Appendix — Chicago, Rock Island & Pacific Railroad v. Chicago & North Western Railway Co.

APPENDIX A.

_ Opinion. of United States Court of Appeals °

For the Eighth Circuit.

{August 10, 1960. ] >

Pad

Before Sanborn, Matthes and Blackmun, Circuit Judges.

Matthes, Cireuit Judge.

_Appeals in this diversity action grow out of an acci-

dent which occurred on February 5, 1955, when B. L.

Kleppe, an employee of Chicago & Papacy Western Rail-

way Company, hereinag¢ter called ‘*North Western’, was

injured while attempting to release a hand brake on a

railroad car which was owned by Chicago, Rock Island &

Pacific Railroad Company, hereinafter -called ** Rock

Island.”’ North Western was able to settle Kleppe’s claim

for $70,000, and thereafter it “brought the instant action

against Rock Island for indemnity vor contribution. The

action was tried before the court, resulting in a finding

denying North Western indemnity but allowing contri-

bution in the amount of $35,000, or one- half of the settle-

ment amount. Judgme nt was accordingly entered: Both

parties have appealed; North Western claims it is entitled

to fujl indemnity of $70,000; Rock Island claims North

Western is not entitle] to »ny amount. |

Inasmuch as the relevant facts are detailed with preci- .

sion in the exhaustive opinion of the Honorable Heurtry

Graven, the trial judge, reported in 179 F. Supp. 35, no

useful purpose will be served by another full recitation of

the facts. .

“In summary, it may be stated that the railroad tracks of

North Western and Rock Island passed through Goldtield,

ra... | eet,

Jowa, intersecting each other at right angles, and a curved

transfer or interchange track connected the two lines. At

about 9:00 A. M., February 5, 1955, Rock Island placed

five of its cars on the interchange track, all destined for

points on North Western lines. At Tso A. M. on the

same day, one of North Western's trains,’ with instrue-

tions to pick up the cars, arvived at Goldfield sand way-

bills were obtained from the Rock Island station. The

hand brakes had been set on four of the cars, including the

most northerly. one, which was designated as **Rock Island

262261,"" and Kleppe, as North Western’s brakeman, a>

cended te a platform on this car for the purp®se of releas-

ing the brake. Being unable to release the brake while

the ear was standing still, he signalled another employee

to move the ears. As the cars were placed in motion,

Kleppe continued to pull on the brake handle and acter

the ear had moved 15 to 20 feet, the’ brake handle and

part of the brake housing came loose and Kleppe was

thrown to the ground ‘and seriously injured, From. the

evidence it appears that the brake was defective, in that

parts of its mechanism were tnissing. |

When Kleppe made claim against North Western, de-

fense of the’ claim was tendered to, but refused by, Rock

Island, and that company refused to participate in the -

negotiations or settlement of the claim, which was effected

without suit being filed. |

We are first confronted with the contention that the

Codes of Car Service & Interchange Rules, promulgated

by the Association of American Railroads, and to whieli

North Western and Rock Island were parties, operated a

a waiver of, or bar to, any claim for indemnity or. cet

tribution. Portions of the rules relied upon by Nerth

Western are set out verbatim in the opinion of the tria:

court. 179 FL Supp. at pp. 40, 41. In’ particular, Rook

a ee

Island religs upon Rule 1 (a) which relates to “Care of

Foreign Freight Cars** and ‘Car Service" Rule 7.) °

After giving ‘areful” consideration to this defense, it

was disallowed, the trial court holding that ‘the rules

bed upon by the defendant do not operate as a waiver

of or a bar té any claim for indemnity or contribution

that the plaintiff might have against the defendant arising

out af the ynishap. It is the view of the Court that the

most that appears from the evidence is that many rail-

roads heretofore had observed the protocol of not making

claims against other railroads of the nature here ‘in-

volved." 172 FL Supp., pp. 41-42. We are in accord with

this finding and conclusion.

There can be little dispute With respect to the pertinent

legal principle. Generally, parties sui juris may waive a

legal right, including the right of indemnity or contribu-

tion, provided of course that such an agreement is not

contrary to public policy or void because of legality. See

and compare, Govero v. Standard Oil Co., 8 Cir. 192 F.2d

2, where Judge Sanborn, in speaking for the Court.

stated at pp. G64, 965:

ee,

' Appa ently. there are three separate codes of rules, “Code of

Car Service Rules”; “Code of Per Diem Rules” and “Code of Rules

Govermng the Conditionget, and Repairs to. Freight and Passenger

Cars” Rule Potap of the latter provides:

ach railroad is tesponsible for the condition of all cars

omits line, and must give te all equal care as te inspection

and Jubricamon” "Car Sérvice™ Rule 7 provides:

“Cars shall be considered as vaving been delivered to a con-

necting railroad when placed upon the track agreed upon and

designated] as the interchange track for such deliveries, ac-

compamed or preceded, by proper data for forwarding and to

insure delivery, and aceepr by the car inspector of the ree”

cening road.

- Unless otherwise arranged’ between the roads ‘concerne:!

the wWeeiving road shall be respottsible for the cars, contents

and per diem after receipt of the proper data for fi rwarding

an! te insure delivery, and until they have been accepted by

I< Mspector or returned te the delivering road.”

— 30 —

‘We know of no public policy which would pre-

vent a landlord and a tenant from agreeing that the

tenant should assunie, and agree to indemnify the land...

lord against, the risk of loss, damages and injuries

‘occurring on the premises during the term of the lease,

whether due to the negligence of the landlord or not.”

~~

See also, Aluminum Co. of America v. Hully, 8 (ir, -\W)

F. 2d 257, 262, and 17 C. J. S.. Contracts, § 262, p. G45.

The fatal weakness of Rock Island's contention becomes

apparent on examination of the Car Service & Interchange

Rules upon which it so strenuously relies. We, are unable

to detect any language therein which, even by inference,

could-be construed as constituting a Waiver of, or bar to,

the legal right of one railroad member to seek iidemnity

er egntribution from another member. There is no refer-

ence of any kind in the rules to indemnity or contribution.

In our view, the rules are solely designed to govern the

eare and maintenance of cars belonging to one carrier while

in possession of another.*

We cannot agree with Rock Island that the language in

Rule 1 (a) that ‘*(e)ach railroad, is responsible for the

condition of alf cars on its line, and must give té all equal

eare as to inspection and lubrication,’’ or in Rule ¢ that

‘*(u)nless otherwise arranged between the roads concerned

the receiving road shall be responsible for the cars * °°."

insulates Rock Island from a elaim for indemnity or con.

2 In Chicago, Rock Island & Pacific Railroad Co. @. Ht allsamis

ct al. & Cir., 243 F. 2d 397, cert. den. 355, U. S. 835, an acuon 1

volving the same parties hereto, Rock Island sought indemnity of

contribution from North Western and Union Pacific Railroad Com-

pany, apparently relying upen similar Association Rules. Winle the

facts are dissimilar, this observation at. p. 405 is relevant here

“The only agreements between the parties were as to traffic matters

such as agreements relating to interchange, per diem, ete. Neo rete

gence whatsoever is made im such agreements as to indemnity of ams

kind. let alone for personal injury ‘or indemnification against the

consequences of another f ilread’s neghgence”

tribution. If the railroad companies which are parties to

the Code’of Rules desire to waive this legal right effee-

tively, they should have no difficulty in clearly expressing

such intent, and until they do, efforts to have such a ag

sion read into the rnles by judicial interpretation will,

all likelihood, be unavailing.

We now proceed to consider the merits. of North West-

ern’s claim to indemnity or contribution. Briefly, Rock

[sland*s position is that it was not liable to Kleppe. North

Western contends that Rock Island was primarily liable,

or, at the very least, equally liable for Kleppe's injuries.

In view of these diametrically opposed positions, it may

he desirable to consider the nature of these remedies of

indemnity and contribution, Both actions are premised on

a finding that two or more parties have been guilty of

actionable wrong thereby bringing injury or damage to

some third person.. The Supreme Court, of Iowa, in Best:

V. Yerkes, 247 lowa. S00, 77 N. W. 2d 23, 27, 2s, stated:

“The right to indemnity, or contribution, er

actionable negligence of both parties tuward a third party.’

(Emphasis . supplied.) At common law, when one of. the

gnilty parties was made to bear the entire damage, no

relief was afforded him as against his co-tort-feasors, upon

the theory. that. courts would not adjust rights between

Wrongdoers. However, Lowa, as other Jurisdictions, recog:

nized exceptions to this general rule by way of allowing

indemnity, or full recovery of the amount expended, when

it could be shown. that the one bearing the full loss w as not

guilty of actual wrong, but was caused to be constructive ly

lable in some respect. Such exceptions were-noted in Best

Vv. Yerkes, supra, where the lowa court stated at p. 27:

While stating the general rule, this court bas reco.

nized and applied many exceptions. This, in cases of

derivative liability, where a principal or employer has

- been held negligent only because of some aét of his

agent or employe, he has been allowed to recover in:

an Dae

‘We know of no public policy which would pre-

venta landlord and a tenant from agreeing that the

‘tenant should assume, and agree to.indeninify the land.

lord against, the risk of loss, damages and injuries

oceurring on the premises during the term of the lease,

whether due to the negligence of the landlord or not”,

on also, Aluminum Co. of America v.-Hully, & 2K)

2d 257, 262, and 17 C.J. S., Contracts, § 262, p. ve

The fatal weakness of Rock Is Jand's contention oceans

apparent on examination of the Car Service & Intere ‘hanger

Rules upon which it so strenuously relies. We are unable

to detect any language therein which, even by inference.

could be construed as Coustituting a waiver of, or bar to,

the legal right of One railroad member to seek ae

or contribution from another member, There is no refer-

ence of any kind in the rules.to indemnity or contribution.

In our view, the rtiles are solély designed to govern the

“are and, maintenance of cars belonging to ore carrier: while

in possession of another.*

We cannot agree with Rock Island that the language i

Rule 1 (a) that ‘(e)ach railroad is responsible for the

condition of all cars on its line, and must give to all eqna!

caré as to inspection and lubrication,’* or in Rule 7 that

**(u)nthess otherwise arranged between the ake concerted

the receiving road shall be responsible for the ears * °°.

insulates Rock Island from a claim for indemnity or cor

2 In Chicago, Rock Island & Pacific Kuilroad Co. a. UWiiams

et al... & Cir.. 245 F. 2d 397, cert. dens 355 U.S. 835, an action

volving the sare parties hereto, Rock Iland souyht indemnity of

contribution from«North Western and Union Pacific Kailroad Com-

pany. apparently relying upen similar Association Rules. - While whe

facts are discimilar, this observation at p. 403 is rekevant here

“The only agreements between the parties were as fo trafic mot

such as agreements relating to interchange, per diem, ete, Ny rere

ence whatsoever is made in such agreements as to madenmmity ot

alone for personal injury or indemnitic ation “against te

Kind. let

e ni. of another ratlroad’s negligence

«

jt

tribution. If the railroad companies which are parties to

the Code of Rules desire to waive this legal right: effee-

tively, they should have no difficulty in clearly expressing

such intent, and until they do, efforts to have such a provi-

sion read into the rules by judicial interpretation will in

all likelihood, be unavailing.

We now proceed to consider the merits of North West-

ern’s claim to indemnity or contribution. Briefly, Rock

Island*s position is that it was not liable to Kleppe. North

Western contends that Rock Island was primarily eliable,

or, at the very least, equally liable for Kleppe's injuries.

In view of these diametrically opposed positions, it) may

he desirable to consider the nature of these: remedies of

indemnity and contribution. Both actions are premised on

® finding that two or more parties have been guilty of

actionable wrong thereby bringing injury or damage to

some third person. The Supreme Court of lpwa, in Best

v. Yerkes, 247 Iowa 800, 77 N. W. 2d 23, 27, 28, stated:

“The right to indemnity, or contribution, presupposes

~ actionable negligence of both parties toward a third party."

(Emphasis supplied.) At common law, when one of the

guilty parties was made to bear the entire damage, no

relief was afforded hint as against his co-tort feasors, upon

the theary that courts would not adjust rights between

Wrongdoers, However, Jowa, as other jurisdictions, recor

hized exceptions to this general rule by wey of allowing

indemnity, or full recovery of the arhount expended, when

-tteould he shown that the one bearing the full loss was not

guilty of actual wrong, but was caused to be constructively

lable in some respeet. Such exceptions were noted in Best

V. Yerkes, supra, where the Towa court stated at p. 20:

“While stating the general tule, this court has recog:

nized and applied many exceptions. Thus, in enses of

derivative liability, where a principal o# employer has

been held negligent only because of same act of his

agent or employe, he has been allowed to recover: in-

; — 32 —

demnity from the one guilty of the actual negligent act

Jciting cases}. So in workman's COMpeNsatlen cusess

so-called ‘safe premises or property” cases, city street

and sidewalk cases, cases involving building contrac-

tors and subcontractors, cases in which an employe is

directed to do an act not openly and apparently wrong,

and cases involving the right to indemnity as between

the supplier of a defective product which does harm

and the merchant who stocks and sells it without it-

spection, indemnity has been frequently allowed.”’

Frequently, the courts, in considering the right to indem-

nity, speak in terms of ‘tactive’” ¥s. ‘passive’ negligence,

er ‘‘primary’’ and ‘‘sevondary’’ liability. See Best ¥.

Yerkes, supra, and compare Franzen v. Dimock Gould &

“Co., ..: Iowa ..., 101 N. W..2d 4, 4, where city reeovered

indemnity from property owner in a **sidewalk case.”

However, whére both, or all parties, are equally guilty

of an unintentional or inadvertent wrong, i. e@., negligence,

xo that it eannat be said that one is more guilty than the

other, indemnity could not be had, for there is no **inn-

cent party, who although liable, was guilty of no actual

wrong. Again, the common-law rule in such a situation

was that no relief could be afforded to joint wrongdoers.

However, in some’ jurisdictions, by statute or deeisieia:

law, contribution is recognized and enforced as an equitable

remedy.”

Apparently, prior te 1956, no action for contributiet

was recognized in lowa, and the only remedy available te

the party upon whom the loss fell was to seek inelemmnity »

by proving that his negligence was but passive, or that his

liability was secondary as against the active negligence et

- - —_——— .

