(dissenting).
I am unable to agree with the majority ■opinion.
The critical language in this indemnity agreement, and the only language relied upon by the plaintiff, Southern Pacific Company, for recovery, is this:
“Licensee shall and hereby expressly agrees to indemnify and save harmless the Licensor and its lessor from and against any and all loss, damage, injury, cost and expense of every kind and nature, from any cause whatsoever, resulting directly or indirectly from the maintenance, presence or use of said crossing. Licensee expressly waives any and all claims arising from death or injury to Licensee.”
This is not the same language construed hy this court in Graver Tank & Manufacturing Co. v. Fluor Corp., Ltd., 4 Ariz.App. 476, 421 P.2d 909 (1967). That case was ■concerned with a contract which read in part:
“ TO. CONTRACTOR does hereby indemnify and save harmless FLUOR and OWNER, or either from all claims, demands, causes of action or suits of whatever nature arising out of the services, labor, equipment and materials furnished by CONTRACTOR. * * *
“Tl. CONTRACTOR assumes entire responsibility and liability for all losses, expenses, damages, demands and claims in connection with or arising out of any injury, or alleged injury, (including death) or damage, or alleged damage to persons or property sustained or alleged to have been sustained in connection with or to have arisen out of the performance of the WORK by CONTRACTOR * * * including losses, expenses or damages sustained by FLUOR or OWNER, and herein indemnifies and holds harmless FLUOR or OWNER, * * * from any and all such losses, expenses, damages, demands and claims, and agrees to defend any suit or action brought against them, * * * based on any such alleged injury or damage, and to pay all damages, costs and expenses, including attorney’s fees, in connection therewith or resulting therefrom. ’ ” 4 Ariz.App. at 477, 421 P.2d at 910.
The language of the Fluor contract focuses the mind of the reader immediately upon “ * * * claims, demands, causes of action or suits * * * ” against the indem-nitee, which in turn brings up the connotation that the indemnitee may be interested in being protected against liability for its own negligence. The Fluor contract is for a comparatively narrow time span and between parties with apparently unfettered bargaining powers.
In dissenting, I can almost rest my case upon the following statement of law from the majority opinion:
“Although agreements to idemnify for the indemnitee’s negligence are not favorites of the law, Union Pac. Railroad Co. v. El Paso Natural Gas Co., 17 Utah 2d 255, 408 P.2d 910 (1965), they are generally enforceable when the parties have *575equality of bargaining power and their intent as to such indemnification is manifestly plain and unequivocal. Colorado Milling & Elev. Co. v. Chicago R. I. & P. R. Co., 382 F.2d 834 (10th Cir. 1967); Jordan v. Eastern Transit & Storage Co., 266 N.C. 156, 146 S.E.2d 43 (1966); Hall v. Sinclair Refining Co., 242 N.C. 707, 89 S.E.2d 396 (1955); See also Annot, 175 A.L.R. 8, §§ 6-10.” (Emphasis mine.)
If there ever was a contract that was not made with “equality of bargaining power,” this is it An inter-state railroad, such as the plaintiff, sits high on a throne of economic and legal power when a small landowner petitions it for a private road crossing. In order to encourage the development of this country, railroads were granted by governmental subsidy1 rights-of-way which cut a swath across this state and many others. While this grant was undoubtedly in the best interests of the country, for those owning property in the immediate vicinity of the railroad, particularly when their holdings were divided by this right-of-way, there was created a situation of economic subservience. Many cattle ranches, as well as farms, are economically hamstrung unless they can be operated as a unit. If the railroad may, as the majority opinion states, “ * * * impose such conditions it chooses in granting permission” for a private road crossing, then it is indeed in almost a dictatorial position as far as these private interests are concerned.
The majority opinion suggests that there are two possible ways to construe this contract — by following the view of the Fluor decision or applying the alternative “express negligence” doctrine.
I do not believe we have a choice between two opposing doctrines in construing this contract. We must determine, from the words used in this integrated contract, in the light of the circumstances giving rise to the contract, the intent of the parties. Rental Development Corp. v. Rubenstein Const. Co., 96 Ariz. 133, 393 P.2d 144 (1964); and see Arizona Land Title & Trust Co., v. Safeway Stores, Inc., 6 Ariz. App. 52, 57, 429 P.2d 686, 691 (1967).
