(concurring in part, dissenting in part):
I concur in that part of the majority opinion affirming the judgment of the court below as to the inapplicability of the Safety Appliance Act to Scherff’s claim.
I dissent, however, from the conclusion that Northern’s indemnity contract is not, as applied to the facts of this case, void as against public policy. The majority recognizes the established doctrine that public policy forbids common carriers to contract for indemnity against their own tort liability when they are performing either a public or a quasi-public duty such as that owing to a shipper, passenger or servant. Yet the majority holds that this public policy has no application to the instant case because when the Railroad entered into this leasing agreement with Northern it was contracting as a private party and not as a common carrier. By thus focusing on the Railroad's posture as a lessor in its contractual relationship with *31Northern, the majority avoids the public policy against such contracts. In my opinion, the majority’s focus is misplaced. If we are to effectuate this public policy meaningfully, we should focus on the posture of the Railroad at the time the accident occurs. Clearly, in this case, the Railroad was functioning as a common carrier when the accident occurred, and the employee Scherff was injured as a result of the Railroad’s negligence while acting in that capacity. The fact that the Railroad was acting as a lessor when it leased its right-of-way to Northern should be immaterial if one result of that lease is to interfere with the Railroad’s performance of its duties as a common carrier. In a recent case, the Indiana Appellate Court, en banc, discerned this distinction very well. Pennsylvania R. R. v. Kent, 136 Ind.App. 551, 198 N.E.2d 615, 14 A.L.R.3d 434 (1964). The Kent case involved a railroad indemnity agreement wherein the Railroad leased some of its property adjacent to its tracks and provided cars on the track for the loading and shipping of the lessee’s goods. The lessee had agreed to indemnify the Railroad for all loss which the Railroad might suffer resulting from the injury to the lessee’s employees who were at the time of the injury upon or about the cars or tracks in connection with the lessee’s business. An employee of the lessee was injured as a result of the Railroad’s negligence while working on a railroad car that was standing on the tracks adjacent to the leased premises. The Railroad, in seeking to enforce the indemnity agreement, argued that it was acting as a private party when it executed the lease and not as a common carrier. The court refused to accept his argument, stating, “We are not persuaded * * * that the appellant railroad company in the instant case, by the simple device of the execution of a real estate contract, could change the character of its operation from that of a common carrier to that of a private carrier.” 198 N.E.2d at 14 A.L.R.3d at 442-43. The court went on to say that “to permit such a carrier to avoid its obligation and duty to exercise due care on the ground that in the particular instance it allegedly contracted as a private party * * * would be * * * the equivalent of lending our sanction and approval to the evasion of its legal responsibilities, and would amount to complete acquittance of the appellant’s liability for its own torts.” 198 N.E.2d at 621, 14 A.L.R.3d at 443-44. I agree with this reasoning and I think it should be applied to the instant case.
I also dissent from the majority’s conclusion that Northern’s indemnity contract with Shamrock does not apply to this case. The majority correctly states that “Northern’s contention is based upon the proposition that ‘Shamrock’s indemnity obligation is conditioned solely upon whether or not plaintiff’s injuries were alleged or claimed to have been incidental to any of the work of Shamrock.’ ” The majority rejects this contention because “no authority is cited by Northern to sustain such an interpretation of an indemnity agreement and none can be found because it borders on the absurdity to contend that a mere allegation of a claim by Railroad against Northern, without more, is sufficient to trigger liability on Shamrock.”
I do not think Northern needs to cite any more authority to enforce its contract with Shamrock than the language of the contract itself. In clear language that contract provided that Shamrock
shall * * * indemnify, protect and save Northern * * * harmless from and against any and all actions or causes of action, claims, demands, liabilities, loss, damage, injury, cost or expense of whatever kind or nature, including costs of litigation, attorney fees and reasonable expenses in connection therewith, brought or presented by any person, firm, or corporation whatsoever, (including, but not limited to, third parties, employees of Northern, employees of * * * [Shamrock] or of any subcontractor, and *32their dependents or personal representatives) for injuries to or the death of any person, or damage or loss of property alleged or claimed to have been caused by, or to have arisen out of or in connection with, or to be incidental to any of the work * * * whether or not such loss, injury or damage shall be valid or groundless, and [Shamrock] * * * agrees that in case Northern * * * shall be made Defendant in any suit * * * wherein it is sought to recover from Northern * * * damages on account of * * * personal injuries * * * [Shamrock] shall be bound and obligated to reimburse Northern * * * in the amount expended by Northern in paying any judgment rendered therein, together with all reasonable attorney’s fees incurred by Northern.
The majority additionally declines to apply Shamrock’s indemnity contract to this case because “the agreement [does not] provide that Shamrock would indemnify Northern for any liability that might arise out of a contract entered into between Northern and other parties.” It is true that the agreement does not, in so many words, cover contracts entered into between Northern and other parties. But the agreement does cover “all actions * * * of whatever kind or nature * * * brought by any person, firm or corporation whatsoever, (including * * * third parties * * *).” I think this language clearly would cover an action against Northern for indemnity against a personal injury claim.