The suit is prosecuted by appellant as administratrix of the Estate of Claude Baker, deceased husband, also as next friend of their three minor children, claiming liability against appellee Railroad Company for his death which occurred August 20, 1952. From a jury trial and finding of contributory negligence on part of said Claude Baker, a defendant's judgment resulted, and this appeal; the trial court rejecting plaintiff's assertion of rights pursuant to 45 U.S.C.A. § 51 et seq., Federal Employers' Liability Act. Defendant Railroad had made W.H. Nichols & Company, Inc., a party hereto, and has appealed from the trial court's adverse ruling on its cross-action for indemnity against Nichols Company in event of liability to plaintiffs; details of which phase of the litigation will later appear.
On April 1, 1952 the Railroad and Nichols Company had entered into a written contract for grouting work between specified mile posts (pumping of sand and cement into roadbed under pressure for strengthening and stabilization). The Nichols Company was engaged in performance of this contract and Claude Baker, deceased, was on the job as one of its employees when struck by defendant's eastbound train. This contract is therefore quoted in full, together with supplement thereto of later date:
"This Agreement, executed in duplicate April 1, 1952 by and between The Texas and Pacific Railway Company, herein called Carrier, first party, and W.H. Nichols & Company, Inc., Dallas, Texas, herein called Contractor, second party; Witnesseth
"For and in consideration of the keeping by each of the parties hereto of the several covenants and agreements hereinafter set forth, it is hereby mutually agreed as follows:
"1. Contractor shall within thirty (30) days after the execution of this contract begin and diligently prosecute the work described herein until completed in a first class and workmanlike manner and to the satisfaction of the Carrier's Chief Engineer or his duly authorized representative. The work to be done by the Contractor shall consist of:
"Furnishing labor, equipment and water for grouting roadbed on Carrier's double track main line at locations between Mile Post 215, near Dallas, and Mile Post 230, near Arlington, Texas, as specified by Carrier's Chief Engineer or his representative. Area to be grouted consists of a total or approximately 42,040 track feet.
"2. For the faithful performance of the work by the Contractor, The Carrier shall make and Contractor shall accept payment at prices or rates as follows: $0.10 per linear track foot of roadbed grouted, plus $0.30 per cubic foot of sand pumped into roadbed measured dry. Payment hereunder is to be made promptly upon completion and acceptance of the work, if completed within 30 days; otherwise, payment shall be made at the end of each 30 days as the work progresses. Contractor, if called upon, shall furnish Carrier written evidence that he has paid in full all amounts that may be due by him to any and all persons who may perform labor or furnish material or supplies in connection with said work; and in the event he fails to furnish satisfactory written evidence thereof carrier may withhold payment pending receipt of such written evidence.
"As one of the considerations hereof Carrier, insofar as it lawfully may do so shall transport free to the site of the work and, after completion of the work therefrom not exceeding an equal distance, via solely the line of Railway of Carrier, Contractor, Officers, men, teams and equipment actually engaged on or in connection with the work, but excluding fuel, supplies and explosives; and all such transportation shall be at Contractor's risk in case of accident or damage.
"3. In the performance of any of the work or services herein provided, or any part thereof, Contractor shall occupy the status of an independent contractor, and shall not be subject to the detailed supervision and direction of Carrier, but responsible to Carrier only for the final results in the accomplishment of such work or services.
"4. Contractor shall and does hereby assume full responsibility for and agrees to defend, indemnify and hold the Carrier harmless from any and all liability, damage and expense which the Carrier may incur or suffer by reason of (a) any breach by Contract of any of the covenants herein contained, (b) injury to or death of any persons, or loss, damage or destruction of or delay to any property, arising out of, resulting from or incident to the performance or nonperformance of any of the services and obligations herein assumed by Contractor and (c) transportation of persons and property by Carrier in conformity with paragraph 2 hereof.
"5. Contractor assumes any and all liability for and agrees to indemnify Carrier against any and all taxes, contributions and comparable payments imposed by or arising under any municipal, State or Federal law, order or regulation upon or incident to the payment by Contractor of wages, compensation or other forms of remuneration to persons in his employ, performing the services provided for herein, or any part thereof. * * *"
"W.H. Nichols & Company, Inc., 3015 Grand Avenue, ...