Opinion
August 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order of a Special Term of the Supreme Court, Saratoga County. Defendant paper company is the owner of a switch track connected with the plaintiff railroad's line for the service of the defendant's plant. An accident occurred on the defendant's track involving the operation of plaintiff's equipment. Both parties were sued, and this action by the railroad seeks a declaratory judgment that the defendant paper company be required to conduct the defense of the negligence action for plaintiff and pay any resulting judgment. The court at Special Term granted summary judgment for the railroad; the question on appeal is whether defendant shows any triable issue of fact. The maintenance of the switch track and the resulting use of it by the railroad's equipment were the subject of a written agreement by the predecessors of the parties. It was provided that the paper company should assume all responsibility for injury or damage resulting from the use of the track without regard to any blame or fault of the railroad. A single exception was made. This was "an accident produced by the employees of said Railway Company, wilfully disobeying the express orders of said Railway Company." Defendant's papers show that there is a triable issue of fact whether the accident resulted from disobedience by the railroad's employees of rules of the railroad. Whether such disobedience was "wilful", if it in fact occurred, ordinarily would also be a triable issue, since it would depend on the construction of the circumstances surrounding the act of disobedience. But the railroad shows by affidavit that an "express order" and a rule are something quite different in railroad practice, and that an "express order" is a specific direction by a person in authority to a particular train crew or particular operation. Without aid of such interpretation, this is the ordinary meaning which we would derive from the words themselves as they appear in the agreement. Defendant does not show any triable issue on what "express orders" mean in railroad practice, or any issue as to what they may possibly have meant to the parties using them in the agreement differing from their usual sense. In this state of the record defendant fails to show a triable issue of fact. Order unanimously affirmed, with $10 costs.