ATLANTIC COAST LINE R. CO.
v.
NORFOLK SOUTHERN RY. CO.
No. 89.
Supreme Court of North Carolina.
October 8, 1952.*607 F. S. Spruill, Rocky Mount, for plaintiff, appellant.
Gardner, Connor & Lee, Wilson, for defendant, appellee.
JOHNSON, Justice.
The single question presented by this appeal is: Does the contract between the plaintiff and the defendant make the defendant liable for damage sustained by plaintiff because of a broken rail, notwithstanding the rail broke through no fault of the defendant?
The plaintiff contends that the contract makes the defendant an insurer and imposes absolute liability. The plaintiff lays stress on the part of paragraph Fourth of the contract wherein the defendant agrees that it "will at its own cost and expense, at all times maintain said crossing in good condition, and will from time to time make all necessary repairs and renewals thereto." The plaintiff insists that this language creates an absolute covenant, an unconditional promise, that the defendant at all times will maintain the crossing in good condition, irrespective of inevitable accident, latent defect, or act of God.
The plaintiff also points to paragraph Ninth and urges that by its terms the defendant specifically covenants to indemnify the plaintiff against all claims for damage which plaintiff may suffer because of the "omissions or neglect" of the defendant in maintaining the crossing in good repair as required by paragraph Fourth; that is to *608 say, as plaintiff contends, for omitting to keep the crossing in good repair at all times, at all hazards.
However, when the excerpts from paragraph Fourth and the provisions of paragraph Ninth, relied on by the plaintiff to support its contention, are considered in context and interpreted with the rest of the contract, as is the rule in cases like this one, 12 Am.Jur., Contracts, Sec. 241; Gilbert v. Waccamaw Shingle Co., 167 N.C. 286, 83 S.E. 337, it is apparent that these sections take on different meaning than as urged by the plaintiff.
Here it is to be noted that there is more to paragraph Fourth than the excerpt which the plaintiff cites and relies on as creating an absolute covenant to maintain the crossing in good condition. This paragraph further provides that if in the opinion of the plaintiff the crossing should require renewals or repairs, the defendant, on written request of the plaintiff, will proceed to make them, but if not so made within ten days after notice, then the plaintiff itself may make the renewals or repairs. Moreover, it is provided in this paragraph that the defendant shall make no repairs whatsoever without first giving written notice to the plaintiff at least twenty-four hours before entering upon such work, and that in making any such repairs, the defendant shall comply with the requirements of the plaintiff as to the time and manner of doing the work. Also, paragraph Fourth recognizes that the parties contemplated that emergencies might arise making it impossible for the defendant to give the required notices and make the repairs under the contract. As to this, it is observed that paragraph Fourth provides that in case of emergency, the plaintiff may proceed to make the repairs and charge the costs to the defendant.
It thus appears that since the defendant's covenant to maintain the crossing is conditioned upon notice to and approval of the plaintiff as to methods of repair, and so forth, it may not be construed as making the defendant an insurer that the crossing will be maintained in good condition at all times, at all hazards.
And it is clearly evident that the indemnity covenant contained in paragraph Ninth, by which the defendant agrees to indemnify the plaintiff against damage caused by "omissions or neglect" to repair and maintain the crossing, is referable to and must be interpreted in connection with the provisions of paragraph Fourth. When this is done, it is manifest that the provisions of the contract do not impose absolute liability upon the defendant.
In this view of the case it seems unnecessary to discuss the distinctions and refinements of meaning placed by lexicographers on the words "omissions" and "neglect", emphasized by the plaintiff. It may be conceded on this record (1) that the expression "omissions or neglect" is not synonymous with negligence; (2) that "neglect" is synonymous with "negligence", and (3) that "omission" is synonymous with "failure."
Conceding all this, the record here shows no damage to the plaintiff arising out of any omission of the defendant respecting maintenance or repair of the crossing within the meaning of the contract sued on.
And certainly there is nothing on the record tending to show that the rail broke as a result of an omission of the defendant. Here we have an entirely unexplained broken rail. It was on the plaintiff's northbound track. This means that none of the defendant's trains ever passed over the particular rail. From all that appears in the facts agreed, it is just as logical that the rail broke because it was struck by the plaintiff's train as it is to say it broke because of an omission on the part of the defendant.
The facts in this case, under a contextual interpretation of the controlling provisions of the contract, do not come within the doctrine that one who makes a positive agreement to do a lawful act is not ordinarily absolved from liability for failure to do it by a subsequent impossibility of performance caused by an unavoidable accident, 12 Am.Jur.Contracts, Sec. 363. Therefore, we deem it unnecessary to discuss the authorities cited and discussed in the briefs on this principle of law.
*609 It follows from what we have said that Judge Frizzelle correctly held that the plaintiff is not entitled to recover. The judgment below is affirmed.