11 OU. L. A. Miscellaneous Act [| Cniforn: Contribution \imong

Tort-feasors Act], 1959 Supplement, p. 47, it is noted that contr

tien among joint tort-feasors Is now in effect in varies degrees. ”)

statute or otherwise, in about one-half of the states. See, al-. Lis

cussion and cases cited, Zontelli Brothers z Northern Pactfe Nuue

way Co. & Cir, 263 F.2d 194, at p. 197

— 33 —

primary liability of another. In that year the Supreme

Coart af iowa, in Best v. Yerkes, supra, first recognized .

that an action for contribution would lie, absent a showing

of intentional wrong, moral turpitude, er concerted action

by the alleged tort-teasors. In referring te the commen law

rule denying contribution, the Court observed at p. 25:

‘But this reason fails when the tert committed

against the third party was due enly to inadvertence,

without any intent on the part of the tort-feasors te

injure him. Consequently we conelude that the minor:

ity rule which. perniits contribution or indemuity in

negligence cases has the firmer foundation."*

Since the Best decision the Towa court has reaffirmed this

hokling and-applied the remedy. See-and compare Van

Tiger v. Hendricks, 24) lowa 25, 85 N. W. 2d 548, 545:

Constantine v. Sclieidel, 241 Lowa 953, 90 N. W. 2d 10, and

Hawkeye-Security Ins. Co. v. Lowe Construction Co., _..

lowa ..., 99 N. W. 2d 421, 425.

Now that discussion hag been had as to the lowa law

Whieh recognizes both equ) able remedies, indemnity and

contribution, we must turn again to our initial statement

concerning the necessity of a common liability as the eon. .

dition precedent to apy such action. It is our view that

much of: the eonfusion and disagreement between the par-

ties here is oceasioned by the failure te consider the real

Meaning of ‘teommon liability."" Rock Ixland contends

that ‘common liability: j absent when one alleged tort-

feasor is liable, if at all, only for negligence, and the

other's liability is predicated upon a statute Which super-

cedlos the common taw, and renders the second tort-feasor

absolutely able * The essenee of the action for contribu-

tion is Common liability to the injured person, not liability

for vommeu negligence, or similar neglivenee, or like new.

ligenee, Simply stated, common liability means that each

party, by reason of his wrongful act. is made legally

linhie to respond in’ damages to the injured party. Ab-

2

.

7 :

— 4 —

sent such liability on the part of the person from whem

indemnity or contribution is sought, how can it be said,

in evoking the equitable remedy, that the one seeking re-

lief WtS=Porne an unfair share of the loss for which al!

are liable? A typical situation arises when contribution

ix sought from the husband of the injured party, but de-

nied because, by marital immunity; the husband could not

he liable to his wife. The lowa court, in effect specifically

recognized the necessity of common liability in Van Tiger

v. Hendricks, supra, 85 N. W. 2d 5438, 545, where defendant!

in the persenal injury action sought to implead the 16

vear old son of plaintiff for purposes of asserting a clain

to contribution. The court put the question in these words:

“Could a mother have a claim against her son,

Dased on either negligence or recklessness, which de-

fendants might assert if jadgment goes against them

in the main case? We may properly express

grave doubt as to the probability of an unemune ipated

minor son becoming liable under the potential situa:

tion presented here * * °."

See, also, discussion, Zontelli Brothers v. Northern Pacific

Railway Co., supra, 263 F.2d at pp. 197, 198. This ele:

ment, liability to the.injured person, finds further expres

sion in the requirement that one seeking contribution must

establish that the injured party was free of contributors

_ negligence, if such defense woukd have barred: the injured

person's recovery. See Hawkeye-Security Ins. Co. v. Lowe

Construction Co., supra, 99 N. W. 2d at p. 425.

With this somewhat extended discussion behind us, We

are now able fo state the instant question in conerete

terms. Was Rock Island guilty of an act of negligence. ”

whieh was fhe pxoximate eause of, Kleppe's injury and

damage, which thereby gave rise to a right’ of nection I

Kleppe against Rock Island?) Tf so, then if it can be said

that North Western, subject only to statutor® liability as

the employer of Kleppe, was without actual fault, and that

e

Rock Island's negligénce was the sole proximate cause,

then North Western would be entitled to indemnity. On

the other hand, if it ean be said that. the negligence of

Rock Island concurred with that of North Western te

proximately cause the injury, and that no greater fault

lies with either, then North Western would be entitled to

contribution, ;

_ Now, as to common liability in the factual situation he-

fore us, it’is conceded that North Western's duties and

linhilities as te Kleppe were based upon ‘the Federal Eim-

plovers’ Liability Aet, 45 U.S.C. A., $51 et seq. We need

not diseass the various factors giving’rise to sueh liabil-

. for that area is amply covered in the trial court's

opinion. Tt is sufficient to say that the court ruled. that

North Western, having accepted the defective ear, could

have been found in violation:of the Federal Safety Ap-

pliance Acts, 45 UL S.C. A. $1 et seq. The trial court

found further, however, that North Western was guilty of

actional negligence under the F. f. L. A. in failing in its

duty to inspect the car for defects. Inasmueh as no suit

Was filed by Kleppe, it is impossible to say which of these

two elements of liability formed the basis of North West-

ern’s settlement. However, the evidence fully supported

these findings, and they are not clearly erroneous.

It is clear: that Rock Island's duty toward Kleppe was

not fixed by the F. EB. L. A. because Kleppe was not its

employee. This iis the keystone of the assertion that there

could be no common liability—Rock Island first insists

that if-it ever had a conmmon law duty to Kleppe, this

duty was superseded and cease ‘d upon a finding that North

Western was the one who violated the Federal Safety Ap-

plianee Acts. The gist and effeet of this argument is that’

a delivering carrier's duty and liability to an emplovee of

a receiving carrier, with respect to a defective car, is cut

off and terminated when the car is accepted hy the re-

ceiving carrier, and that upon acceptance of the car the

,’ .

==

reeeiving carrier becomes, by virtue of the federal statute, ~

fully responsiblé to one of its employees injured be reason

of the defective car. Of course, it is true that, as between

Roek Island and North Western, only one could be found

vuilty of the violation, and to this extent, Rock Island's |

duties under the Federal Safety Appliance Act did cease

upon delivery of the ear to North Western. However,

what Rock Island overlooks, or ignores, is that in fact ne

action eould be brought by Kleppe under the Federal

Safety Appliance Acts—there is no such personal right—

and in an action against his employer, the force of its

proseriptions would become meaningful to: Kleppe only

through suit under the F. E. L. A. See penalty sections, 4

U.S. C. A. §§ 6, 13, and see Jacgbson v. New York, N. H

& H. R. Co.,1 Cir., 206 F. 2d 153, 155, affirmed, 347 U.S.

909; Carter v. Atlanta & St. A. B. Ry..Co., 338 U.S. 40,

434. Thus, the real contention of Rock Island is, in effect,

that Kleppe had no right of action except under the

F. KE. L. A., of in other words, that his exclusive remedy

must lie against his employer. |

When Rock Island’s contention is stated in this manner,

itis clear that its position is untenable. Duties and liabili-

ties are not limited to violations of the Federal Safety

Appliance Acts. This point is well illustrated in the hold:

ing of the Court in Patton v. Baltimore & O. R. Oo., 3 Cir.

197 F. 2d 732, where the defendant railroad was found not

to have violated the Federal Safety Appliance Acts

There, the Court stated, at p. 741: |

“But the fact, however, that the plaintiff may net

predicate B& O's liability on the Safety Appliance

Acts * * * does not absolve the railroad. The plsi

tiff has, we conelnde, another and separate basis upon

whieh to base her claims, that of negt:gence actionalle

at common law. The railroad had the dutv of de

ering it: ears in reasonably sate condition, amd if was

&

‘

*

reouired to properly: itspeet thei. Restatement,

Torts, ) 392 (eiting cases).

Furthermore, it is clear that the duties owed to Kleppe

were not exclusively those of his employer. Rock Islan’.

obligation to him jay be illnstrated bys this statement

tound in. 44 Ain. Jur., Railroads, § 381:

“Connecting railroad companies may trutually agree

to transport the loaded freight cars of each other

over their respective lines. Under such agreement

eh is under obligation te exereise due diligence in

providing reasonably safe cars for the service eon-

templated. Such duty is not limited to the corpora-

tions us such, but extends to and is owed to their

servants who must necessarily handle the cars, aid

who may be exposed to danger arising from their un-

safe or defective condition. The « company neglecting

this duty is liable in damages for its negligence. * * *

The receiving company is answerable to its employees,

if it undertakes to use the cars of the pther company

without due inspection, * * * but#the neglect of the

receiving company to perfortn this ‘duty does not ex-

‘cuse or relieve the delivering company-from liability

for injuries resulting from its negligence in delivering

unsafe and defective cars."' (Kinphasis supplied’)

See also 74. C.J. S., Railroads, £ 368, p. 901. This circuit re-

cently had oecasion to consider these coexistent duties in

Chicago, Rock Island & Pacific Railroad Co. v. Williams,

supra, 2490 FL 2d 397, where plaintiff, an employee of, the

shipper, was injured while loading a defective ear whie h

had heen supplied by Rock Island. We adhered to our

prior deci ‘ision in St. Louis-San Francisco Ry. Co. v. Ewan,

S Cir, 26.F. 2d 619, at p. 620, quoting as follows: |

“Tt is a carrier's duty to use ordinary care to deliver

fars reasonably safe fot the use of shippers and their

emiplo ees while the cars are being loaded or un-

‘ — 5s —

loaded. Copeland v. Chicago,’B. & Q. RB. Co. ((. . \.),

203 F. 12,15. The employer's duty to provide for the

employee a safe place in which.to work may be added -

in the circumstances but does not supplant the car

rier’s duty. ‘The carrier cannot impose this duty te

furnish cars reasonably safe on the shipper, ‘to its

own relief from liability for injuries to an employer

of the shipper. If the carrier is negligent in furnis h-

ing a defective car to the shipper, and the ship yper in

turn is negligent im furnishing it to his employee te

be loaded, the carrier and shipper are both liable to

the injured employee; for the proximate cause of the

injury is the defective car. * * ** [quoting Watldron +

Director General of Railroads (('. |. A.), 266 F. 1%,

198]*’ (Emphasis supplied).

The Iowa court had oceasion to define the extent of the

carrier’s common law duty as to defective cars,in Jackson

v. Chicago, M., St. P. &'P. R. Co., 258 Iowa 1253, 30 N. W.

2d 97, where an employee of the consignee was ‘injured

while unloading a shipment. There, the Court held that

plaintiff stood in the position of an invitee to whom de-

fendant owed the duty of reasonable care.

We recognize that the foregoing cases did not involve

injured employees of another railroad. However, sce and

compare, Lowden v. Hanson, & Cir., 134 F. 2d 348, 590, in-

volving a defective switch, owned and maintained by one

railroad and used by another, pursuant to trackage agree

ments. The plaintiff's employer was held lable for net

ligence under the F. E. [. A. and the co-defendant railroad,

owner of the defective switch, was held liable for comtuen

law négligence, liability in each case being based upen

failure to inspect. We are unable to discern any reason

why Rock Island's duty here should not extend te an ene

ployee of another railroad company whose liability is fixed

by. statute.

“Rock Island presents the additional agent that its

Hexigence if failing to inspect the car was not ta proxi-

mate cause af Kleppe's injury, inasmuch as the negli-

gence of North -Western constituted an effective’ Sinter-

vening cause, thereby making Rock Island immune from

liability. The trial court observed that there is a division

of authority on the question of the liability of the deliy-

ering cartier to an employee of the’ receiving carrier, 179

F.Supp. at po oo See also, Anno. 152 A. L. R. BIB. Ree:

ognizing that the Towa court: has not expressly passed

upon the contention advanced by Roek Island! Judge

Graven appropriately tonsidered the question of proxi-

mate cause generally and demonstrated that in Iowa, save

in very exceptional cases, the issue of proximate cause is

for the jury. See Lindquist v. Des Moines Union Ry. Co.,

239 Towa 356, 30 N. W. 2d 120,123; Jackson v. Ciicago, M.,

St. P. & P. R. Co., supra, 30 N. W. 2d, at p- 101.) There. -

fore, as trier of the facts, Judge Graven found that. the

negligence of Rock Island was a coneurring ~“royximate

cause of Kleppe's injury, p. 55 of 179 F. Supp. The com-

peteney of Judge Graven to rule upon a question of ‘lowa

law is hardly open to debate, and since Rock Island has

not demonstrated to our satisfaction that the trial court

misconstrued or misapplied local law, or. that its findings

of fact are “clearly erroneous’, its ruling on this issue

must stand. Weiby v. Farmers Mitual Automobile Insur-

.ance Co, 8 Cir, 278 F. 2d, 327, 329, 331.

° . bd . . . kes

We have also given consideration to Rock Island's final

contention that the evidence was legally insufficient to es.

* But see, and compare, Jackson v Chicago, Mo. StoPo & POR

“Supra, holding inital carrier’ liable toe: msignee's employee who

Was injured by defective door. Apparently, the car had prtssed

thrgh the hands of the. supper and two other railroads, plainun

ame Ms es -emplovees had repeatedly prved at the door with a <teel

Pneh barvand at the me of the Injury, emplovees were attempting

.teopen the door with @ chain and tractor The court held. atop

. aa, e conclude it was for the Wry to sav whether the defeeris

Pd tah

{uo

noot the ear existed before the car left: defendant's

messessiun amd ‘caused the door to tall” ( Eamyphasrs “upphead s

+)

talilish actionable negligence on its part. This, like other

defenses raised by Rock Island, was fully explowed by the

trial court. After discussion of the governing prineisles

of law as to finding negligence upon circumstantial evi- ”

dence, the Court concluded that it could reasonably be in-

ferred that the brake was defective at the time Rock

Island delivered the car to North Western, and that the

defect was discoverable in the exercise of reasonable care.

See p. 51'of 179 F. Supp. We are convinced that probative

evidence afforded ‘a solid basis for the inference drawn by

the trial court, and that its findings in this respect are not

clearly erroneous,

North Western's appeal brings into focus the action of

the trial court denying it indemnity. Relying upon Way-

lander-Peterson Co. v. Great Northern Ry: Co., & ir, 201

F. 2d 408, North Western insists that under the instant

facts, although legally liable, it was guilty ef no actual

wrong. As pointed out by the trial court, this wa’ found

_ to be true in the Waylander-Peterson case. However, the

situation here is entirely different, for ‘the trial court

found that control of the, defective ear had* passed from

Rock Island to North Western. As previously discussed,

this finding was supported by evidence, and is not clearly

erroneous. Furthermore, the trial court found that North

Western negligently failed in its duty to inspect the ear

prior to its acceptance. From the ‘record before us, it

must be said that both parties were negligent and. that,

their negligence coneurfed to proximately cause Kleppe’s

injury and damages. In such a gituation, the parties were

in pari delicto, and while North Western is entitled to

,contribution, it is net entitled to indemnity. |

The judgment is

é ; Affirmed.

wot” oe

_ APPENDIX A.1.

