Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


November 22, 1961


The opinion of the court was delivered by: John E. Miller, Chief Judge.


This is an action by the plaintiff, Louisiana & Arkansas Railway Company, a Delaware corporation, against defendants, Nina N. Anthony and Graydon Anthony, partners, d/b/a Graydon Anthony Lumber Company, seeking to recover the amount which it had paid in settlement of a claim asserted against it by one Herman Cloudy, under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for which plaintiff claims the defendants are obligated to indemnify it.

The plaintiff in its complaint filed February 21, 1961, in addition to the usual allegations of corporate capacity and jurisdiction, alleged:

That on or about the 4th day of September 1941 the plaintiff and defendants entered into what is commonly referred to as an "Industry Track Agreement" for the construction of a 737-foot industrial spur to serve the defendants' lumber yard; that said contract contained provisions which fixed minimum clearances, liabilities of the parties, and indemnification of the railroad by the industry; that the same parties entered into a similar Industry Track Agreement on the 22nd day of May, 1957, by which the 737-foot industrial spur was extended an additional 185 feet.

That on the 15th day of May, 1959, at approximately 10:00 p.m., one of its trains was switching and coupling cars on the said industrial spur track, and that while engaged in the operation one Herman Cloudy, a brakeman employed by plaintiff and acting in the scope of his employment in the switching and coupling operation as such brakeman, was struck by an overhang of a shed and/or pole erected by the defendants in violation of the minimum clearances set forth in the Industry Track Agreements, which caused him to fall from the car on which he was riding into the path of its wheels, resulting in serious and permanent personal injuries to Cloudy.

That said Cloudy made a claim against it for the injuries sustained by him at the time and place above alleged under the provisions of the Federal Employers' Liability Act, under which the plaintiff did not have a meritorious defense, and would have been found liable to Cloudy for failure of its nondelegable duty to provide him with a safe place in which to work, even though the said Cloudy was injured as a direct result of the primary and active negligence of the defendants in violating the minimum clearance provisions of the Industry Track Agreements by erecting their loading shed and dock and allowing the same to remain in a close and dangerous proximity to the said industrial track.

That the plaintiff notified the defendants of the accident and injuries to Cloudy as well as his subsequent claim, and demanded that defendants assume liability for the payment of said claim on the ground that any negligence of plaintiff at said time and place with respect to said accident was secondary and passive in character, in that defendants' negligence in placing their loading shed in close and dangerous proximity to the spur track was the primary, active and direct cause of the accident and injuries suffered by Cloudy; that the defendants declined to accept responsibility for the handling and payment of said claim; that it entered into negotiations with Cloudy for the settlement of his claim, and that as a result of the negotiations Cloudy agreed to accept the sum of $35,700 in full and final settlement for such injuries. Under the terms of the settlement plaintiff also agreed to pay an additional sum of $2,018.50 due the Hempstead County Memorial Hospital for medical care rendered to Cloudy following the accident; that in addition thereto plaintiff expended approximately $1,500 as investigation and legal expenses in concluding the said Cloudy claim, making its expenses in connection with the handling and settlement of Cloudy's claim total $39,218.50. That at the time of concluding said settlement with said Cloudy and by agreement with defendants, plaintiff took a release from Cloudy, releasing the plaintiff and the defendants from any and all liability as a result of said accident, a true and correct copy of the release executed by Cloudy, marked Exhibit A, attached to and made a part of the complaint.

At the time of negotiating said settlement plaintiff again demanded that defendants admit their liability for said claim and pay the amounts above stated therefor, but defendants declined.

Plaintiff further alleged that the defendants were negligent in erecting their loading sheds in close and dangerous proximity to the industrial track; that defendants knew or by the exercise of ordinary care should have known that the loading sheds constituted a hazard and danger to plaintiff's employees engaged in switching operations at the time and place in question; that the defendants' negligence was a direct and proximate cause of the injuries suffered by Cloudy; and that the aforementioned negligence of the defendants was active, positive and primary and without which negligence said accident would not have occurred, and plaintiff would not have been exposed to litigation and liability to Cloudy. That the negligence, if any, of the plaintiff was passive, secondary and remote in character and that its liability to Cloudy for his said injuries arose solely under the provisions of the Federal Employers' Liability Act; that plaintiff was not equally at fault with defendants and plaintiff is entitled to be indemnified by defendants for all loss and damages suffered by it as a result of the claim of Herman Cloudy.

The defendants, in their answer filed March 9, 1961, and in their amended answer filed September 11, 1961, admitted:

That the parties entered into the "Industry Track Agreement" of September 4, 1941, for the construction of 671 feet, rather than 737 feet of industrial track as alleged by plaintiff, and that the same parties entered into a supplement agreement during the year 1944 for the construction of an additional 66 feet of industrial track, thus making a total of 737 feet; that the 1944 agreement contained similar provisions as the agreement of 1941 between the parties; that the agreement dated May 22, 1957, which called for the construction of an additional 185 feet of industrial track contained similar provisions as the 1941 agreement with reference to clearance liability and indemnity, and served to supplement the 1941 agreement.