This is a contract intended to last for an indefinite period into the future. In this particular case, the indemnity agreement was given some thirty years prior to this accident. The possibilities of damage at this crossing arising out of the railroad’s negligence are enormous. One can visualize whole trains derailed, with tens or even hundreds of persons killed and maimed.
The majority opinion takes the view that this indemnity agreement extends to damage caused by the railroad’s own negligence indefinitely into the future, regardless of changes in the character of the crossing, and regardless of the amount of liability that might be caused through the negligence of the licensee. A court should not reach the conclusion that such onerous burdens were intended if there is a less stringent construction equally available. Paine v. Copper Belle Mining Co., 13 Ariz. 406, 413, 114 P. 964, 967 (1911).
In the interpretation of the majority opinion, the language in the contract “Licensee expressly waives any and all claims arising from death or injury to Licensee” becomes meaningless, for, if the preceding language already indemnifies against the negligence of the Southern Pacific Company, then there is no cause of action to waive. In case of ambiguity, the construction should be placed upon statutory language which gives some meaning to all language of the contract. Kintner v. Wolfe, 102 Ariz. 164, 426 P.2d 798 (1967).
*576Another secondary rule of construction leads us in the same direction. This is a contract prepared by the railroad, and, if other rules of construction fail to give a clear answer, remaining ambiguities should be resolved against the drafter of the instrument. Hamberlin v. Townsend, 76 Ariz. 191, 261 P.2d 1003 (1953). An application of these standard rules of construction leads me to believe that it is less than clear that this contract was intended to indemnify Southern Pacific Company against its own negligence. Because of the public policy which holds this type of contract in disfavor, this is enough to defeat the contention of the plaintiff here.
I believe this court should follow the opinion of Southern Pac. Co. v. Layman, 173 Or. 275, 145 P.2d 295 (1944), which interprets the identical language, and, as I believe, in substantially the same situation as this, to exclude indemnity for damage caused by the negligence of the indemnitee. I have no quarrel with the opinion cited by the majority, Southern Pacific Co. v. Morrison-Knudsen Co., 216 Or. 398, 338 P.2d 665 (1959). This later Oregon opinion takes pains, 338 P.2d at 671-673, to distinguish, not repudiate Layman, and to me the two cases are consistent and make a valid distinction between a simple crossing easement, such as in the case at bar, and a spur track agreement, in which substantial obligations are being undertaken by the indem-nitee, and greater privileges given the in-demnitor.
The appellant’s reliance upon Atchison, T. & S. F. Ry. Co. v. James Stewart Co., 246 Cal.App.2d 821, 55 Cal.Rptr. 316 (1966), is not well taken. In that case, the licensee had agreed to provide the flagman for the particular crossing, and the failure to provide a flagman was a proximate cause of the accident. That decision would be pertinent to our case only if, in the California case, the railroad had been providing the flagman at the time of the accident, and negligence of the flagman caused the accident. There is a provision in this contract that the licensee will maintain this crossing. However, this is not a suit for breach of that agreement. Conceivably, the Southern Pacific Company may be able to recover under this agreement for the cost of maintenance which it has supplied, if the maintenance agreement was breached by the licensee. But there has been no showing of this. For all that this record discloses, the railroad has completely waived its right to insist that the licensee maintain this crossing.
This judgment should be affirmed.
. See Great Northern Ry. Co. v. United States, 315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836 (1942), and State of Wyoming v. Udall, 379 F.2d 635 (10th Cir. 1967), discussing the legislative history of the “General Railroad Right of Way Act,” 43 U.S.C.A. § 934 et seq., and previous legislation. See also Cleveland and Powell, Railroad Promotion and Capitalization in the United States (Longmans, Green & Co., 1909), esp. pp. 242-256, and Clark, Then Came the Railroads: The Century from Steam to Diesel in the Southwest (University of Oklahoma Press, 1958), esp. pp. 73-83.