(Judgment. )

Of United States Court of Appeais

for the

Fighth Cireuit.

These causes came on to be heard on the record from the

United States District Court for the Northern District of

lowa, and were argued by counsel.

On Consideration Whereof, It is now here Ordered and

Adjudged by this Court that the Judgment of the sai

District Court in these causes be, and the same is her

affirmed.

August’ 10, 1960.

\ —-t-

_ APPENDIX B.

179 F. Supp., pp. 33-63.

The Opinion, Findings of Fact, Conclusions of Law and

Order for Judgment of District Judge Henry N. Graven

were filed December 7, 1959 and are as follows:

In this action the plaintiff, Chicago and North Western

Railway Company, haviog poo! £70,000.00 to one Kleppe,

one of its brakemen, in settlement of his claim for in-

juries against it, aska indemnity or, in the alternative,

contribution from the defendant, Chicago, Rock Island &

Pacifie Railroad Company. The injuries for which settle

ment was made were received in connection with the oper-

ation of a hand brake on a car owned by the defendant

which at the time was oh a transfer track at Goldfield.

Towa, used by the plaintiff and the defendant for the ex-

change of cars. Both parties are common carriers et

gaged in interstate commerce, Jurisdiction is based upen ;

diversity of citizenship. The case was tried to the Courte

Goldfield; lowa, was not a division point on either line,

and neither the plaintiff nor the defendant maintained ear

inspectors there, At Goldfield the plaintiff's line ran, in

general, north and south, and the defendant's line rat, iN

general, east and west: The lines of the plaintiff and the

defendant intersected: at substantially right angies. A

eurved transfer or interchange track connected the te

lines. That track was west of the plaintiff's Tine sand

couth of the defendant's line. The track Was apprext: |

mnately TT feet in length, The defendant Was the ewes

of the upper, or northerly, 300 feet of the track, gre the

plaintiff was the owner of the bahanee.

At about [:6) A. Moon February sytta, PML ae tecean er

of the defendant placed on the exehange track fiver emt

which were destined for’ points an three qoleetnititt

e

The defendant maintained a station agent at) Goldfield

bu, siuee bebruary oth, Moo was a Saturday, the agent

Wis hot on dute The detendant’s crew left the wavbills

for the cars tn a box at the defendant's station. At*l):44

A. Moon February Sth, 155, a train ef the plaintif® ar

rived at Goldfield from the south. The crew oof that train

had been instructed to pick up the five cars. Kleppe was

a brakeman oon that train. The other brakeman on the

train, one Reynolds, secured the wavbills for the cars from

the box at the defendant's station. The engine on the

plaintiff's train then proceeded onto the transfer track

from the south for the purpose of placing the five ears

on the plaintiff's train. Reynolds and Kleppe were the

brakemen in connection with that operation. They first

released the air in the-triin lines of the five ears. On

four of the ears, incinding the ieest mortherly car, thie

hand brakes had been set. The most northerly car was a

box car owned by the defendant, designated as Rock Tsland

262261, ft had been loaded with farm implements. in Ti

nois and was destined for a potnt in South Dakota. [ts

hand brake Wag loc ated at the north end thereat, ine:

‘diately below the roof of the ear, -The brake was of the

ratchet type, in which a section of ehain contd be woune

in or ont of phone for the purpose of appl ing or re.

leasing the brikes, The ratchet was operated bs a handle

whie ‘h hung down froma pivet on the housing. A comple

of feet below the brake housing was a stall “platform, for

se DY the person apply mg or Veleasing the brakes. Kleppe

ascended to the platform for the purpose af releasing the

brakes, Prior thereto the engine heaved hewn conpled onte

the siuthermmost of the ears, all of which were coupled

fogethior, The engine had remained standiay after coup

ling antes the southernmost car. Kieppe then latterngtedb

te release the brakes haat was unable te dase. Phe ther

thought that if the car were plaeed ino inetion he cout

! Ae

‘ase the Drakes. Tle signatled Rewnolds. whe was then

Meelees

The eneine. te meave the ears. The engine proceeded

a

.

to move the cats. As the cars began to move Kleppe

pulled and continued to pull on the brake handle. After

the cars had been moved. fifteen to-twemy, feet the brake

handle and part of the housing suddenly came loose, and

Kleppe was precipitated to the ground and sustained in-

inries which were serious and permanent in nature, After

the mishap it was dis¢overed that parts of the brake

mechanism ‘were missing. A search for the missing parts

was unavailing. There was no ice or snow on the ‘platform.

Following the mishap the plaintiff's crew pulled all five

ears.onto the plaintiff's main line ane then switched the

car involved in the mishap back to the transfer track.

The conductor of the plajntiff’s train then placed the way:

bill for the ear in the box at the defendant's station with

‘a notation on it that it was a bad ofder car. Neither the

defendant's station agent nor any of its other employers

‘knew, until some time afterwards, of the inovement of the

ear by the plaintiff's crew immediately preceding the mis

hap. When the defendant's station agent at Goldfield

came on duty on Monday morning, February 7th, 1959, be’

found the waybill in the box. On the same day the car

_ was hauled by the defendant to Towa Falls, lowa, where

it was repaired. ;

_ Kleppe subsequently made known to the plaintiff that

he was taking claim against it for his injuries. The

plaintiff tendered to the defendant the defense of Kleppe

‘claim. The tender was rejected and the defendant refused

to participate in any settlement of Kleppe’s claim. Kleppe

handled his claim without the assistanc + of legal corte!

He negotiated a settlement for $70,000.00.) Gin Oetober

itth. 1996, the plaintiff paid Kleppe that ameuyt. The

reasonableness of the cettlement is not controvertes hy

the defendant. ‘The clainy of Kleppe’ against the plaints®

was coneededly based upon, the Federal Employers [vat

bility Act, 4 US. 6. AL OOD ot seq, |

-

- +4) — :

In the present case the plaintiff makes clatm for indem-

nity. Tn thrat connection it asks judgment against the de-

fendant for the entire amount paid in settlement of the,

Kleppe claim. bi the alternative, the plaintii? makes

claim for contribution. In that connection it asks judyg-

ment against the defendant for one-half of the amount

paid in settlement of the Kleppe claim.

It is the claim of the deferidant that the question ax to

Whether the plaintiff is or is not entitled to either indem-

nity or contribution is not reached in this case. The con-

tention of the defendant in this regard has two phases.

It contends, first, that the claim of the plaintiff is barred

by the statute of limitations. In that conneetion the de--

fendant urges that the plaintiff's elaim. is. barred by 45

U.S. C. AL $56, relating to actions brought under the

Federai Employers’ Liability Act. That section provides,

in part, as follows:

‘No action shall be maintained under this chapter

unless commenced within three years from the day,

the cause of action accrued.” |

In the instant Case the injuries which gave rive te the

claim against the plaintit? were sustained on February oth,

1990. The $70,000.00 in settlement was paid by the plan

ti to Kleppe on, Oetober Tth, 156. This action was

contuenéed on May ISth, 15s, more than three vears after

the injuries were sustained but less than three years after

“the payment wes made te Kboppe in settlement of his in

aries. There inheres in this contention of the defendant

two theories: one, thatethe applicable statute of limitations

is the one contained in the Federal Fmplovers’ Lishilits

| Aetand, second. tat acelaton for inder inity or contributions

deeries When injuries are sustained by the mgured parts

oiswell settled that the law of the phiee of the corn

Toosstom vt the fort w hich tvs tise ten elwiny for itiede rn

a

- =.

‘

“=

“*

— 46 . : «

nity or contribution is the applicable law. Northwest Air-

lanes, Ine. v. Glean L. Martin Company (D.C. 1958), tel

F. Supp. 452, and authorities cited. See Wade, Joint Tort-

feasors and the ¢’onflict of: Laws, 6 Vanderbilt Law Review

44, 473 (1953). It seems clear that, even though liability

for the tort committed was-bottomed on and existed be.

cause of the Federal Employers’ Liability Aet, the right

to indemnity or contribution is nevertheless governed by

the applicable state law. Ft. Worth & Denver Ritilwigy

Company v. Threadgill (Sth Cir. 1955), 228 FP. 2d 307, oh

See also Zontelli Brothers ¢. Norther? Pacific Railway Co.

(Sth Cir: 1959), 268 F. 2d 194, and Waylander-Peterson

Co. v. Great Northern Ry. Co. (Sth Cir. 1953), 2ol F. 2d

408, 37 A. Le Re 2d 1399,

It appears to be well settled, as to a elaim for indemmits

or contribution, that the statute of limitations does not

begin to run until the person seeking indemnity or con-

tribution has paid the judgment rendered in faver of the

injured person or has settled the claim. See Annotation,

2%) A. L. R. 2d 925. See alse Davis, Indemnity “Betweer,

Negligent Tort-feasors: A Proposed Rationale, 37 lows

Law Review 517, 538 (1952). In the recent case of Hawk:

vevye-Security Insurance Company, ine. v. Lowe Constructor

(we. (Nov. 17, 1908), ... lowa .... ... BN. W. di . the

(Court ceclated: that ordinarily the right to contribution be

‘comes complete and enforceable only upon payment by the

claimant which discharges more thgn bis just share of the

common obligation’. A elaim such as here invelved i %

garded as inchoate from the time of the ereatreon of |

relationships until ane of the events referred to oetar

Zontelli Brothers v. Northern VPacitie Railway Co

Cir, 1:50), 268 FL 2d 19s, 2a,

tt seems clear that as to the claim of the plaintiff bie ream

the applicable statute ot limitations is tha. of che Sty:

of lowa and not the statute of limitations contained tm th

oe <

OE ee

Federal Employers’ Liability Net relied on by the defend-

ant. Tt also seems clear that the plaintiff's claim for in-

demnity or contribution accrued on October 13th, 156,

when it paid Kleppe $70,000.00 in settlement of his elaiin.

The general provisions relating to the limitation of actions

in lowa are cotitained in Section 614.1, Code of low: a 195s,

The defendant has not pointed oat any provision of that

section Which would bar the asserted claim of the plaintiff.

It, thix connection see Davis. Indemnity Between Negligent.

Tort-feasors: a Proposed Rationale, supra, at 528, foot-

note D3, ic as holding of the Court that the elaies

ot the plaintiff for Mlemnity or contribution is not barred

by any applicable statute of limitations.

It was heretofore noted that it.was the contention of the

defendant that the «question of whether the plaintiff was

entitled to indemnity. or cantribution was not reached,

aud that such contention had twe phases, The first phase

Wats the statute of limitations. The other phase was that

the plaintiff had by contract agreed not te make claim

against the defendant arising out of injuries suktained in

connection with cars owned by the latter.

“It is undisputed that the plaintitt and the defendant were

hoth parties tthe rules of the Assoc ‘tation af American

Railroads and that beth heed aren to be bennd by Those

rales. The defendant relies npen certain of those rales.

Rule 7 of the Association of American Railroads" Code ot

Var Servier Rules provides as fuilows:

“Cars shall be considered as having been leliveres!

'o at connecting railroad when placed npon the trock

ocrem? upon cmd designated ys the tnterehanywe trie k

for such deliveries, aecompanied or preceded bw neces

“ary data for forwarding and te insure de livery. aml.

weve peter by the car itispree tor of the receiving peered.

Voless otherwise arranged between the comds cen

erned fhe recoiving rensel <tisell bee Feespoeatimtbiles fewer thre

.

om AR ake.

‘ars, contents and per diem after receipt of the neces.

sary data for forwarding and to insure celivery, and

° .

until they have been accepted by its inspector or re-

turned to the delivering road.”’

The Code of Rules of the Association of American Rail-

roads also contains the following rules:

“Care of Foreign Freight Cars. ’

‘Rule 1. (a) Each railroad is responsible for the

condition of all ears on its line, and must give to a!

equal care 4 to inspection and lubrication.

(b) Repai®s should be made by ear owner insofar’

as may be practicable. In the event a foreign car

requires repairs account of owner’s defects, such re-

pairs may be made subject to the following conditions:

1. Repairs to loaded cars must be confined to the

minimum necessary for the safety of ear, lading end

trainmen.,

2. Repairs to empty ears located at points where

there is a direet connection with car owner, or wifre

there is an intermediate switching Line toscar owner

and cars are’ acceptable to such switching line for

movement to car owner, toust be contined to the mim

mum necessary for safety of trainmen and safe move

meat of car te home line; except where ear t. sul

sequently loaded on repairing line or on any fine &

same switehing district in which the repairs sere

made, in which event paragraph (b-1) applies.

3. Repairs to empty cars at other points ynnst by

confined to the minitaum necessary for safety ef car

wel trainmen; except where car is sybsequentiy loaded

‘on fepaining line or on any tine in same sit!

district in. whieh the repatrs were made. in 975

event paragraph ¢b-D) applies. °

ee meee

a

.

4. Empty cars of lower loading’ classitieation TER

net be repaired for Class A loading ‘without ext

‘

*

o

owner's consent.

Interchanging Freight Cars.

“Rule 2. Caps having defects for whieh detivering

company is responsible must be property carded when

offered in intewshange.

Miapty cars offered in interchange must be accepted,

providing they conform to the requirements of Rule 3

amd are in safe condition for movement, the receiving

road to be the judge."’ ,

; f

It is the contention of the defendant that the plaintiff

had accepted the car in question. It is the firther eon:

tention of the defendant that ‘under the. above ruies-it was,

by reason of the plaintiff's havinggaceepted the car, re.

lieved of any responsibility for personal injuries sustained

by the plaintiff's employees it connection with the car.

There inheres in this contention of the defendant the theory

that under the rules referred to the plaintilt in effect

waived any right it might have against the defendant hy

way indemnity or contribution arising out of the Kleppe

mishap.

The defendant. presented the testimony of witnesses whie

were familiar with the practice and custom of railroads.

