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Defendant contractor sought review of a judgment of the Superior Court of Los Angeles County (Califiornia), which found in favor of plaintiff railway in its action for damages for breach of a contract relating to a private railway crossing.

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An agreement between the railway and the contractor concerning a railroad crossing provided that the contractor would indemnify the railway against all claims resulting from use of the crossing and would provide a human flagman when the crossing was in use. When no flagman was present, a truck driver opened the gate and was struck by a train, resulting in injuries to at least one passenger. In the passenger’s action against the railway and others, the driver and the railway were found jointly negligent. The railway paid half the judgment and brought suit against the contractor for breach of the provision requiring a flagman. The contractor claimed that the railway’s negligence barred it from seeking indemnification under the contract. The court affirmed the trial court’s judgment in favor of the railway. Because indemnification was the clearly expressed intention of the parties, the court declined to apply the doctrine that the failure of parties to a contract to refer expressly to negligence evidenced their intention not to provide for indemnity for an indemnitee’s negligent acts. The railway did the contractor a favor, and in return it promised to carry the risk.


The court held that the contractor breached its promises to provide a human flagman at the crossing and to pay for any losses to the railway from use of the crossing. The court affirmed the judgment in favor of the railway.