Appeal by third party defendant Anheuser-Busch, Inc. from orders and judgments of the United States District Court for the Southern District of New York, William C. Conner, Judge, in an action for personal injuries under the Federal Employers Liability Act, which resulted in a jury verdict awarding $150,000 to the plaintiff against Penn Central Company and an award by the district court of indemnity in the same amount to Penn Central Company against Anheuser-Busch, Inc.
Lumbard, Mansfield and Timbers, Circuit Judges.
Plaintiff, Mike Batchkowsky, formerly employed as a brakeman by Penn Central Company ("Penn Central"), brought this action against it under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq., for personal injuries sustained as a result of an accident in the course of his employment, which occurred on a railroad siding on premises of third party defendant Anheuser-Busch, Inc. ("Busch"), allegedly because of the railroad's negligence. The action was tried before William C. Conner, Judge, and a jury, which awarded the plaintiff $200,000, less $50,000 for contributory negligence, or a net of $150,000. Penn Central filed a claim over against Busch for indemnification pursuant to an agreement between them, which was tried simultaneously to Judge Conner without a jury and resulted in an award of the full amount in favor of Penn Central against Busch. The latter appeals, claiming that the trial judge erred in holding that the agreement entitled Penn Central to indemnity against Busch and that in any event the award to the plaintiff should have been set aside as grossly excessive. We affirm.
The accident occurred on November 8, 1968, at a railroad sidetrack at the Busch plant in Newark, New Jersey, as a Penn Central freight train was backing into the plant. As the train's brakeman, plaintiff had the duty of guiding the engineer in the process of backing the train into the building. Under conditions of normal clearance plaintiff's practice would be to ride the sideladder of one of the railroad cars, relaying signals between the conductor and the engineer. This practice could not be followed on the side track leading into the Busch building, however, for the reason that the space between the platform and railroad cars, some four inches, was too close. Plaintiff therefore stationed himself in a recessed area inside the doorway of the Busch building at the start of the loading platform, whence he could see and pass signals between the conductor inside the building and the engineer in his locomotive outside. As the freight cars were being slowly backed into the building plaintiff, facing the conductor, was struck successively by two handles protruding from a refrigerator car door, spun around and thrown to the ground; he suffered a severe sprain of the cervical area of the spine, sprain of the shoulder, laceration of the forehead, a probable fractured rib, and a low back sprain.
In February 1969 plaintiff commenced this action against Penn Central under FELA, claiming that his injuries were caused by Penn Central's negligence in failing in its nondelegable duty to furnish him with a reasonably safe place in which to work. Penn Central, defending principally on the ground that the accident was due to plaintiff's negligence, also filed a third party complaint against Busch for indemnification under the terms of an agreement between Busch and Penn Central for the latter's construction on Busch's property of the sidetrack that later became the scene of the accident. The sidetrack agreement, as originally executed on February 24, 1950, contained mutual indemnification clauses. However, when Penn Central found that Busch, in order to build an additional loading platform, proposed to reduce the lateral clearance from eight feet (measured from the center of the rails to the nearest obstruction) to six feet, one inch, it first obtained from Busch a supplemental agreement, dated November 16, 1950, containing the following indemnification clause:
"3. The Industry hereby releases and waives all right or alleged right at any time to ask for or demand damages from the Railroad Company, or its employes, that have occurred, or may occur, to the said Industry and the said structure, including loss of service thereof, caused by or growing out of the operation of the engines, equipment and cars of the Railroad Company upon the side-track adjoining said structure by reason of the 6 feet 1 inch side clearances as shown upon the print of plan attached hereto; and the Industry further covenants and agrees to indemnify and save harmless the Railroad Company and its employes from and against all loss, cost, damage and expense and claims and demands therefor caused by or attributable to the operation by the Railroad Company of its engines, equipment and cars upon the said side-track under and adjoining said structure, or injury to or damage caused thereto or thereby, and whether to the property of the Railroad Company or to property in its possession, control or custody, to its employes, patrons or licensees, to the employes, patrons or licensees of the Industry, or to persons or property of others who may seek to hold the Railroad Company liable therefor, and whether attributable in whole or in part to the said 6 feet 1 inch clearances."
Following the jury's verdict, Judge Conner, construing the agreement under the law of New Jersey (where the property was located and the accident occurred), held that the agreement obligated Busch to indemnify Penn Central for plaintiff's injuries.
