customer's sidetrack when the accident occurred.
The IC also relies on a line of cases in which the indemnity provisions were much more broad than that at issue in this case. In Seymour v. Chicago and Northwestern Railway Co., 255 Iowa 780, 124 N.W.2d 157, 159 (1963), for example, the agreement provided indemnification for any loss, damage, or injury "arising from or in connection with the existence, construction, maintenance, repair, renewal, reconstruction, operation, use or removal" of the customer's facility. The Iowa Supreme Court determined that this provision covered an accident which occurred at an intersection off the customer's property. The accident presumably had been caused because railroad cars situated on a passing track had blocked the driver's view, resulting in a collision between his car and a moving train. Noting that the phrase "in connection with" should be broadly construed, the court held that because the railroad cars had been placed on the passing track to be unloaded by the defendant at its facility, the incident arose "in connection with" the operation and use of the facility and was therefore covered by the indemnity provision. Id. at 160.
Similarly, in Chicago and North Western Transportation Co. v. V & R Sawmill, Inc., 501 F. Supp. 278, 280 (D.S.D. 1980), an employee of the defendant was injured while operating a front-end loader a short distance from the area covered by a lease and licensing agreement. The lease agreement provided for indemnification by the lessee for any injury suffered "while on or about the leased premises," and a separate license agreement extended the indemnification obligation to injuries incurred "in connection with" the use or operation of the licensed facility. Id. at 279-80. The court held that the license agreement clearly applied in these circumstances because the work the plaintiff had been performing clearly had arisen "in connection with the operation of the licensed facility." Id. at 281. With respect to the more narrow language in the lease agreement, the court cited to a number of decisions where courts had limited the reach of the phrase "on or about" to the area specifically covered by a particular agreement, noting that it did not quarrel with those decisions. Id. at 280. However, the court then concluded, without further explanation, that "the indemnification clause contained in the lease agreement was intended to apply to incidents occurring as a direct result of the operation of the chip loading facility, even though such occurrence happened outside the confines of the leased premises." Id.
Despite the alternative holding of the court in V & R Sawmill, this Court concludes that the phrase "on or about" a designated sidetrack is much more narrow than a clause requiring indemnification for any loss or injury incurred "in connection with" the operation or use of a designated facility. The "in connection with" language imposes no physical limitation on the location of the injury and presumably could be triggered even where the injury is incurred a substantial distance from the facility, for even in that situation, the injury could broadly relate to the operation or use of the specified facility. The "on or about" language contained in the instant agreement, however, plainly imposes a physical limitation on the location of the injury. The loss or injury need not have been incurred on the Tabor Grain sidetracks (see, e.g., Baker v. Northeastern Industrial Park, Inc., 73 A.D.2d 753, 423 N.Y.S.2d 308, 311-12 (1979)), but it must bear some relationship to one of those tracks in addition to its relationship to the operation or use of the facility in general. Had the parties chosen to do so, they could have agreed to a provision providing indemnity for any injury suffered in connection with the use or operation of the Tabor Grain facility. Such a provision may have encompassed the injury alleged by Gaines here. But the parties did not agree to such a broad indemnity provision. Instead, Tabor Grain agreed to provide indemnification only for injuries occurring "on or about" designated sidetracks. Under that provision, there must be a relationship between the injury and one of the sidetracks referenced in the agreements before the indemnity provision may be invoked. That necessary relationship is lacking here.
As the Wisconsin Supreme Court held in Huck, the phrase "on or about" extends to "the obvious field of peril from readily foreseeable movement of cars" on the designated track. Huck, 5 Wis. 2d at 129, 92 N.W.2d at 352. The train from which plaintiff was thrown was never on the sidetrack covered by the parties' agreements and, therefore, it never moved on that track. The Tabor Grain sidetrack bore no relation to plaintiff's accident other than that the IC train had presumably intended to switch to that sidetrack instead of proceeding down the adjacent IC track. This Court holds that the adjacent IC track was not within the obvious field of peril from the movement of the railroad's cars on the Tabor Grain sidetracks. Any relationship between plaintiff's injury and the Tabor Grain sidetracks is too tenuous for invocation of Tabor Grain's indemnity obligation. The term "on or about the Track" as used in the indemnity provisions of the sidetrack agreements cannot be expanded to encompass an accident occurring on or about an adjacent track not covered by the agreements. Cf. Barilaro v. Consolidated Rail Corp., 876 F.2d 260, 261 (1st Cir. 1989) (sidetrack agreement specifically applies to sidetrack owned by railroad and sidetrack owned by railroad's customer, but not to the railroad's lead tracks); Atlantic Coast Line R. Co. v. Robertson, 214 F.2d 746, 752 (4th Cir. 1954) (indemnity agreement applied to all fifteen tracks within customer's facility, not only to certain loading and unloading tracks as suggested by the indemnitor). The Court concludes that plaintiff was not injured "while on or about the Track" as that phrase is used in the sidetrack agreements. Accordingly, the indemnity provision of those agreements has no application to the instant case.
For the foregoing reasons, Tabor Grain's motion for summary judgment on count I of the IC's amended third-party complaint is granted. Judgment is entered in favor of Tabor Grain on that count. The parties are directed to appear at a status hearing on June 4, 1992 at 9:30 a.m.
ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE
DATED: May 27, 1992