Tt was the testintony of those witnesses that it was not the

custom and practice of railroads which were parties to the ¢

rules to make claims against eagh. other sueh as here

asserted by the plaintiff, Ut is the elaim: of the defendant

that this testimony showed the practical canstrnetion

haere Upon the ruled ov the railroads which weee parties

to them. Tt was conceded by the defendant chat cat one

tune the Committers of the Car Serviee Division of the

Association of Atrerican Railroads ruled that the rules in,

“Westion head no application te the matter of Rabilitw for

— i

personal injuries. The defendant disagrees with that inter:

pretation. In the case ef Chieago, Rock Island & Pacitic

Railroad Co. v. Williams (Sth Cir. 1957), 245 F.2d an,

certiorari denied (1957), 300 CT. S. 853, 18S. Ct. Sa,

L. Ed. 2d 63, a case involving personal injuries to an em

ployee of a shipper, the present defendant relied upon

what are concededly the same rules i connection with the

question of indemnity. The suine question, however, Wie

not involved in that case as in the present case. The United

States Court. of Appe als for the Eighth Cireuit observed

(p. 405):

5 eee ee The. only agreements between the parties

were as to traffie matters such as agreements relating

to interchange, per diem, ete. No reference Whats

ever is made it such agreements as to inderinity of

od a a

any kind,

It is the holding of thre ( ‘curt that the rules re ‘lied wpou

by the defendant do not operate as a waiver of or a bar to

any claim for indemnity or contribution that ethe pli aintitt

cuight have against the defendant arising out of the ms

hap. It is the view of the Court that the most that appears

from the evidence is that many railroads heretotore had

observed the protocol of not making claims against ot et

railroads of the nature here involved.

The plaintiff not being barre 1 by any statute ot Linnita

tions or by the rules referred fo from asserting ac!

for indemnity or contribution against the defendant, seme

phases of that claim will next be considered, .A chain te

indemnity involves a shifting of the entire ae ane a

claim for contribution involves a sharing of the lo-8 |

connection with? the subject of indemnity or contrition

a?

to

as related to negligent tort feasors, the terra jaune

feasors’' is generally used Tn the strict sense oft

‘joint tort-feasors’” would have reference pos ituetions

*

tities ‘

which the parties act in coneert i, nnn

=} “

That situation is only infrequently encountered, In the

overWhelming muinber of situations the parties are in

reality concurrent tert feasors. However, since the term

‘joint tort-feasors’* as generally used in the decisions en-

COMPASSES concurrent tort-feasers, it will be so used herein. :

_ Where both tort-feasors are acting independently, the situ-

ation is sometimes referred to as a case of persons wliose

tort liability arises Out of the same circumstances.” See

. DelLude ve. Rimek (1952 301 TL App. 466, 115 N. EB. 2d

561, 563, and Restatement of Torts, { 885, p. 460.

A substantial part of the briefs and arguments of the

parties was devoted to a discussion of the Federal, Em

ployers’ Liability Act, 45 U.S.C. AL, S91, and the Federal

Safety Appliance Acts, 45 Ul S.C. AQ Sd, et seq. The

latter will hereinafter be referred to as the Pedera] Satety

Appliance Act. |

Congress enacted the original Safety Appliance Act in

1803. It now appears as Sections 1-16, 40 U.S.C. AL See.’

tions i through 6 were adopted by the Act of. March 2,

N03, ¢. 196, 27 Stet. 531, Sections & through 100 were

adonted by the Aet Gf Mareh 2, 1903, ¢. 976, 32 Stat. O43,

and Sections 11 through 16 were adopted by the Act of

April 14, 1910, ¢. 160, 360 Stat. 208, Since its original

thactivent it has contained provisions relating to appli-

anees for rolling stock usec in interstate commerce and

has provided for a penalty for each violation of the Net.

Detects whieh constitute violations of the Aet are known

a= penalty defects. The present Emiplovers’ Liability Act. -

War originally enacted in 1908. The pertinent portion of

the present Net (45 ELS. Cl AQ O51) is as follows:

“Every common carrier by railroad While encag

Jing in copmieree * % * shall be lable in damages to

“nV person suffering injury whitle he ds erplayed: by

seh currier in seh commerce resudting im whole

orounopart from the negligence of sueh carrier. oy

»

7

by reason of any defect or insufficiency, due to its

negligence, in its cars, engines, appliances * * "or

ofher equipment.”’

An action by an employee against his employer under

the Federal Employers’ Liability Act where the Salety

Appliance Act is not involved is predicated on negligence.

Zumwalt vy. Gardner (Sth Cir, 1947), 160 F. 2d 2os, oa;

MceGivern v. Northern Pac. Ry. Co. (Sth (ir. 1942), 1 ie F.

tt, Ss e

In ferms, at least, the Safety Appliance Act merely im-

poses a small statutory penalty for a violation thereot,

be reeovered;in an action by the Government, and ‘does

not confer any right of action in. favor of -one who su-

tains jnjury as a result of the violation. Jacobson v. New.

York, N. H. & H.R. Co. (Ist Cir. 1998), 206 F. 2d Los, 19.

However, it has long been settled that the Federal Safety

Appliance Act and the Emplovers’ Liability Act are

in pari materia, *San Antonio & Aransas Pass Ry. €o.

v. Wagner (1916), 241 U.S. 476, 484, 36S. Ct. s26, 6!

L. Ed 1110. A railroad employee who sustains mjuries

because of a violation by his employer of the Satety Ayr

plianee Act may recover for such injuries from the fatter

yuder the Federal Employers’ Liability Act (without other

proof of fault, except suc ‘+h violation. Carter vy. Athans

& St. AL BoRy. Co. (1949), S88 Tas. 450, 454, TS. Ute

296, O4 L. Ed. 236; Byler v.. Wabash R. Co. (Sth Cir, Etec.

106 F 2d 9 1. Once a violation of the Satety Apple

Act is established, only causal relation is in issue. Cal!

Atlanta & St. A. B. Ry. Co. supra; Campbell v. Pett

burgh & W. Va. R. Co. (D.C. Ba. 4), 122 K. Sapp vet

751: Hallada v. Great Northern Ry. (1955), 244 Minn si

Ba NW. 2d 673. 0 Seefion. a and 34.25 U.-S. 0. A.

abolish therdefenses of contributery neehieence ane

stuption of risk, respectivery, Sec Byler vo Wabash i

('ov, suaperil.

i .

<

a

*Incaections under the Federal Employers* Liability Aet

where the Safety Appliance Act is not involved, the em-

plover is not an insurer of the safety of the place of work

or of instrumentalities or tools, but he must use reasonable

eare to see that the employee is furnished al safe nlace

to work aha safe instrumentalities and tools. Bailey” v.

Central Vt. Ry. (1948), S19 U.S. S00, Boz tan, 6a SS. Ot

10082, 87.1. Ed. 1444: Williams v. Atlantie C. LR. Co. (5th

“Cir, 1951), 190 F. 2d 744, 748-749; Terminal R. Xss'*n of

St. Louis v. Howell (Sth Cire 1948), 165 Fo 2d 15, 1s

Liability for failure of the employer to furnish ao safe

place to work is based upon that portion of the Federai

Emplovers’ Liability, Act (49 U. S. (@. Ay 691) which

makes emplovers liable for injuries to employees caused

“by reason of any defect or insufficiency, due toe its neg

gence, in its cars, engines, © * * or other equipment.'-

Chicago Great Western Railway Company ve. Smith ¢sth

Cir. 1955), 228 F. 2d 180, 184.

The Safety Appliance Act. in 45 Ul S00. Ao D1, makes

it unlawful for any common carrier engaged in commerce

“to hanl, or permit to be hauled or used tn tts [ine * ans

* car not equipped with ‘‘eMieient hand brakes.’ Bach

party charges the ether with a violation of that seetion.

It is the claim of both parties that the matter of the viel

tion of that seetion and responsibility therefor is oof de

terminative importance on the questions of tidemimity and

contributian,.

The parties are # controversy as to what clatmed viela

tions of duty were&ivolved. in connection with the Rlepne

settlement. The defendant asserts that the platetit® rude

settlement with Kleppe because of the vielution by the

- plan til of the provision of the Safety Appliance Net cre

lating te brakes, ‘The plaintiti asserts that it mide settle

Three?

! with Kleppe heenuse of ite failive te furnish bin

Wath sp ssafe ace te work under Seetton ST, 4) SoC A,

Mf thy Bederal Briplovers’ Liability Net Shree The netien

Irrespeetive of any dats of inspeetion and regare:

kang." en x

was instituted by Kleppe, there were no pleadings to refer

to for the specifications of violation of duty or duties

asserted by him, as there were in some cases where a

claim for indemnity was involved. See Chicago Great

Western Ry, Co. vo Farmers Produce Co, (XN. D. Lowa

Hos), 164 FL Supp. 932. Wirile the claim of Kleppe wes

concededly based upon the Federal Employers’ Liability

Act, it is not possible to ascertain from the reeord tn this

case whet claimed violatton of duty or duties on’ the part

of the plaintiff was involved in the Kleppe claim. The

fact that the plaintiff is-making claim fer indemnity or

contribution presupposes that it did violate some duty or

dutics that it owed to Kleppe. If such were not the stina-

tion, the plaintiff in making the payment would have Seen

acting asta mere volunteer. .

The parties discussed the Federal Safety Appliance Act

at some dength. Certain phases of that Agt will be next

considered. ,

Neither the Safety Appliance Aet nor the common law

requires a carrier to accept from a connecting line a ear

equipped in violation of the Safety Applianee Act. Ito:

both the right and duty of a carrier to refuse to accep!

‘such defective carin interchange if acceptance would neces

sarily involve its own use of such ef in violation of th:

Act. Baltimore’ &-O. S. WLR. Co. ve United States’ ith

Cir. 191-7, 242 F. 420, 425. - A receiving ovrrier has a

dntv tw inspeet and asecertyn before aceeptine§ cars te

dered. for stripmention its lines or handling then in ay

way, except perhaps go make necessary renairs, that ther

are equipped in-every wav and comply in every espe’

with the requirements of the Safety Applianes Net. Baad

> 3}

-. Wabash Ry. Co. (1982), 329 Mas 1123, 40 S: W. 2d 24

o7, 88 A. LR. 655; Baltimore & OS. WLR. Ce. vt

~~!

States, supra. However, the statutory Tiahility on:

“eo

complete lack of ftaudy om the perurt oot thee railroad

—— oe —

bana “Great Southern R. Co. ve United Stages (Sth Cir.

WG), 235 FL 2d Seve, 525. The duty Piiposed is an tiles

lute one, and the carrier is not excused hy any showing of

care, however assiduous. Myers y. Readiny. Ce, (147),

SOLUS. 477, 482 eet Cp pe CML. Bad TRB: Brain

V. Terminal Ro ABS ni C1 § acto PLS. 1, 1, Se Sat.

426, $2 L. Ed. 6144. See also Zumwalt vo Gardner (Sthie'ir,

147).. 160 FS 2d 208) and O'DommlRl vy. Blgin, J. & BE. Ry.

Co, (1949), 380, Ss. OM4, TOOS. OW 200, O4 to Bed, O89, 16

ALL. R. 24 646. The O'Donnell Cae was an action under

the Federal Kuiplovers? Liability

coupler. The Court Stated (1. 3

PAct imvolvingsta broker:

IU. S.):

“But this Court early swept all issnes of neoligence

aut of cases under the Safety Appliance Net. For pon

sons set forth at length in cur hooks, the Coturt sheild

that a failure of equipment yo pertorm: as required by |

the Safety Appliance Net is in itself an aetiPnahle

Wrong, in ne/way dependent upon negheoner: and for

the proximate results. of Which there is babilitw. ae

liability that cannot be escaped by proof of care on

diligenee.""

If a carrier recerves: aar in detective ‘eondition fron,

another carrier at oan Interchange traek and hanis it over

its line it that condition, it Violates the Taw recirdless of

the distance hauled or the purpose of the hauling. | Nites

States v. Northern Pac. Ry. Co. (Mth Cir. faery. ese r

607. 6600 In Pnited States vo Atchison, To & So F. Ryo Gag

De 145), KF. Supp. OSD a defective ear placed onan

Interchanuwe “track Was so coupled between nen, Aefeetins

‘wars that they contd not be moved ay Msed withont rien iter

the defective car, The receiving carrier, atter Ispovting

the cars ane discovering the detnetive one. refused to ne

vent it in that condition, — Nevertheless. it remavedd the

ears to its vards before redelivetiine the defective ear ha

voit hack on the interchamee track Tn at aetion My

vfs tered Stiities tase Tecayvey thie ~Hiatiptery Portis ty pre

~\

— ob —

vided for a violatjon of the Safety Applianes Act, the trial

court held that there, was no violation of the Act) | On ap -

peal the judgment was reversed, United States v. Atehi-

son, T, & S. F. Ry. Co. (9th Cir, 1946), 156 F.2d 457. The

Court held that the handling of the car by the defendant

did constitute a violation of the Aét. The Court stated (p.

$59): *** * © the courts should not be moved by considera-

tions of conveniengé or practicability to whittle: away

oe er ee provisions, of the Act.

Only two ‘defenses are available eshe the statute: either’

a denial that the defective car was hauled, or a showing

that the car became defective while in use by the carrier on

its line and was being hauled from the place, where the

defect Was first a. ered to the nearest available point

for repairs. 45. ‘-A., § 13; Alabama Great Sint

_ R. Co. v. United Stites ( sth Cir. 1956), 933 F. 2d n20,

United States v. Ate ‘hison, T. & S. F. Ry. Co., supra, at 40>

Any other hauling of a defective ear, ine ‘lauding a hauling

of it before its defective condition is discov ered, is a Vie

lation of the statute thongh the carrier -is without fault in

not making the discovery. Chesapeake & O. Ry. (ov.

U nited States (6th ¢ 1918), 249 F. 805, certiorari denied

(1918), 248 UL S. pa “30 S. Ct. 67, 63 L. Edi 431; Chesa-

peake & O. Ry. Co. v. United States (4th. Cir. 1915), =

F. 683, GS7. Although the necessary movement of pidge

tive car for the purpose.of repairs relieves the earrter from

liabitity for the statutory penalty,’ it does not relieve the

carrier from liability for injury to an employee cause!

thereby. 45 U.S.C. A. § 13. Of course, movement or haul-

ing of a defective car is not necessary to constitute a vie

lation of the Safety Appliance Act. Brady v. Terminal R.

Asx'n of St. Louis (1988), 303 U. 8-10, 58 S. Ct. 426, s

L.. Ed. 614; Minneapolis, St. P. & S. S.-M. Ry. Co. v. Groneau

1 See. however. United States v. Denver & R. G. W. R Cr

(1s C890, 1735 Fo Supp. 662.

ey. eee

(1926), 269 US. 406, 46 S.Ct 129, 70 LB 385. Tn a

ease where the contrary was contended, the Court, in

United States vo St. Louis Southwesten? Ry. Co. (Sth Cir.

