42 C.J.S. Indemnity sec. 12, pp. 580-581; 27 Am.Jur. Indemnity, sec. 15, pp. 464-465; 175 A.L.R. sec. 19, pp. 34-37. The only case from this State which discusses this rule, which has been cited or which we have been able to find, is Buckeye Cotton Oil Co. v. Louisville Nashville R. Co., 24 F.2d 347, 348 (6th Cir.). In that case it is said:
This contract is, therefore, valid. Wabash R. Co. v. Ordelheide, 172 Mo. 436, 72 S.W. 684; Farmers Elevator Grain Co. v. Davis, 267 S.W. 393; Bates Coal Min. Mercantile Co. v. Mo. Pac. R. Co., 296 S.W. 1049; Buckeye Cotton Oil Co. v. Louisville Nashville R. Co., 24 F.2d 347; St. Clair v. Stevens, 123 F.2d 186; Santa Fe, P. P.R. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 33 S.Ct. 474; 57 L.Ed. 787. (2) Assuming without conceding that it is the general rule that the language of an indemnity contract must be so clear as to leave no room for reasonable doubt that indemnity was intended to be provided for damages resulting from the indemnitee's own acts, appellant says the language of the contract here meets the requirements of that assumed rule; because it says that respondent shall "save and hold harmless" appellant "from all loss, damage, injury or death caused by obstructions being closer to the `Industrial Track' than specified herein," and that respondent shall reimburse appellant for "all expenses caused by violation of any of the above covenants . . . including . . . money expended . . . in legal proceedings brought by claimants to recover damages for any matter connected with, incident to, or growing out of, this agreement," This language is so c
That parties may lawfully contract to indemnify and save harmless others from the latter's own acts of negligence seems well settled as being not against public policy. J.V. McNicholas Transfer Co. v. Pennsylvania R. Co., 6 Cir., 154 F.2d 265; Rice v. Pennsylvania R. Co., 2 Cir., 202 F.2d 861; Aluminum Co. of America v. Hully, 8 Cir., 200 F.2d 257, 261; Govero v. Standard Oil Co., 8 Cir., 192 F.2d 962; Buckeye Cotton Oil Co. v. Louisville N.R. Co., 6 Cir., 24 F.2d 347; Smoke v. Turner Const. Co., D.C., 54 F. Supp. 369; Russell, for Use of Continental Casualty Co. v. Shell Oil Co., 339 Ill. App. 168, 89 N.E.2d 415; 42 C.J.S., Indemnity, § 12. Since the indemnity contract is valid and since the third-party complaint alleges in substance that by reason of such contract the third-party defendant Utley has agreed to assume all responsibility for injuries to persons employed on or in connection with the work which was the subject of the contract, the third-party complaint sufficiently states a claim against Utley upon which relief can be granted.
An examination of this latter class of cases shows almost without exception that they contain broad and comprehensive language relating to exculpation from negligence. The following excerpts are illustrations of such language: "from and against all claims, suits, damages, costs, losses and expenses," National Transit Co. v. Davis, 3 Cir., 6 F.2d 729, 730, certiorari denied 269 U.S. 579, 46 S.Ct. 104, 70 L.Ed. 422; "hold * * * harmless from the claims and demands of any and all persons on account of any damages or injuries caused directly or indirectly by the existence, location, or condition of any structure", Buckeye Cotton Oil Co. v. Louisville N.R. Co., 6 Cir., 24 F.2d 347; "all risk of loss or damage to be borne by the contractor," Santa Fe P. P. Ry. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 33 S.Ct. 474, 475, 57 L.Ed. 787; "I further agree to save and hold * * * harmless of and from any and all loss, damage or injury to any person or persons whomsoever," Griffiths v. Henry Broderick, Inc., 27 Wn.2d 901, 182 P.2d 18, 19, 175 A.L.R. 1; to save harmless from "any and all liability to any person or persons", Kingsland v. Erie County Agri. Soc., 298 N.Y. 409, 84 N.E.2d 38, 50. We find no case in which a court has gone so far as to construe similar language, as used in the instant case, to relieve a party from the consequences of his own negligence.