That Herman Cloudy was employed as a brakeman by the plaintiff and was injured at the time and date alleged by the plaintiff while engaged in the course of said employment. However, the defendants deny that Cloudy was struck by a shed or overhang of the roof located or maintained by them upon or near the track.

The defendants further admitted that plaintiff notified them of the accident, injuries and resulting claim of Herman Cloudy; that the plaintiff demanded that the defendants assume liability; that they declined to accept responsibility for liability, and that the plaintiff paid the sums as alleged in the settlement of Herman Cloudy's claim.

Defendants deny that they negligently constructed and maintained a loading shed upon or near the railway right of way, or that such shed caused or contributed to the cause of injuries sustained by Herman Cloudy, and that the plaintiff and Herman Cloudy were free of negligence.

The defendants alleged to the contrary that any conditions complained of on or about the railway right of way were well known to the plaintiff and its employee, Herman Cloudy, both of whom assumed any and all liability arising from the known surrounding conditions. In this connection, the defendants alleged that the involved shed was constructed and in existence prior to the location of the involved spur track.

The defendants admitted that the 1941 and 1944 Industrial Track Agreements were in full force and effect at the time Herman Cloudy was injured. However, as a further defense they denied that the provisions of either of the Industrial Track Agreements imposed liability upon defendants for injuries sustained through the negligence of the plaintiff, and they denied that plaintiff was relieved of liability for its negligence by the terms of the contract.

The cause was tried to the court without a jury on September 20 and 21, 1961. At the conclusion of the testimony the case was submitted, and the attorneys for the parties were requested to file written briefs and arguments in support of their respective contentions. The briefs and arguments have been received and considered, along with all the testimony and exhibits thereto, and the court now makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact


The plaintiff, Louisiana and Arkansas Railway Company, is a corporation organized and existing under and by virtue of the laws of the State of Delaware with its principal place of business being in Shreveport, Louisiana.

The defendants, Nina N. and Graydon Anthony, are citizens of Arkansas and residents of Hope in Hempstead County, Arkansas, and are partners doing business under the name of Graydon Anthony Lumber Company, which has its principal place of business at Hope in Hempstead County, Arkansas.

The amount in controversy exceeds the sum of $10,000, exclusive of interest and costs.


The parties entered into an agreement entitled "Industrial Track Agreement" on October 15, 1941, plaintiff being referred to as carrier and the defendants being referred to as shipper, in which the carrier agreed to construct a spur track 671 feet long and to serve the shipper's premises with that track. The shipper agreed to perform all necessary grading and furnish all cross ties required for construction of the track; to pay the cost of work and material to be furnished by carrier, and to pay an annual sum in advance as annual interest rental on metal materials. Inter alia, the parties further agreed as follows:

    "5. * * * Shipper shall prevent anyone, except
  Carrier, as well as refrain from placing or keeping
  any obstruction closer vertically than 25 feet to
  nearest rail of Switch, or closer horizontally than 8
  1/2 feet to center line of Switch. Carrier's
  knowledge of such obstructions and its continued
  operation on Switch shall not be a waiver of this
  covenant, nor of Carrier's right to recover for such
  damages to persons or property as may result
  therefrom. * * *
    "6. * * * Shipper also agrees to indemnify and hold
  harmless Carrier from loss, damage or injury from any
  act or omission of Shipper, Shipper's employees or
  agents, to the person or property of the parties
  hereto and their employees and to the persons or
  property of any other person or corporation, while on
  or about Switch; and if any claim or liability other
  than from fire shall arise from joint or concurring
  negligence of both parties hereto it shall be borne
  by them equally.
    "10. * * * Either party may waive any default at
  any time of the other without affecting or impairing
  any rights arising from any subsequent
  default. * * *"


The parties entered into an agreement entitled "Supplement Agreement" during the year 1944, when the spur track was extended 66 feet to a total length of 737 feet. By the supplement agreement the parties agreed that the contract of October 15, 1941, was amended to include the extension of the said track and that said contract, as amended, shall be made the agreement between them.


The parties entered into an agreement entitled "Industry Track Agreement" on May 27, 1957, by which the carrier agreed to construct a 185-foot extension to the existing spur track, the shipper agreeing to pay the costs and the increased annual interest rental, and to furnish the cross ties, ballast and grading in the same manner as set out in the previous agreements. The provisions pertaining to clearances, liability and indemnity of the parties are similar to those contained in the earlier agreements. However, the specific terms of this agreement will not be set forth herein since undisputed testimony establishes that the injury occurred on the 66-foot extension of the spur track covered by the 1941 and 1944 agreements.


The parties operated under the terms of these contracts from the time the spur track was constructed to the time of the injury to Cloudy. After the construction of the first 671 feet of the spur track was completed in November 1941, the defendants constructed what is referred to in the testimony as the "planing mill building," which was completed prior to 1944. As constructed, this building violated the minimum clearances called for in the 1941 agreement both horizontally by the building line and vertically by the roof line.

In 1956 the spur track had to be "lined over," or moved over various distances from both the planing mill building and the adjoining truck loading shed due to the fact that the plaintiff carrier was using a larger size box car for loading at that time, and such box cars had been striking ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.