IN), IS4 FL 28, stated (p. 82):,

The statute forbids hauling and using. Why were

heth words used?) * * * *Used* has other meanings

than ‘hauled.’ It is a broader word. To haul is to nse,

but may not a car be used within the statutory medn-

iis otherwise than by being hauled?’

In Cusson v. Canadian Pac. Ry. Co. (2d Cir. 140), 115

Fo 2d 430, two cars beionging to other railroads stoo

coupled together on asidetrack. Defendant coupled its en

gine to car No. 1 to add it toa train. It was hecessary to

set the brake on car No. 2 so that it would not roth down

the sloping track when the two ears were uncoupled. Car

No..2's brakes failed to hold it and it began to roll after

the cars were uncoupled. In abedience to instructions the

plaintiff, defendant's employee, attempted to jump from

ear No. 1 to car No. 2 in order to: stop it. Ti so doing he

fe and sustained injuries for whieh he sued under the

Safety Appliance and Federal Employers’ Liability Acts,

In holding that ear No. 2 was in use liy defendant, the

Court stated (p. 482): ¢ ee i”

The faet that the Delaware car was not in motion

(foes not, of course, mean that it was not in "No car

Certainly the defendant ‘used’ the brake upon ‘the

Delaware ear for its own piirposes; that was necessary

to prevent the Delaware car's ‘drifting’ down the track

after the Boston & Maine car had been uncoupled. The

argument must therefore be that a ‘use’ of the brake

Was not a ‘use’ of the can, which is not only verbally

untrue, but whie b disregards the whole unde rlyii ing pur-

pose of the act."

Whether the defective ear was hauled or used upon the

portion of the transfer track owned by plaintiff or upon

— as —_

Fi

the portion owned by defendant: is imitate rial Brady v.

Wabash Ry. Co. (1982), 329 Mo, 11235, 42 s. W. Bt 24. A

* on its line’ relates to control, net ownersinip. bh

the present case the mishap oceurred an the portion of the

transfer track owned by the defendant. "Pheo po oontifl mihes

no claim that this feature ix of significance, The fact that

a railroad exeretses control and direction over the crew

and movements of ears constitutes a hauling on its fine,

under the Safety Appliance . Act, even though the move-

ment is ever ' tracks of another company. ee

& RK. Ry. Co. ve United States (3d Cir, 111), 1 i

Rodgers v. Conevalingh & BL EDR. Co. (D.C. 1956), 15 e

Supp. 467; United States ve New York Cent. R. Co. co id

1946), 70 F. Supp. 761.

Py

‘a ; . :

Efficient hand brakes are those which act or -have the

power to act effectually, Southern Pac. Co. vy. Carson (th

Cir, 148), 169 FL 2d 734, 737. Inefficient means not pre-

ducing or not eapable of gee’ the desired effect.

Myers v. Reading Co. (1947), 331 U.S. 477, 483, 67 S.Ct

1334, 01 L.Ed. 1615; Spotts v. Sanaa & O] R. Ca, ith

Cir, 1988), 102 F, 2d 160, 162. |

There are two recognized methods of showmeg the |

efficreney of safety appliances: either a: particular dete

may be shown to have existed or a failure to function when

operated with due care in the normal manner.” Carter *

Atlanta & St. A. B. Ry. Co. (1949), 388 U.S. $30, 144

S..C't. 226, 94 L. Ed. 236; M¥ers v. Reading Co. (1947), a

ULS. 477, 483, 67.8. Ct. 1334, 1 L. Ed. 1615; Byler v.. Wa-

bash R. Co. (Sth Cir. 1952), 196 F. 2d 9, 11; Missouri-K.-T.

R. “Coe v. Ridgway (Sth Cir. 1951), LOY F. 2d 363, 366-307;

— Spotts v. Baltimore & O. R. Co. (7th Cir. 1938), 102 F F 2

160, 162; Anderson v. ¢ ‘hesape ake & OQ. Ry. Co. (1935), 392

Ill. 561, 186 N. BE. 185, certiorari denied (1935) 290 t. S

675, 54S. Cr. 93, 78 L. Ed. 583; Didinger v. Pennsylvania

R. Co, (6th Cir, 7930), 30 FL 2a TOS, 799. In the instant

— I —

ease the evidence discloses both the nature of the defect

aie tee faet that the brake failed to tunetion properly

When operated in the usual muamner.

In support of its contention that defendant violated the

Satety Appliance Net, — relies upon Brady vo Wa-

bash Ry. Co. (1952), S29 Mo. 1125, 40 S. W. 2h 24. 85

A. L. &. 655,- certiorari denied (1932), 28¢ U.S. 619, 53

SOCt 20,07 L. Ed. 538, and Brady v. Terminal Ro Ass‘n

HSS), S05 TS. 10, oS S.Ct. 426, 82-1. Ed. 614. In the

first case it appeared that the tracks of the Wabash and

Terminal railroads were connected by an Jinterchange

track. Terurinal placed a-string of cars upon such track

to await inspection, acceptane eand further transportation

by Wabash. Plaintiff, a W abash inspector, was ‘injured

_ by reason of. a abe abs “attached grab iron while in-

specting one of the cars te? determine ‘whe ther they would

be accepted by Wabash. Prior to the inspector's injury,

| Wabash had not, moved any of the ears or done anything

else except to send its emplovee to Inspect them. The Mis-

souri Supreme Court reversed a judgment recovered by

the inspector against W abash for an alleged violation of

the Satety Appliance Act, holding that it was net shown

that the car was being hauled or used on its fine at. the.

time of his injury. The secone case involved a subsequent

action by the same inspector against Terminal for a viola-

tign of the Safety Appliance: Act. Judgment for the in-

Spector was reversed in) Brady v. Terminal R. Ass'n of

St. Louis (1937), 340 Mo. S41, 102 S. W. 2d 908, the Court

holding that Termifal was not using or permitting the

ear to be used on its line at the time of the injury, and

that Terminal owed to the Wabash employee no commen

law duty to inspect. The Missouri Court, in turn, was

reversed by the United States Supreme Court (1988). 305

U.S. 10, 58S. Ct. 426, 82 .L. Ed. 614, which held that the

hauling or use of the defective car had not ended When

plaintiff sustained his injuries, that Terminai's respotsi-

.

+

on Ol)

bility continued because Wabash had not accepted or as

sumed control of the car, and that Terminal was liable

although the inspector was not its employee,

The Brady. case would seen. to be distinguishable tron:

the present case. Prior to its inspector's injury, Wabash

had not moved or otherwise handled any of the cars. At

the time of Kleppe’s injury, on the other haad, the plaintill

had coupled its locomotive to the cars for the purpose of

removing them from the interchange track and placing

them in its train; its brakemen had released the brakes

on several of the cars; and the cars themselves* were actu-

ally being moved by North Western's crew toward is

‘train. It is the finding of the Court that the plaintiff had

accepted the car in question.

The, plaintiff claims that the defendant, by picking up

the waybill for the car and taking the car to Lowa Falls

Iowa, for the purpose of having the brake repaired, recoe

nized that the car had never been accepted or used by the

plaintiff. However, it appears that at the time these acts

were done neither the defendant's station agent at ‘Gold-

field nor any of the defendant’s other employees Knew ot

the handling and using of the car by the plaintiff.

Upon acceptance by the plaintiff of the car in question,

the legal situation of the defendant as to the Safety Ap-

pliance Act changed. In the cease of Brady v. Wabash Ry.

Co. (1932), 329 Mo. 1123, 49S. W.. od 24. 83 A. L. RK. tbo,”

the Court states (pp. 28 and 29'S. W. 2d): **The decided

cases * * * hold that the defective car must be in actual

use by the defendant at thy time of, the injury in orsler

to be within the provisions df the Safety Appliance Act.”

Accord: Clark vo Atlantic Coast Line Railroad (C. A. 1. ©.

1957), 244 3 ag . Patton v. Baltimore & O. Roe. a

Cir. 1952), . Bd 282.

The Safety Appliance Act was violated by the fond

lent was eater bey srpeefEbecpeetit ruac?

arnt only if the

—t)] —

and the defendant was hauling or using-the ear on its line

ate time. Clark vo Atlantic Coast Line Railroad, supra;

Patton v. Baltimore & O. R. Co, supra; Baltimore & ©.

R. Cosy. Hooven (6th Cit. 1924), 297 FL 919: Risberg v.

Duluth, Mo. & TR. Rye-Co, (1951), 233 Minn. 296. 47 XN. W.-

2d 113, certiorari denied (1951), 342 Ul S..852. 72.8. Ct.

4,96 L. Ed. 630; Paul v. Duluth, Mo & ER. Ry. Co. (DL ©.

~ Minn. 1950), 96°F, Supp. ofS; Huck v. Chieayo, St. P.M.

& O. Ry. Co. (1958), 5 Wis. 2d 130, 92 No Wy 2d 32. The

prioe use by a delivering carcier of a car equipped with

ineficient brakes is not a basis for absolute liability under

the Satefy Appliance Act. Clark. y. Atlantie Coast Line

Railroad, supra; Patton v. Baltimore & O. R. Co., supra.

After its employees had placed the defective box car

upon the interchange track and set the hand brake thereon, .

the defendant had no connection with it until it was later

returned to it by the plaintiff. The defendant was not

hauling the box car at the time of Kléppe's injury. Nor

can it realistically be said that) the defendant was using

the box car when Kleppe was injured. In view of the

foregoing, it is the holding of this Court that the plaintilt

“was chargeable with a violation of the Safety Appliance

Act so far as Kleppe was concerted, and the defendant

Was not.

Since the plaintiff had accepted the car in question, the

defendant was’ not liable to Kleppe under the provisions

of the Safety Appliance Act. The Federal Ermplovers’

Liability Act governs actions brought by railroad em-

ployees against their employers, Had Kleppe sued the

‘defendant, that Act would have been inapplicable for the

reason the defendant was not his employer, See Hartley

¥. Baltimore & O. R. Co. (3d Cir. 1952), 194 F. 2d 560:

Panichella vy. Pennsylvania R. Co. (D. @. 1958), 167) F.

Supp. 345, 351; Matusiak v. Pennsylvania K. Co. (D.C.

W55). 134 F. Supp. 6S].

*.) .

— a

It is, of course, well settled that in order to sustain a

elaim‘for either indemnity or contribution there niust he

a common liability to the injured person, [tis the asser-

tion of the defendant that, since it owed no duty te Kleppe

under either the Federal Employers’ Liability Act or the

Safety Appliance Act, it owed him no duty at all. Based

on that premise the defendant contends that it) was not

under any liability to Kleppe for his injuries, and that

such being the ‘ease common liability of it-and the plain-

tiff was lacking.

_ The contention of the defendant in regard to the matter

Of its common liability has three facets. It-is the elain

of the defendant that the brake on the car in question was

not defective at the time it was left at the transfer track.

It is the further claim of the defendant that if the brake

on the car in question was defective at thie time the ear

was left on the transfer track, it was not such a defect as

would have been discoverable in the exercise of reason:

able care in the matter of inspection and that, therefore,

it was not guilty of negligence. In, that connection the

defendant asserts: that the rule of res ipsa loquitur is vet

applicable. It is the further claim of the tlefendant that

if it were guilty of negligence in the matter of inspection.

that negligence was not a proximate cause of the injuries

sustained by Kleppe. The contention of the defendant ih

this regard is that the plaintiff was under a duty to in

spect the ear in question for defects before accepting it

and that having failed to so do, such failure constituted an

intervening and superseding cause which insulated the

defendant from liability to Kleppe.

It is clear, as the defendant contends, that commer

liability in so far as defendant is concerned eannot be

predicated upon the Federat Emplo¥ers’ Liability Act or

upon the Safety. Appliance Act. However, the fact that

its liability cannot be predicated upon those Acts does not

hy. pee

prevent its liability from being predicated upon coninen

law negligence. Therefore, its common liability. wonld

have to he predicated upon common law negligence. Tn

the case of Patton v. Baltimore & OL Ro Co. (kd Cir. 1952),

197 FL 2 722. the administratrix of a decensed emplovee of

aprivate railroad brought an action against the Baltimore

and Ohie Railroad Company, to recover damages for the

deaths of the employee. The employee received injuries

_tesulting in his death by reason ef the escape of errs on

the private railroad due to defective brakes. The ears in

question had, previous to the mishap, been delivered by

the Baltimore and Ohio Railroad ( ompany to the private

railroad and accepted by it. ~The Court held that the

Safety Appliance Act was not applicable. It stated (}).

741): :

“Tt may be argued that the railroad did haul en its

Tine ears equipped with defective brakes. But this is

not an answer. Congress changed the common law

liability of the earrier only in eases where the accident

was caused by bad brakes and the railroad was using

or hauling the ear or cars on its line. The Aet did

hot provide that ownership or prior use by the railroad

of a car or cars with insufficient brakes: would serve

as the basis for the absotute liability imponed on the

carrier by the Act." .

The C ourt vibes held that the res ipsa loquitur rule was

hot applicable, The Court then stated (p. 741):

“But the fact, however, that the plaintiff may not

predicate B & O's liability on the Safety Appliance |

Acts or.on an inference of negligence arising from the

escape ofsthe ears alone does not absolve the railrodad.

- The plaintiff has, we conclude, another and separate

basis upon Which to base her claims, that of negligence

~ actionable at common law. The rattroad had the duty

of delivering ‘its cars in reasonably safe Condition,

—¢— ie

.;

amb it was required to properly inspect them. Re:

statement, Torts, § 392; ° °°"

In connection with the matter of common liability, the

matter of the liability of the plaintiff will be further con.

sidered. This Court heretofore found that the plaintif

would be Jiable to Kleppe for violation of tlie Safety

Appliauce Act. The plaintiff could also-have beer under lid-

bility to. Kleppe for negligence under Section 51, 4) U.S

(. A., of the Federal Emplovers’ Liability ‘Act, which made

it lable in damages for injuries: received by an emplovee

by reason of its negligence. In-an action bv an injured

employee against his’employer based on the Federal En-

ployers’ Liability Act, such employée may assert liability

on the part of the employer on the ground that the latter?

violated the Safety Appliance Act, which would be s non

negligénce claim. Such emplovee could also assert. lia-

bility on the part of the employer on the ground of negli:

gence. They are separate grounds of liability. O*Donne!!

v. Elgin, Joliet-& FE. Ry Co, (1949), 388 Ul. 384, we

S.Ct. 200, 44 L. Ed. 187, 16 A. L. R. 2d 646.

