Appeal from the Circuit Court of Cook County; the Hon. CHARLES
R. BARRETT, Judge, presiding. Reversed and remanded with
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
A suit had been brought by Levi M. Sayles against the Chicago, Rock Island and Pacific Railroad Company (hereafter referred to as the Railroad) and two of its agents. Sayles was an employee of the Sherwin-Williams Paint Company (hereafter referred to as the Industry). His original suit had been settled upon the payment to him of $65,000 by the Railroad. The Railroad had a third-party suit against the Industry, based upon an indemnity contract entered into between the Railroad and the Industry. The trial court found in favor of the Industry, and from that judgment this appeal is taken.
In order to decide the case it is necessary to interpret the indemnity contract. The contract was entered into on December 15, 1950, and it related "to the ownership, maintenance, operation and use" of side tracks at the Industry's plant on Chicago's south side. Section 1 of the contract provided the following:
"Said tracks to be owned, maintained and operated hereunder are shown by solid red and yellow lines on the blue print marked Exhibit `A', which is attached hereto and made a part hereof. Said tracks have been designated by numbers and the lengths of those portions colored in red and the lengths of those portions colored in yellow and the total length of each of said tracks is also shown on said Exhibit `A'. Said tracks shall, for convenience, be hereinafter referred to as `track.'" (Emphasis supplied.)
Section 5 in pertinent part is as follows:
"The Industry also agrees to indemnify and hold harmless the Railroad for loss, damage, or injury from any act or omission of the Industry, its employees or agents, to the person or property of the parties hereto and their employees and to the person or property of any other person or corporation, while on or about said track, and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.
"The Industry shall not be obligated to indemnify or hold harmless the Railroad for loss or liability caused from the sole negligence of the Railroad, except fire as set forth above."
Section 6 of the contract is as follows:
"The Industry shall not erect or allow to be erected, any building, structure or fixture, or place material or obstruction of any kind, or make any excavation without giving a clearance of at least eight (8) feet from the center line of said track and head room of not less than twenty-one (21) feet six (6) inches above the top of the rails. The faces or edges of freight platforms not higher than four (4) feet above the top of the nearest rail of said track shall not exceed five (5) feet eight (8) inches from the center line of said track except when such platforms have horizontal clearances of eight (8) feet from the center line of said track. All windows, doors, or gates shall be of the sliding type, or shall open toward the inside of the building or enclosure when such building or enclosure is so located that the said windows, doors or gates, if opening outward, would, when opened, swing closer than eight (8) feet to the center line of said track. If by statute or order of competent public authority a greater or other clearance shall be required than provided in this section, then the Industry shall immediately comply with such order or statute. The Industry for itself, its successors and assigns assumes all responsibility for and agrees to protect, indemnify and save harmless the Railroad and the successors, lessees and assigns thereof, from and against all loss, damage and expense caused by, or arising out of, or contributed to by the erection or presence of any building structure or fixture, or placing, or presence of material or obstruction of any kind or making, or presence of any excavation at any place prohibited by this section." (Emphasis supplied.)
Four years after the contract was signed, and while it was in full force, an accident occurred on the side tracks at the Industry's plant. Sayles was injured and filed a complaint against the Railroad and its agents on April 19, 1956. On May 22, 1956, a third-party complaint was filed by the Railroad against the Industry. The original complaint filed by Sayles against the Railroad was settled for $65,000. Both parties to this appeal have stipulated that the amount of the settlement is reasonable.
In the third-party complaint as amended, the Railroad alleges that the Industry placed or caused to be present a tank car which was less than eight feet from the center line of the track upon which a train was operating, and that the Industry by so doing obstructed the track upon which the train was operating, in violation of Section 6 of the indemnity contract, and so caused the tank car to come into collision with the Railroad's train, thereby causing the injuries to the plaintiff. Both the track on which the tank car was placed and the track on which the Railroad was operating its train were owned and maintained by the Industry.
The Railroad relied on the indemnity contract of December 15, 1950, and prayed that the Railroad shall have judgment against the Industry for any sum which may be recovered by Sayles against the Railroad. The Railroad also prayed that it be allowed costs.
The third-party complaint of the Railroad was answered by the Industry, in which answer the Industry denied that Section 6 of the indemnity contract is applicable, but alleged that Section 5 of the agreement is applicable. The answer denies that a tank car on the track constitutes an obstruction under proper construction of all the pertinent portions of the indemnity agreement, and alleges that the collision resulted from ...