Atchison, T. & SF Railway Co. v. Lan Franco

WOOD, P. J.

The Atchison, Topeka and Santa Fe Railway Company (referred to as Santa Fe) has appealed from an order dismissing its first amended cross-complaint (seeking implied indemnity), after cross-defendants’ demurrers thereto were sustained without leave to amend.

The complaint alleged in part that while plaintiff, Mrs. Hoke, was a fare-paying passenger on a train owned and negligently operated by defendant Santa Fe, the train and a truck, owned and negligently operated by Bernard Lan Franco, collided at a railroad grade crossing at State College Boulevard in Anaheim; and as a proximate result thereof plaintiff received bodily injuries. Plaintiff also alleged that, at the time of the collision, Bernard Lan Franco was an employee of defendant Whitehead Construction Company. Plaintiff sought to recover damages for such injuries from defendant Santa Fe, defendant Whitehead Construction Company, and defendant Fred Lan Franco, the administrator of the estate of Bernard Lan Franco, deceased.

Defendant Santa Fe filed a first amended cross-complaint wherein it sought implied indemnity from cross-defendants Whitehead Construction Company (referred to as Whitehead) and Fred Lan Franco, administrator of the estate of Bernard Lan Franco deceased. Demurrers of the cross-defendants were sustained without leave to amend.

The first amended cross-complaint alleges two causes of action. The allegations of the first cause of action are in substance as follows: Cross-defendant Fred Lan Franco is the administrator of the estate of Bernard Lan Franco, deceased. Cross-complainant duly filed a creditor’s claim in the estate proceedings. At all times mentioned, Bernard Lan Franco was the owner and operator of a dump truck, was an employee of Whitehead, and was acting within the scope of such employ

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ment; cross-complainant owned railway tracks which crossed State College Boulevard, a four-lane public highway in Orange County, at a grade crossing; cross-complainant owned and maintained signal facilities and related equipment in proximity to the crossing; cross-complainant owned a train, known as the “San Diegan,” which consisted of two diesel engines and eight passenger cars; and plaintiff was a passenger on the train. On December 22, 1965, about 12 :55 p.m., cross-complainant, through its duly authorized agents and employees, was operating the train “at or about 65MPH in a southeasterly direction toward and over this grade crossing. ’ ’ At said time and place, cross-defendants so negligently operated said truck in a northerly direction along State College Boulevard and onto the grade crossing, as to cause the truck to collide with the train. Cross-complainant’s engineer, exercising due care, applied the brakes of the train at or immediately prior to the collision, but due to cross-defendants’ negligence in entering the intersection there was insufficient time to stop the train prior to the collision. The aforesaid negligence of cross-defendants was “active.” In this action, if any negligence is proved against cross-complainant, said negligence will be “passive.” Any cause of action by plaintiff against cross-complainant is based on the duty to exercise the highest degree of care for her safety owed to her as a paying passenger of cross-complainant. As a proximate result of said negligence of cross-defendants, plaintiff sustained injuries and has filed the complaint to recover damages from cross-complainant. Under the circumstances, cross-defendants are “primarily liable” for the injuries sustained by plaintiff. If plaintiff recovers judgment against cross-complainant, it will only be by virtue of the relationship between plaintiff, as a paying passenger, and cross-complainant, as a common carrier, and the fact that cross-complainant would have been found to have been “secondarily liable” for plaintiff’s injuries. Under the circumstances, cross-complainant is entitled to indemnity from cross-defendants for the amount of any judgment rendered herein against cross-complainant, or for the amount of any settlement of plaintiff’s claims, as well as for the amount of reasonable attorneys’ fees and costs incurred in defending this action. Cross-complainant has demanded that cross-defendants defend the principal action and indemnify cross-complainant for any damages resulting