Southern Pacific Co. v. Pittsburgh-Des Moines Steel Co.

[810]

DRAPER, P. J.

Appellant Southern Pacific Company was named defendant in an action brought by one Bambrough to recover damages for bodily injuries sustained in a grade crossing accident. The railroad cross-complained against respondent steel company, seeking indemnity under a 1947 written agreement.

This agreement recites that respondent, called “licensee,” owns land adjoining the proposed crossing and desires a private road crossing of appellant licensor’s tracks. The agreement permits respondent licensee to construct such a crossing, and requires it to “maintain and keep said crossing in good repair, ’ ’ and to keep it1 ‘ and the flange ways thereof free and clear of all rubbish and debris.” No assignment or transfer of the agreement is permitted, and licensee shall not permit its use “by the public or by any person or persons except Licensee, [its] guests, tenants, employees and persons having business with Licensee, it being expressly understood and agreed that said crossing is a private one and is not intended for public use. ’ ’

Paragraph 7 provides “Licensee shall and hereby expressly agrees to indemnify and save harmless the Licensor . . . from and against any and all loss, damage, injury, cost and expense of every kind and nature, from any cause whatsoever, resulting directly or indirectly from the maintenance, presence or use of said crossing. ’ ’

Upon answering the cross-complaint, respondent moved for summary judgment. The only supporting declaration set up the claim of Bambrough by quoting the charging allegations of his complaint, which are that appellant “so negligently, recklessly and unlawfully controlled, managed, constructed, operated and maintained” the crossing, and “so negligently, recklessly and unlawfully drove, operated, controlled and maintained” its engine as to cause the collision of an engine and a vehicle driven by Bambrough.

Over appellant’s opposition the motion for summary judgment was granted, the cross-complaint dismissed, and judgment entered in favor of respondent.

“An indemnity clause phrased in general terms will not be interpreted ... to provide indemnity for consequences resulting from the indemnitee’s own actively negligent acts”