The matter of the liability of the plaintiff and the de

fendant to Kleppe for negligence will next be considered.

That matter involves the question as to whether the brake

was defective at the time the car was passed on by -the

defendant to the plaintiff and whether either or both wer -

cuilty of negligence in failing to discover the defect. The

ear was left on the transfer track at around 1:00 o'clock

A.M. The hand brake was sey at that time, by one 0!

the defendant’s employees and was apparently operative

in regard to the mafter of setting the brakes. There wa-

no movement of the ear and no use of the hand brake be:

tween the time the’car was set out and the time the ea

was pieked up by the. plaintiff around three hours later.

at which time the hand brake was inoperative so far as Te

leasing the brakes was concerned. As heretofore noted.

ae

— oo : :

the brake mechanism failed when the hand brake was used

tor the pirpose of releasing the brakes. It would seem

to be a reasonable interence. that the brake rmiee ‘hignismn

was defective at the tin w the car was passed on by the de-

fendant and received hy the plaintiff. It is the finding of

the ¢ ‘ourt that such was the siftation.

The next question is whether the defect was such as

would have been discoverable i the exercise of reasonable

eare. The defendant chose to pass the car on to the plain-

tiff without having any inspection of it made by‘a car

inspector to see if it was in a safe condition to be. passed

on. The time the car was last inspec ‘fed by a car inspector

of the defendant does not appear. «The plaintiff chose to

Teceive it without haying any inspection of it made-by a:

ear inspector te see if it was in a safe condition to be

received,

The defendant presented testimony that it was not the

general custom of car inspectors to,test hand brakes to

see whether they were operative as to setting and releas-

ing brakes. In the case of Gibson v. Shelby County Fair

Ass*n (1954), 246 Towa 147, 65 N. We 2d 483, the Towa

Court stated (pp. 485, 436 N. W. 2d): .

“Subject to certain exceptions not here applicable

the rnle is well settled that evidence of the custom or

common usage Of a business or occupation is generally

adinissible on the question of negligence, although jt

is not a conchusive. test, since the standard of care is

ordinary care under the circumstances and the stand-

ard of custom cannot be substituted for it.’

In the ease of Wabash Railroad Company v. Hartog (Sth

Cir. 1958), 257 F. 2d 401, an employee of a consignee

sustained injuries because of a defective door guide on a_

ear furnished by the defendant railroad. Tn affirming the

Indgment in favor of the employee, the Court stated (p.

4(}); ,

—

*

.

“**Appellant’s car inspectors testified that this eu

was given the usaal, customary and ordinary tiispoee

tion and that nothing defective about this deo guide

was noted. However, the standard to be use “land bv

which the defendant is to be judged is mot the ordi

‘nary and customary practiee or inspection of the Ws

bash, Railroad, but.-what a reasonable and pendent.

person would be expected to exercise under the sane

ar similar cireumstances."

; .

Therefore, as to whether the defendant and the plaintif

were guilty of ‘negligence in this eonnection ts to hee“ tle

termined by the trier of facts, in this ease the Court. The

ease of Brady ‘v. Terminal R. Ass'n of St. Lonis (18s),

340) Mo. S41, 102 S. W. 2d 903, was, as heretofore .1 ated,

an aé¢tion by an employee of one railroad against anotle

railroad which had delivered for interchange purposes a

ear which had a defective handhok 1. The Court stated ip

WO5 S. W. 2d):

» ‘In this connection we may add’ that a railroad

company does not perform its duty to inspect hatte

holds on freight ears for the safety of employees.

having its inspestors merely pass by and look ‘at

them,. but the handholds must be subjected to ates!

similar to that they will receive in use. Baltimore $

O. R. Co. vo Smith, 169 Ky. 593, Is4 8. We TEs.

L. R.A. 1918F, 1205, affirmed 246 TLS. 653, 55 5 ct

835.062 L. Ed. 922; Felton v. Bullard, 37 C. CAL 1, ‘4

es |

The contention of the’ defendant that the res ipsa Lengul-

tur rule is not applicable to the situation in this citer has

been heretofore referred to. The Towa rile as te res ips

loquitur is that where an injury occurs by instruments.

ties under the exelusive control and management o!

defendant and the oecurrence is such as-in the eres

course of things would not happen if reasonable ear

sed , a sion

been used, the happening of the injury permits bat does

ne, conti pe ah inference that the defendant was jegligent.

Wellman v2 Haw keye-Security, Insurance Company (1959),

lowa’..., HON. WL 2d 761; Tedrow v. Des Moines

Honsine Corporation (1958), 0... Towa o... 87 NL We. 2d

463; John Rootf & Sons. Jne. Vo Winterbottom (1957)...

Towa ..., 86 N. W. 2d 131; Weidert v. Monalmn Post

Legionnaire, C lub, Ine. (1952), 243 lewa 642, 51 N. W. 2d

fon: Dodec v. McFall (1951), 242 Iowa 12, 45 N. Wi 2d

OT; Eavessv. City of pure: (1949), 240 Towa 956, 38

VN. W. 2 COKITON, WA... 2d 1164. See also Slife, The

Iowa Doctrine of Res Ipsa a 35 Towa Law Review

O95 (1950), and Highland Golf’Clnb v. Sinelair Refining € a

(D. 1945), SF, Supp. 911. In the case’ of Eaves v. City

, of Ottumwa, supra, the Court states (p. 769 X. W. 2d): -

“Our decisions involving the res ipsa rule have uni-

formly stressed the necessity of defendant's cotaplete

and exclusive control of the instrumentalities that

cause ‘the injury.”* ,

Tt is clear that the defendant was not in complete and ex- |

clusive control of the instrumentalities which cansed the

injury and that the res ipsa lo juitur rule is not applicable

on the question of its negligence.

However, the fact that the res ipsa rule is not applicable

as to the defendant ‘does not prevent negligence on the

part of the defendant being established by cireumstantial

eVidence. Tp the ease of Eaves v. C ity of Ottumwa, supra.

the Court states (p. 769 NL W. 2d)

“The res ipsa rule should not be confused with the

proposition that newligence, like other facts, maw be

Rroven by circumstantial evidence, Existence of cir

cumstantial evidence of negligence” in a) partientar

Gaise does not mean the: res ipsa doetrine is applicable

in that case. Nor does rejection of such deetrine in

#oyiven case mean that negligence may net he estab,

listed in that case by cireumstantiol evidenern

*

-

—<—

The evidence bearing upon the matter of the defect iM

the liand brake and its discoverability by the parties in

the exercise of reasonable care is circumstantial in ear.

_ The Iowa rule as to proofgby cireumstantial ev

onee in a eivi ease was recently stated’ by the Towa

eles Court in the ease of Brower ve Quick (15 iS),

lowa ..., 88 N. W. 2d 120. In that case the question in-

volved was as fo proof of negligence and Freedom from

contribatory negligence by cirenmstantial evidence. The

Court stated (p. 123 N. W. 2d):

‘We are firmly committed to the rule that tesre

cover one need not prove his theory of causation |

evidence so clear as to exclude every other possitie

theory. The evidence must be such as to make lis

theory reasonably profiable, not merely possible, and

more probable than any other hypothesis based ot

such .evidence.”*

For decisions by.the United States Court of Appeals fer

this Cireuit on this pliase where the Towa law wis ay}

plicable, see Ford Motor Company v. Mondragon (stir.

Nov. 10, 1959), ... F. 2d. ...; Little v. Watkins Motor

Lines. Ine. (Sth Cir. 1958), 256 FP. 2d 145; Guyer v. Flyer

(Sth Cir. 1954), 216 F. 2d 537, certiorari. denied (1955), 48

U.S. ‘, aX 75 S.Ct. 542, a0 L. Rad. 728. In those decisions

the Court refers to the “tliberalized’* Towa rule ast

proof by cireumstantial evidence.

The lowa Supreme Court has rejected the rule that an

inference may not be based upon another iiferetice Ser

_eide v. Vilas & Company 1956). 247 lowa D139, 7s NL W

4 41: John Rooff & Sens, Inc. vo Winterbottom ney

. Jlowa .... SO x. @. on 131, 134.) In the case et Seri

v. Vilas & Company, supra, the lowa Court Vater} op. 44

N. W. 2d):

“We disagree with the contention defendar ts >

trees

that an inference may net be bosamered Atpean satierTaie!

xt

— 09 .—

*

.

ference or upon a fact the existerte of which itself

rests upon au inference. While. some authorities use

substantially the statement defendants urge upon us:

it is unsound and, like many other courts, we have

rejected it.’ " —

See vlso Fegles Const. Co. “Mel anghlin C onst. Co. (9th

Cir. 19:3), P05 F. 2d 637, mie :

The Court is of the view that it can reasonably be in-

-ferred that the hand brake on the cir in question was de-

fective at the time the defendant passed the car in ques-

tion on to the plaintiff and at the time it was received by

the plaintiff. The Court is also of the view that it can

reasonably be Snferred that. the said defect was discover-

able in the exercise of reasonable care in the matter.of

lispection.

The Court is of the view that the hypothesis that. the

hand brake on the car in question was defective at the

time the car was passed on by the defendant to the plain-

tiff and*that such. defective condition of the ear was dis-

coverable in the exercise of reasonable care is more ‘rea-

sonably probable than any other hypothesis based onthe

evidence in this case,

It is the-finding of the. Court that beth the plaintiff

and the defendant were guilty of negligence in connection

with the matter of inspection of the car and the discovery

of the defect in question:

~The defendant ‘conterids, Hy wav of alternatiy that,

even if it were guilty of negligence in connection with the

ispection- of ‘the car in question, its negligence did not

give rise to liability on its part to Kleppe beeanse such

heglivence was not a proximate eause of his injuries. THe

defendant asserts that. the subsequent negligence of the

PlaintifY broke the causal connection between its newli-

genes and the Injury to Kleppe. There inberes in -thact

‘

— i 10—

assertion the theory that the subsequent negligence of the

plaintiff constituted an intervening independent — cause

The theory of independent intervening cause is related to

the matter of proximate eause. That theory act~ a. a

limitation on the general rule of proximate canse, in that

an independent intervening cause is regarded as breaking

the chain of causation set in motion by the original act

of negligence and insulates the original newligent actor

from liability for an injury which may result.

Tn 152 A. L. R. 1813 there is.an annotation on the lia

hiliry of a railway company for personal injury, other

than to a passenger, caused by defective condition of a

ear delivered ‘to another railway company. The annota-

tion cites and discusses the eases dealing with situations

where one carrier delivers a defective car to another ear:

rier and the receiving carrier is held liable in’ damages

either to one of its own employees or to the employer

of a consignee of the car.

The courts are ‘divided on the question of the liability

of the delivering carrier in such a case. The defendast

in this connection cites and relies upon the following

casesr Roberts v. Southern Pac. Co. (1921), 54 Cal. App.

315, 201 P. 958 (employee of receiving carrier); Ruiz ¥.

Midland Valley Railroad Company (1944), 158 Kan. 924.

148 P. 2d 734, 152 A. L. R. 1307 (employee of consignee}:

Missouri, K.. & T. Ry. Co. v. Merrill (1902), 65 Kan. $70,

70 P. B58, 59 LR. A. 711, 98 Am. St. Rep. 287 Cemployer

of last carrier); Glynn v. Central R. of New Jersey (10).

175 Mass. 310, 56 N. EB. 698,78 Am. St. Rep. WT (em:

plovee of receiving. carrier); Kurtz v. Detroit T. & 1 RK.

Co, (1927), 238 Mich. 289, 213 XN. W. 9169 femployer of

‘receiving carrier); Lellis v. Michigan Central Ro Co

(164)), 124 Mich. 37, 82 N. W. 828, 70 TL. Re AL Sitst fone

ployee of receiving carrier); and Brady y. Terminal

Ass'n of St. Louis (1987), 340 Mo. 841, 102 8S. W. ey OH,

reverts d (]'tts wet ! — .* + ' i e ‘ ti;

(etipelers

the carrier which

rier is net Liable te am « - = ont

.

or te the emplow ‘ f a , vr * } —e ) - ving

carrier delivers the car T w foe of the hellinw. of

those cases is clearly set forth in the case of Missouri,

K.& T. Ry. Co. 6. Merrill, supra. In that ease the Court

states (p. 360 P.): ,

“A recovery has been denied in cases like the one

at bar on two grounds: First. There being a posi-

tive duty resting on the receiving railway company

to inspect the car turned over to it for transporta-

tion by another company, to the end that its em-

ployes may not be injured by defects existing before

its receipt, the omission or negligent discharge of

such duty breaks the causal connection between the

negligence of the company tendering the defective

ear and the Plaintiff's injury. Tn such eases the |

failure to inspect, or the negligent manner of doing

it, Ig the proximate cause. of the injury ‘to the em-

ploye, and the negligence of the company turning

tai unsafe car is the remote canse. The failure

to discharge the obligation to inspect interposes an

independent ageney, which severs the causal eon-

“nection between the company first guilty of negligence

and the hurt.’" .

There are several courts which are not in agreement

With the holdings of those cases, Some of the cases

contra are: Pennsylvania R. Co. v. Suvder (1896), 55 Ohio

St. 342. 45 Ne BE. 559, 60 Am. St. Rep. TO) femplovee of

receiving carrier); Louisville & N. Rc. v. Burch (1912).

9 Ky. 245, 159 S. WW. 782 “(employee of consignee):

Moon, vy. Northern dio R. Co. (1891), 46° Minn. 106, 48

N. W. 679, 24 «Am. . Rep. 194 (emplovee 6f receiving

carrier) The roe case is often cited on this question.

In that case one carrier delivered a car to another ear.

rier,» An employee of the receiving carrier Was precip

tated to the ground and killed because of a claimed de-

fective brake staff. The personal representative of the

deceased employee brought an action against: both car.

riers for negligence in the matter of inspection of the

brake staff. A jury verdict was returned against the ce-

livering carrier only. The delivering carrier appealed and

on appeal the verdict avainst it was sustained. The ear

at the time of the interchange. had heen?inspected her gar,

inspectors of the two carriers who inspected together, but

they had not discovered the defect. The Court in its

opinion st Mod (p. 680 N. W.):

> «* © ® the company owning the car should be held

responsible for the cons@juences of its own wrofg:

ful or negligent acts or omissions, notwithstanding

coneurring negligent acts or omissions of the com:

pany receiving the car. The negligence of the latter

does not excuse or relieve the former from liability

for injuries resulting from its negligence. iP egies is

In the ease of Teal v. American Min. Co, (1901), 84 Minn.

