further until the grab iron was straightened.

 Raymond Capela and Robert Hathy, employees of the railroad, undertook the task of straightening the grab iron. Grab irons were frequently bent, and both Capela and Hathy were experienced in straightening them out. They employed one of the customary methods: using a crow bar to act as a lever to bend the grab iron back to its normal position. Capela and Hathy placed the crow bar in a horizontal position and pushed or lunged against it while on the flat car. Thomas meanwhile, pulled on the bar from below. On the second lunge or jerk against the bar, the bolts on the grab iron gave way and Capela tumbled over the side of the car where he landed on the ground, possibly landing on a metal bridge plate. He sustained serious back injuries.

 Believing Capela to have a valid claim against the railroad under the Federal Employers' Liability Act (FELA) and the Safety Appliance Act, N&W settled with Capela for $50,000 plus $1,689.95 of medical expenses. This suit is brought to recover to recover these amounts from Hardinger based on common law indemnity and contractual indemnity. The court directed a verdict on the common law claim in favor of the defendant, and allowed the jury to consider only the contractual indemnity question. *fn2" The jury found in favor of the N&W and against Hardinger in the full amount of N&W's payment to Capela ($51,689.95). Hardinger has moved for judgment NOV or alternatively for a new trial. *fn3"

 Hardinger alleges some twenty grounds in support of its motions, plus an additional ground in a supplemental motion filed 54 days after the jury verdict and entry of judgment. We will not consider this latter ground as it is untimely under Rule 59 FRCP, which requires that a motion for new trial shall be served not more than 10 days after the entry of judgment.

 Our concern in this case is with paragraph 8 of the agreement, and particularly with 8(c). *fn4" This paragraph makes Hardinger liable for any injuries to railroad employees caused "directly or indirectly, by the acts or omissions of [Hardinger]".

 At first blush this provision appears to be very broad and to cover any sort of injury or damage caused "directly or indirectly", no matter how remote and regardless of intervening or superseding causes. However, the law disfavors agreements by which a party is indemnified against his own negligence, and a contractual provision will not be so interpreted in the absence of a clear, precise and unequivocal expression to that effect. Gimbel Brothers, Inc. v. William H. Vanderherchen, Inc., 468 F.2d 597 (3d Cir. 1972); Westinghouse Electric Corp. v. G. C. Murphy Co., 425 Pa. 166, 228 A.2d 656 (1967); Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 436, 192 A.2d 682, 688 (1963). The rationale for this rule of law is stated in Perry v. Payne, 217 Pa. 252, 262, 66 A. 553, 557 (1907):

 
"We think it clear, on reason and authority, that a contract of indemnity against personal injuries, should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The liability on such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it." *fn5"

 This burden of clear expression is even greater where, as here, the party drafting the agreement seeks its enforcement. Gimbel Brothers, supra; Pa. RR. Co. v. Erie Avenue Warehouse Co., 302 F.2d 843 (3d Cir. 1962).

 Pennsylvania courts have distinguished between situations where the indemnity clause explicitly refers to liability arising from a party's own negligence and those which provide for indemnity against "all liability" or "all loss". Where the indemnity clause does not specifically mention liability or injuries arising from the indemnitee's own negligence, the provision will not be construed to cover the situation despite broad, all inclusive language that might suggest otherwise. Dilks, supra, and Gimbel Brothers, supra, are typical examples.

 We must, of course, look to the intent of the parties making the indemnity agreement. Where this intent is debatable or ambiguous, the indemnity clause should be viewed realistically as an effort by businessmen to allocate between them the costs and risk of accidents apt to arise. ...


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