We agree with the parties and the district court that the construction of the Penn Central-Busch indemnity agreement, as supplemented by their agreement of November 16, 1970, is governed by New Jersey law. See Haag v. Barnes, 9 N.Y.2d 554, 216 N.Y.S.2d 65, 175 N.E.2d 441 (1961). New Jersey courts, paralleling the course taken by New York law, look to the parties' intent and, where that is debatable or ambiguous, view such indemnity clauses "realistically as efforts by businessmen to allocate as between them the cost or expense of risk of accidents apt to arise out of construction projects on a fairly predictable basis," Buscaglia v. Owens Corning Fiberglas, 68 N.J. Super. 508, 172 A.2d 703, 707 (App. Div. 1961), affd., 36 N.J. 532, 178 A.2d 208 (1962). See Polit v. Curtiss Wright Corp., 64 N.J. Super. 437, 166 A.2d 387 (App. Div. 1960); Cozzi v. Owens Corning Fiber Glass Corp., 63 N.J. Super. 117, 164 A.2d 69 (App. Div. 1960); Stern v. Larocca, 49 N.J. Super. 496, 140 A.2d 403 (App. Div. 1958).
Applying these principles, the supplemental indemnity agreement clearly obligated Busch to indemnify Penn Central for the injuries caused to plaintiff as a result of Penn Central's operation of its equipment on the sidetrack adjoining the loading platform on Busch's premises. Busch argues that the agreement was intended to indemnify the railroad only for accidents that might occur "under and adjoining" the structure (loading platform) and be attributable to the 6 feet 1 inch clearance. We disagree. This stilted interpretation would rewrite the agreement and defeat the parties' intent. Busch agreed plainly and unqualifiedly to indemnify Penn Central from damage "caused by or attributable to the operation by [Penn Central] of its engines, equipment and cars upon the side-track under and adjoining said structure [loading platform]." The latter phrase clearly refers to the location where the equipment would be operated, not that where the damage or injury might occur. But even under Busch's narrow interpretation the word "adjoining" would include the location where plaintiff was struck, which was immediately next to the end of the loading platform.
Furthermore, although the reduction of the clearance to 6 feet 1 inch was the occasion for Penn Central's obtaining indemnification, the indemnity was not limited to accidents attributable solely to the reduced clearance but governed "whether attributable in whole or in part to the said 6 feet 1 inch clearance." Even under Busch's narrow interpretation Penn Central was protected, since the accident was due, at least in part, to the fact that because of the reduced clearance plaintiff was unable to follow his customary practice of relaying signals from the side ladder of one of the cars, which would have avoided contact with door handles. Indeed one of Penn Central's purposes in obtaining such broad indemnification may have been to protect itself against any increased risk of personal injuries accompanying its operation under the cramped conditions created by Busch's construction of the platform with less than the usual clearance. In any event, such prudent business judgment does not offend public policy. Cozzi v. Owens Corning Fiber Glass Corp., supra, 164 A.2d at 75.
Turning to Busch's contention that the judgment in favor of plaintiff should be reversed because of the excessiveness of the $200,000 verdict, the grounds upon which we are permitted to take such action are rather narrow. Where, as here, the trial judge, denying a motion for a new trial on grounds of excessiveness, has permitted a verdict to stand, we may order a new trial only when the verdict is irrational or so high as to shock the judicial conscience, rendering it an abuse of discretion not to set it aside. That we personally would have awarded a lesser sum or, if we had been the trial judge, have set the verdict aside, is insufficient. Grunenthal v. Long Island Railroad Co., 393 U.S. 156, 159, 21 L. Ed. 2d 309, 89 S. Ct. 331 (1969); Dagnello v. Long Island Railroad Co., 289 F.2d 797, 806 (1961).
Relying principally upon our recent decision in DeMauro v. Central Gulf S.S. Corp. v. International Terminal Operating Co., Inc., 514 F.2d 403 (2d Cir. 1975) Busch argues that the $200,000 verdict, even reduced by 25% on account of plaintiff's contributory negligence, was grossly excessive. DeMauro, while similar to the extent that it involved a $200,000 award for personal injuries, is otherwise clearly distinguishable. Indeed, it illustrates the error frequently encountered in attempting to equate one personal injury award with another. Aside from the rather strict standard by which we are bound, see Grunenthal v. Long Island Railroad Co., supra; Dagnello v. Long Island Railroad Co., supra, the differentiating facts in each case with respect to pain and ...