320, ST N. W. S837, a carrier delivered a car to a re uty ine

—earrier (a minang company). Awemptoyee of the receiving

carrier sustained injury bee aust of a claimed defect in te

brake wheel. Tle sued both the delivering carrier and the

receiving carrier. The demurrer of the delivering carrie?

to the complaint was overruled by the trial court. mn afr

peal that ruling was sustained. The Minnesota Suprete

Court stated (po 8387 N. W.):

“The reason urged on behalf of the rathway compat?

why the complaint does not state a cause of action as

to it is, in effect, that its alleged negligent act was ue"

the proximate cause of the plaintiff's injury. beeat

the negligent aeeeptance of the car by the master. the

mining company, with actual or constructive netics "|

rt

.

me

ee

—— god

its dangerous Condition, was the intervening. efficient

cause Ob the injurve complained of. Therefore, it is

claimed, there, was no natural and continuens sequence

unbroken by any cause between the alleged negligent

aet of the railway company and the plaintiff's injury

It does not, however, follow that the negligent act of

the railway company must have beeti the sele cause of

the injury in order to render its negligence the proxi-

inate cause, for the allegations of the complaint show

that the negligence of thé mining company was a con.

* curring and vontributing cause of the injury. If thie

ablegations of the complaint be true, the railway eom-

pany, knowing the car to be in an unsafe condition,

and knowing that it was to be used by the employes

of the mining company, transferred it to the line of the

latter for such purpose. Except for this negligent act,

the plaintiff would not have been injured. It ix oquatly

true that if the mining company had not negligently

received the car upon its line for the use of its em-

ployes, the plaintiff would not have been injured, but

this negligence of the mining company, whieh may

have been solely of a negative charactar—that is, a

failure to use due care to inspect and repair the car—

Was nota new and independent cause, interrupting the

continuous sequence between the railway company's

negligence and the injury of the plaintiff. Tn its lapt’

analysis te + negligence of the mining company was the

failure to interrupt the consequences likely to and

Which did flow from the original negligent act-of the

" railway company by inspecting and repairing the ear

before requiring the plaintiff to use it—a contributing,

ot the sole proximate, cause. * ** *"

The Iowa law being applicable, the question arises

whether under the Iowa law the negligenee of the plaintiff

constituted an intervening and superseding cause which

Would insulate the defendant against liability for it< negli-

ai tl sii

gences The parties have cited no lowa cases bearing on this

phase of the case and apparently there are no cases dircetly

in pint.

Since the Jowa Supreme Court has not expressly passed

upow the question.of which of the two rules it would tol:

low, it would seem necessary to give consideration to cer:

dain general rules followed by it in negligence cases. As

noted, the question involves proximate cause, independent”

intervening Cause, and coneurrent negligence.

The Iowa Supreme Court has stated that by proximate

cause is meant that cause which in its natural and con,

tinuous sequence, unbroken by any new cause, produces al

event and without which the event would not have oc

curred. Brewer vy. Johnson (1955), 247 Lowa 483, 72%. W.

Yd 556, 558; Roller v. a Silo Co. (1951), 242

Towa lave 7, 49 N. W. 2d 838, 842. See cases cited in 'S Samuel-

son v. Sherrill (19388), 225 sale 421, 2B8O N. W. 506, ot

It has also frequently been held by the Lowa Supreme

Court that if the negligence of one party coneurs with the

negligence of another person in causing injury to a third

person, such negligenée is a proximate cause of the injury

even though it is not the sole cause, Dennis v. Merril.

(1984), 218 Towa 1259, 257 N. W. 322; Kuhn v. K jose

(19833), 216 Lowa: 36, 248 Ne W. 230; Johnson ve Me Vie ker

(1933), 216 Lowa 654, 247 N. W. 488. In other words, \ here

the feature of concurrent negligence is present there may

he as many proximate causes of an injury: as there are

actors.. In the case of Swaim v. Chicago, R. T. & P. Ty. 6o

(1919), 187 Iowa 466, 174 N. W. 384, the Court, in discuss

ing proximate cause, stated (p. 386 N. W.):

‘Nor will the fact that some other cause operates

with the defendant's negligence to produce the injury

retieve the defendant if the injurious result is trace

cable in some material degree to his want of due care”

One of the leading Lowa cases on the subject of comcourrent

Hegigence is the cise of MeDonald vo Robinson (lol). 207

lowa 1293, 224 N. W. 820, G2 A. L. R. 141% In that case

the Court stated (p. 821 N. W.): :

“If the acts of two or more persons concur in con.

tributing to and causing an accident, and but for such

concurrence the accident would not have happened, the

injured) person may sue the actors Jointly or sev-

erally, * °°"

There may- be a single proximate cause of a mishap, in

Which event it is referred to as the sole proximate cause,

There may be multiple proximate causes of a mis manne in

Which event they are referred to as conegrring proximate

causes, In ihe latter situation the negligent actors are

concurrent tort-feasors, Where two persons are both

guilty af negligence preceding a mish: ip in whieh a third .

person is injured, the circumstances may be such that the

chain of causation of the negligence of the first tort-feasor

would be regarded as broken by the negligence of the last

tort-feasor, Where such is the case, the negligence of the

last tort-feasor is referred to as an independent. interven-

ing-ecause, Tn such a situation the first’ tort-feasor would

not be regarded as a concurrent tort-fasor, and he would

he absolved of hability toe the injured person. The Towa

Supreme Court follows the general rules just stated,

Before considering certain Towa cases bearing apon this

subject, another matter will first be eonsidered. It would

seem that the real difference between the courts: which

follow the rule relied upon by the defendant and. those

that de not follow that rule is as follows: the former hold

that as a matter of law the negligence of the delivering

carrier is not a proximate cause of the injury sustained hy

‘the third person, while the latter hold that the question of

Whether the negligence of a delivering carrier Was or Was

hot a coneurring proximate canse of the injury is for the

wo Whe!

jury. In other words, in the one line of cases the matter

of causal relation between the negligence of the delivering

carrier and the injury to a third person is dealt with as

a question of law, while in the other line of cases it is

dealt with as a question of fact to be determined by the ©

trier of facts, Certain Towa cases that bear upon the

question of causal relation will next be considered. >

In the case of Lindquist v. Des Moines Union Ry. Co.

(1947), 289 Jowa 356, 30 N. W. - 120, the Court stated

(p. 1 128 N, W. 2d):

‘A subsequent and independent ‘intervening canse

will not absolve a defendant of negligence if it might

reasonably have been foreseen. * * * Tf the original

wrong concurs with the intervening cause and™bot! act

proximately in producing the injury, both as a rule are

proximate causes, ”’

“The United States Court of Appeals for this Cireuit

the case of Lemke v. Chicago, R. 1. & PR. Co. (152), 1%

F. 2d 989,-992, in which the Towa law was applicable.

quoted the statement of the Towa Supretie Court just

réferred to.

The case of Knaus Truck Lines, Ines v. Conimnercial

Freight Lines (147), : O78 Towa 1856, 20 N. W. 2d 204, i

volved a multiple motor vehicle mishap. The Knaus Truck

Lines, reférred to in the opinion as Knaus, brous chit siti

action against two of the participants to recover damages

sustained by it in the mishap. One Merrifield was the driv#

of one of the motor vehicles involved. The trial coeur

directed a’ verdict in favor of the defendants. On appess

the case Was reversed, The Court stated (p. 200 N. Wood):

“Nor do we think defendants were entitled te 4

directed verdict against Knaus on the ground that

Merrifield’s claimed nevligence, as a matter of [as

Was oan independent intervening cause whieh was

soiwiy responsible for the collision between Knaus and

Merehgnts. °° * [tis well settled that where a third

party's subsequent aet, whether negligent. or not, is

refed upon as an independent intervening enese it will

not have that effee! if it ora similar aet might reason.

ably have been foreseen.”

The Court, in discussing the issue of: whether the sub-

syjuent cause might reasonably have been anticipated,

stated (pp. 209-210 NL WL. 2d):

That this issue, if it was such, was for the jury,

not for the court, see Blessing vo Welding, 226 Lowa.

1178, 1IS2-1183, 286 NW. 426. and authiorities cited:

Johnson vi Overland Co., 227 Lowa 487, 408, 288 No W.

O1.*"

In the case of Lindquist v. Des Moines Union Ry. Co.

(1947), 229 Lowa 356, 30 No W. 2d to, there was involved

- the Htiestion of whether the negligence of the defendant

Was a concurring proximate cause ef a mishap. The trial

court directed a verdict for the defendant upon the ground,

inter alia, that if there was any negligence on the part of

* the defendant it Was hota proximate cause of the rrishieay.

In its opinion reversing the trial court, the Court stated

ip. LT ON. W. 2d):

_— The esfablished rule in this state has been Rat

Whether neglivence is a proNimate cause of an injury

is alWays a question for the jury when different minds

might reasonably reach different conelusions.”"

Tn the recent case of Priebe vy. Kossuth County Agri-

cultural Association, Ine. (Nov. 17, 1959), 2... Towa .. ,

N.W. 2d ..., the Court stated (p. 0. N. Wi 2d):

‘In order to constitute negligence it is not neers-.

sary that defendant could have foreseen the Harticular

oe

‘road companies from any lability for their neglige nee, I

48 «=

jury that resulted proyided it should have foreseen

its omission to act would probably result) im injury

of some kind to some person.”

In the case of Lawson v. Fordyce (1945), 234 i a 622,

12 N. W. 2d 301, 307, the Court stated that, save in ex:

ceptional cases, the question of proximate cause is forthe

jury.

The cases ‘of Miner v. Jovee ¢1942), 235 Sane ai 6

N. W. 2d 205, and Dolan v. Bremner (1935), 220 Towa

1143, 263 N. W. 798 were beth actions in which the plain.

tiff sought to recover for injuries sustained in a collision

between a motor velticle and a train which was standing’

on a crossing. In each case the plaintiff Was a passenger

in the motor vehicle. The Towa Supreme Court held that

as a matter of law the negligence of the drivers of the

motor vehicles in running into the train absolved the rail:

i?

any, in connection with the collision, However, “iti the

case of Lindquist v. Des Moines Union Ry. Co, (140), aM

Iowa 356, 30 No W. 2d 120, the Court expressly overruled

the Dolan and Dilliner cases and held that the question

of causal connection was for the jury. : :

The whol trend of the recent decisions of the Towa

Supreme Court is to the-effect that, save in excep tioné

causes, the question of causal connection between the neal!

gence of a person and the injury ef which it is claimed

to be a proximgte cause is one to be determined by th

jury and not one to be dealt with as a question of hos Iw

the Court. That Court has in its recent decisions te rided

to emphasize that questions as to proximate cause. Inde

peudent intervening negligence, and concurrent peetgligener

are peculiarly questions for the trier of facts.

It is the view and holding of the Court that wider the

lowa law the question as.toe whether the negligence of the

ae, 7

défendant was a proximate cause of. the jnjury to Kleppe

is tutbe determined hy it as the trier of, facts.@

The defendant, when it tendered the ear in question for

interchange without having had it inspected by a car in-

spector, knew that the plainfiff would use it for a period:

eo lof time without siliieg it inspected by a car inspector.

It was reasonably to he foreseen by the defendant that,

during that period injury of some’ kind to some person

would probably result from. its negligenc ‘ooand the negii-

gence of the plaintiff. It is the finding of the Court that

the negligence of the defendant was a %oncurring proxi-

mate cause of the injury to Kleppe.

The’ defendant. makes certain contentions coneerning

common Tiability which have to do with contributory neg.

ligence,

Tf Kleppe had brought an action against the plaintiff

based upon the Federal Employers’ Liability Act. his con-

tributory negligence, if any, would not bar his recovery,

but would Ko a the diminution of damages. Section

B45 TLS. C2 AL In Towa, in actions be an eniplover

against an as the rule is the same, Rule 97, Towa

Rules of Civil Procedure. This Rule, of course, is of im-

portance only where the emplovee is not within the coven,

age of the Lowa Workmen's Compensation Act. Since

Kleppe was not within the coverage of that Act, under

the Towa law. his contributory negligence, if any, world

hot bar his recovery ino any action by him against the

plaintit® based on common law.

. The first question presented is whether commen liability

is egatived by the fact that contributory negligence would

Not be a defense, under either the Federal Binployers’

Liability Act or the Iowa law, to an action brought by

Rleppe against the plaintiff. That question was presented

in ihe ¢ case of Zontelli Brothe Ts ¥. Northern Pacitie Rail-

oo

)

é

wie Oe

way Co. (Sth Cir, 1959), 263 FL 2d 194, where a railrond

employee sustained injuries in a- collision between the

train on which he was werking ard a motor vehicle op

ie rated by an employ ve of Zonte hi Brothers. The trainman

“recovered judgment against the railroad company under

the Federal Employers’ Liability Act. The railroad: com

pany then sought contribution from Zontelli Brothe Ps.

Zoutelli Brothers contended that, bee aiiae of the difference

in the applicable’ law relating to the liability ,of the rai

road to its employee under the Federal Employers’ Lialil-

‘ity Act ahd Zentelli Brothérs” liability ta. that employee

under applicable Minnesota law, there was no common lid:

bility. The United States Court ef Appeals for this Cir

euit held that such diffetence in the applicable law. relat:

ing to liability. did not destroy eommen liability’ ter

‘

' .

purposes of contribution.

The defendant further contends that contributory nes:

ligenee on the part of Kleppe would bar any claim he

might have against it, and thus there would be no cow

mon liability. In the recent decision of Hawkeye

curity Insurance Company v. Lowe Construction Co. (Nov,

17, 1999), ... lowa ...,°... N. W. 2d ..., Shere the

plaintiff sought contribution in a case arising under the

lowa law,.the Court stated that’ the party seeking cet

tribution had the burden of proving, mfer alia, that te

person who sustained the injury was free from contri:

tory negligence as to the party from whom contributes

was sought. See also Ford Motor Company v. Mendrs-

gon (Sth Cir, Nev. 10, ee oe | Se :

.

es

In connection with the contentions ef the parties |

garding contributory negligence, some other Lowa cai

will be next considered.

In aed case of Towberman v. Des Moines © ity Ry, Ce

(1927), 202 Towa 1299, 211 N. WL. SO4, the Court declare

(p- or x. Wo): We have many times stated the re

’ —

as to contributory negligence. It is well stated in Ban-

ning ¥. bh, R. i. & PL Ry. Co. 88 Towa 74. at page SI, 56

N. W. 277, 279. w here we said: ‘if the injured party con-

rit in any way, or in any degree directly to the in-

jury, “there ean be no recovery.”

