Booth-Kelly Lumber Co. v. Southern Pacific Co. Southern Pacific Co. v. Booth-Kelly Lumber Co

This was an action by Southern Pacific Company, a Delaware Corporation, against Booth-Kelly Lumber Company, an Oregon Corporation, seeking to recover sums which it had paid to settle a judgment against it by one Mack D. Powers, and for which Southern Pacific Company asserted Booth-Kelly Lumber Company was obliged to indemnify it.

On February 8, 1945, Southern Pacific Company-was moving a train of cars over an industrial track, constructed pursuant to an agreement between it and Booth-Kelly, over the latter’s premises at Springfield, Oregon. Booth-Kelly’s servants had left a wood cart so near the track that the nearest corner of the cart was only 42 inches from the nearest rail, notwithstanding a covenant in the agreement that “structures, material, poles or other obstructions” on the premises should provide a “minimum side clearance of six feet” from the nearest rail. As Mack D. Powers, brakeman on the train, then undertook to climb out of the door of the side-door caboose, he was caught between the caboose and the wood cart.

When Powers brought suit against Southern Pacific to recover damages for his injuries under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq.,…