See, also, Markham v. Duke Land Imp. Co. et al., 201 N.C. 117, 158 S.E. 852; St. Louis, etc., R. Co. v. Stewart et al. (Mo.Sup.) 187 S.W. 836; Buckeye Cotton Oil Co. v. Louisville N.R. Co. (C.C.A.) 24 F.2d 347. The location and use of the steps and the adjacent railroad tracks added greatly to the hazard of injury by passing trains.
In the opinion of the Court the language of that contract which has previously been cited is broad enough to make Foote liable for a portion of the recovery. The landmark case, or what appears to be the landmark case dealing with this subject is that of Buckeye Cotton Oil Co. v. Louisville Nashville Railroad Company, 6 Cir., 24 F.2d 347. In that case, the language in the contract between the railroad company and Buckeye had similarities to the language in the present contract.
Consistent with the stress of Oregon authorities cited by the Industry for the need of "unequivocal terms," we feel that the indemnity proviso here is clear, certain, and sufficiently broad and comprehensive, so as to warrant only the conclusion that the true intendment of the agreement was to save Southern Pacific harmless from its negligence under these circumstances. This conclusion is also supported by the following "spur track" cases where the indemnitor was contractually bound to the indemnitee for damages flowing from the latter's own negligence: Louisville N.R. Co. v. Atlantic Co., supra (19 S.E.2d at 370); Houston T.C.R. Co. v. Diamond Press Brick Co., supra (222 SW at 205); Terminal R. Ass'n. of St. Louis v. Ralston-Purina Co., 352 Mo 1013, 180 S.W.2d 693, 697 (1944); Buckeye Cotton Oil Co. v. Louisville N.R. Co., 24 F.2d 347 (6th Cir 1928); Gollick v. New York Central R. Co., 138 F. Supp. 384 (ED Mich 1956); Buffa v. General Motors Corp., supra ( 131 F. Supp. 478). See, also, other cases cited at 20 ALR2d 715 (1951) and Sup Serv, p 1252 (1957). The courts in the Buckeye, Gollick and Buffa cases, supra, have had little difficulty in awarding indemnification upon the same principles of interpretation.
Tennessee law permits a party to be contractually indemnified for its own negligence, see Kroger Co. v. Giem, 387 S.W.2d 620, 625 (Tenn. 1964) (applying rule from Buckeye Cotton Oil Co. v. Louisville N.R. Co., 24 F.2d 347, 348 (6th Cir. 1928)); however, as we explained in Amerco Marketing Co. v. Myers, 494 F.2d 904 (6th Cir. 1974), "[u]nder the law of Tennessee an indemnity agreement does not indemnify the indemnitee's own negligence unless it is clear and unambiguous from the language of the contract that this was the intention of the parties." Id. at 913 (citing Kroger Co. v. Giem, 387 S.W.2d 620 (Tenn. 1964) and Brogdon v. Southern Ry. Co., 384 F.2d 220 (6th Cir. 1967)); see also Eades v. Union Ry. Co., 396 F.2d 798, 799 (6th Cir. 1968).
Appellant argues that because the only negligence shown was that of the Railway employee in failing to lock back the gate, Springs Mills should not be liable absent specific language in the agreement providing for indemnification against the results of the Railway's own negligence. Spur track agreements such as the one in this case often provide for indemnification of the negligent acts of the indemnitee even in the absence of specific language mentioning such negligence.E. g., Atlantic Coast Line R. Co. v. Robertson, 214 F.2d 746 (4th Cir. 1944); Brown v. Seaboard Coast Line R. Co., 554 F.2d 1299 (5th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977); Buckeye Cotton Oil Co. v. Louisville N. R. Co., 24 F.2d 347 (6th Cir. 1928). The law requires only that the intention to do so clearly appear from the contract as a whole.
We note without deciding Foote's claim that Southern, by knowledge and acquiescence in Foote's clearance violation, waived its rights under paragraph 4. The District Judge allowed the partial recovery which he awarded Southern not under paragraph 4 but under paragraph 5. And paragraph 5 makes Foote responsible for indemnifying Southern for the negligence of Foote's employees. See Buckeye Cotton Oil Co. v. Louisville Nashville R.R., 24 F.2d 347 (C.A.6, 1928). Foote in turn argues that the basic suit is against Southern and that the jury award against Southern indicates that Southern is the only negligent party.