In Hoegh ve See (1999), 215 Towa Tan, 246 No W. 787, .

the Court, after referring to the Towberman case, supra,

and quoting the above passage from the Banning case,

declared (p. 789 N. W.):

“That quotation in the Towberman case was

selected after a review of many decisions. We made

the selection because of our desire to present. the

quotation as a model for future instructions. Sach

model iater has been followed and approved. Stilson

. Ellis, 208 Towa 1157, 225 °N. W. 846: O'Hara vy.

Chaplin 211 Towa 404, 233 NL W. 516."

In Yance y. Hoskins (1938), 225 Towa 1108, 281 N. W.

489, 495, 118 A. L. R. 1186, the Court referred to and ap-

proved as a model, despite the appellant's contention that

the Court erred in using the word ‘directly’, the follow-

ing instruction (p. 494 N. Wo): . .

“Tt is a rule of law that one who is injured

through the fault or négligence 6f another cannot re-

cover for the damages oceasioned thereby, if he, by

any want of ordinary care on his part, contributed in

any way or in any degree directly to the injuries of

which he complains. And in this case, before the

plaintiff can recover, he must show that he did not,

by any negligence or want of ordinary care on his

part, in, any way or in any degree, contribute directly

to the injuries of which-he complains.’ "

~ In the case of Brewer vy. Johnson (1955), 247 Towa 483,

TN. W. 200556, the Court stated (p. 558 NL W. 2d):

“In damage actions based upon negligence, two

factors are always present. Actionable negligence

. / i.

exw RP ane

and contributory negligence. "2 * To be actionable.

the negligence must be a proximate cause ‘of tle

injury. * * * Contributory negligence is ‘any negli

gence upon the part of the Plaintiff whic h ‘eon

tributed in any way or any degree directly to the

injury’’ or damages sustained.’ * * * We think the

distinetion is well stated in) Pappas v. Evans, 24

Towa 804, 814, 48 N. W. 2d 298, 304, supra, where

quoting from Restatement of the Law, Tortsy Section

463, Comment (b), it is stated: ‘ ‘*Contributery ne

ligence differs from the negligence which subjects the

actor to liability for harm done to others in one in-

portant particular. Negligence ais conduct which

creates an undue risk of harm to others, Contributory

negligence is conduct Which involves an wnidue: risk

of harm to the person who sustains it. * * "°°"

While the Towa Supreme Court ‘has never clearly

pointed out the difference between negligence which isa

proximate cause of an injury and negligenee which cot-

tributes in any way or in any degree directly to the it

jury, it would ‘seem that the difference relates to causa!

relation. 3

In the: present case the burden was upon the polainci®

to establish. by a preponderance or greater weight of th

evidence that Kleppe was: free from any negligence W hic

contributed in any way or in any ‘degree directly to his

jnjury. It is the claim of the defendant that the ariel

did not do so, that hence the plaintiff has not establishe

that the defendant was liable to Kleppe, and that therefore

there was no common liability.

The only action on the part of- Kleppe that is pointed

to by the defendant as constituting corffibutory negligen

was Kleppe's attempt to loosen the stuck brakes by 1 waving

the ear. Kleppe testified that it was the ustial procedan

— &3

of trainmen to try to loosen stuck brake shoes m. the man-

ner attempted by him, and that stuck brake shoes could

“frequently be loosened in that way. While the fact that

such) procedure was usual is not determinative of the

question of contributory negligence on his part, this Court

is of the view that it cannot be said that) Klepyre, in ate

tempting to loosen the stuck brake shoes in the manner,

in Which he did, failed to exercise ordinary care for iis

own safety. | "

It is the view and finding of the Court that Kleppe Wis

freé from contributory negligence.

It is the holding of the Court. that the plaintiff and

the defendant were under a comnion liability to Kleppe.

Such being the situation, there is next to be considered the

questions whether the pk: intiff is entitled to indemnity or

contribution from the defendant,

The claim of the plaintiff for indemnity is) stated as

follows in its complaint:

“7. That in paying Kleppe the said Seventy Thou-

sand Dollars ($70,000.00) in settlement, ‘the. plaintiff

herein. Was discharging a secondary liability only, andl

that the primary liability and primary neglige nee Was

that of the defer want herein, in the follow: ny par-

ticulars:

(a) In hauling, or permitting to be hauled or

used on its line a car not equipped with efficient

hand brakes, and tendering sueh a ear to the

plaintiff for use of plaintiff's employees in vie-

lation of Section 11 of the Safety Appliance Act

(45 U.S. CA. Section 11).

(b) In tendering to the plaintHf for the use

of its employees a'car with a defective hand brake,

Without having made an inspection thereof,

a

ee ee

(c) In tendering to the plaintiff for the usetet

its employees a car with a defective hand brake

without having made repair thereof."*

The claim of the plaintiff for cout bution is stated as

follows:*

“4. That neither plaintit® nor defendant were quilts

of intentional wrong, moral turpitude or concerted

action and thecefore plaintiff is entitled te contribu

tien from the cefendant to the extent of one-half (' 2)

of what it has been compelled to pay.’

The defendant, in answer to the claim-of the plaintit

for indemnity, states:

“This defendant denies * * * that in making the

settlement with Kleppe and ino making, payment te

him, plaintit® was merely discharging a secondar)

~ fiability and alleges that plaintiff was under a prijuar

~ diability to Kleppe by reason of hauling and using ob

its ‘line of railroad a car with an inefficient and de

fective hand brake. This defendant: alleges that 4

was under no duty or obligation to Kleppe with re

spreet to the sated ear; that it had effected delivery of

the car to plaintiff? at Goldfield, Towa, and plaints

accepted the same before Kleppe Was injured se

In answer te the claim of the plaintiff for contribuatios

the defemlant states:

This defendant denies that plaintif® and cefendar’

Were joint Jort-feasors, and denies that both poliatti-

itt and defendant were negligent in failing &

proper inspection to discover the defective brake até

tnake proper repairs’ thereto. This defendant state

and alleges. that plaintiff was liable to B. L. Klepie

becanse the injuries were proximately caused by pleats

tit’. violation of the Federal Safety Appliance Act.’

that it hauled and used upon its line of railroad a ear

—

equipped with an inefficient and defective hand brake

as required by the Satety Appliance Act; that plaintitt

Was liable to said Bo L. Kleppe without regard to any

negligence or lack of negligence on its “ant SRT ae Taal

“This defendant * * * specifically states * * * that

this defendant was under no duty or obligation’ to

B. 1. Kleppe, or to plaintiff, with respect to the con

dition of said ear and the brake equipment thereot."*

The terminology used by the courts in stating the tests.

formulas, and rules applicable in cases in Which indemnity

is sought has in many cases made for confusion and ineon-

sisteney, See discussion, Davis, Indemnity Among Negli-

gent Tort-feasors: A Proposed Rationale, 37 lowa Law

Review 517, S39 8FF (1952). The courts most freque authy

employ the terms ‘taetive negligence’? and ‘passive neuli-

gence’. Tt would seem that the “active-passive negli-

gence’’ formula is a very slippery and elusive formula.

It is the one used in New York. The serious problems

aud difficulties encountered by the courts in that. state

in applying that formula are stated in the ease of Sobel

. City of New York (1958), 18 N.Y. S. aa 1, ey

ie also Falk v. © rvsta!l Hall, Inc. (1951), 105 NL YOS. 2d

6, 70, 71. Other courts have rents similar diffi-

culties. See Gulf, Mobile & Ohio R. Co. v. Arthur Dixon

Transfer Co. (1951), 343 I, App. 148, 98 ¥. Be 2d 783, 78s,

It has been noted that while tortions conduct involved in

one case is deemed to constitute active’ negligence. vet

the same tortious conduct in another case will be deerned

to constitute ** passive’? negligence. Davis, supra, p. O40,

It has also been pointed out that the presenee or absence

of motion on the part of a tort-feasor Ts wot determinative.

See Gulf, Mobile & Ohio R. Co, . Arthur Dixon Transfer

Vo, supra.

The Towa rule as to indemnity has been. considered by

the Iowa Supreme Court in a number of. eases, Among

—_= ae

such cases are: Hathaway v. Sioux City (1953 . 244 lowa

508, ST N. W. 2d 228: Weidert v. Monahan Post Legion. —

naire Club, Ine. (1952), 245 Lowa 643, 51 N. We 2d dom:

Rozmajzl v. Northland Greyhound Lines (1951), 242 Lowa

1135, 49 N. W. 2d 501; Hawley vo Davenport, Ro 1 &

N. W. Ry. Co. (1951), 242 lowa 17, 45 N.. We 2d ods; Cry

of Des Moines v. Barnes (1947), 228 lowa 112, 30 N. iv

Yd 170: Horrabin v. City of Des Moines (1924), 1s Lowa

a4, 199 N. W. 988, 38 A. L. R. 554; Sweet v. Atkinson

(1921), 191 Towa 645, 182 N. W. 793; City of Des Moine-

v. Des Moines Water Company (1920), Iss Towa 24, 175

N. W. 821; Pfarr v. Standard Oil bic (1914), 165 Lowa

657, 146° N. W. 851, L. Re os. T91SC, 356; Chicago & North-

western Ry. Co. v. Dunn (1882), 50 Lowa 61, 15 » a #

722; City of eee v. Parks (1876), 48 Towa 119. See

- Ford: Motor Company v. Mondragon (Sth Civ, Nove I)

1959), ... F. 2d 2... American District Telegraph Co. v.

Kittleson (Sth Cir. 1950), 179 F. 2d 946; Bolton v. Ziegler

(D.C. NX. D. Towa 1953), 111 FL Supp. 516, 5 ny! a2; Den-

ver-Chicago Trucking ok v. Lindeman (D.C. N. DL Tews

147), 73 F. Supp. 925, 992; City of Des Moines v. Pt

Asphalt Co. (D.C. S. D. ‘sian 1913), 208 F. S28; Towa

Home Mut. Cas. Co. v. cortege rs Mut. Hail Ins. Co. (1%).

237 lowan 183, 73 N. W. 2d 22, 26.

In the early lowa case of Chieago & Northwestern Ry.

Co. v. Dunn (1882), 59 Towa 619. 13 N. WL 722, the =

uation was that the plaintiff tailroad company had tert

held responsible for killing a third person's horse on

line under ain Towa fencing statute whieh imposed al

solute liability. The defendant, a farmer, had removed 4

gate in the defendant's right of way fenee and the her

in question had strayed onto the tracks. The Court beckd

that the plaintiff was entitled to indemnity, The Court in

its opinion stated that the defendant was guilty of an ae

tive wrong and that the plaintit? was guilty of a pratsaive

wrong.

— ‘

The Towa Court in its later opinions has made refercnee

to the aetive-pussive terminology employed in the ease of

Chicago & Northwestern Ry. Co. vo Dunn. supra. Tn the

recent case of Best v. Yerkes (1956), 247 lowa soo, 77

N.W. 2 23, GO ALL. Ro 2d 2354, the lewa Court stated

(p. BN. W. 2d):

“We have spoken of ‘active’ and ‘pas<ive’, ane of

‘primary’ and ‘secondary’, negligence. But the terms

aid littl, and in fact are often difficult to define.”

Clacns for indemnity in lowa have Arisemgout of many

different relationships and out of many different factual

situations. In some instances the claims arose in eases

Where the liability of the party seekiag indemnity was

purely constructive or derivative and thereswas ne per

sonal fault on the part of such.party. See Lowa Home

Mut. Cas. Co. vo Farmers Mut. Hail Ins. Co. (1955), 237

Towa 183, 73 NL W. 2d 22) where (p. 26 No W. 2d) the

Court states that it is in accord with Section 96, Restate-

tment of the Law, Restitution, whieh reads us follows:

“A person who, without personal fault, has become

subject te tort liability for the unantherized and

wrongful conduct of another, ix entitled te indemnity

from the other for expenditures property mide in the

discharge of sueh liability."

we

See also Best vo Yerkes (1956), 247 Towa 800, 77 No OW. 2

3.27. However, in instances in whieh a claim for in-

demnity is asserted and it appears that both the party

weking ivdemmity and the party from Who "indemnity

Was sought were both nilty of personal fant, the legal

situation hecomes .diffienlt. Tn seme of such eases the

lown Supreme Court has made use of the netive-passive

test and in others the primary and secondary liability

test. While the primary and secondary liability test is

net quite as baffling as the aetive-passive test, vet it still

leaves for solution the mitter of ascertaining which lia-

ame FEN

bility is primary and which is secondary. In the present

case the plaintiff, as noted, relies upon the primary-see-

ondary test. It is believed that a recent development in .

the lowa law may tend to throw some light on the question

of indemnity. :

Although the Iowa Supreme Court had never expressly

<o held, many members of the Towa bar and many Towa

trial judges had long assumed that there could be Ho con

tribution between joint tort-feasors. The judge of this

Court so assumed, Bolton v. Ziegler (D.C. N. 2D. Towa

1953), 111 F. Supp. 516, 522. The United States Court of

Appeals for this Cireuit also so astumed. American is.

trict Telegraph Co, v.-Kittleson (Sth Cir, 1950), 179 F.2d -

946, 951. However, in 1996, out of a clear judicial sky,

so to speak, the Towa Supreme Court made the prononice:

ment that ina proper situation contribution from one joint

fort-feasor to another conld be required. Best v. Yerkes

(1956), 247 Towa 800, 77 N. W. 2d 23, 60 A. L. R. 2d 1554.

See Comment.’ 42 Towa Law Review 450 (1957), and

Thomas, Contributien Between Joint Tort-Feasers As

Affected by the Yerkes Case, 6 Drake Law Review

(1956). .

Prior to the pronouncement of the Towa Supreme Court

in. Best v. Yerkes, supra, that there could be contribution

among coneurreat toert-feasors, a coneurrent tort-Teaser

who had discherged a common liability was, under the

Towa law. faced with an all-or-nothing situation. Bevan

of that situation, a coneurrent tort-feasor who had dis

charged the common liability but who was not free from

personal fault generally tried to fit his claim inte one of

the indemnity semantic cubicles, more generally the “ae

tive-passive’’ or ‘*primary-seeondary”’ eubicle, and. the

courts in Towa were continually being urged to allow 1

demnity upon the theory that the indemmity claimant had

suecessfubly fitted his claim into one of those euhieles. fh

many such cases the claimant, while unable to establish 4

rt . . ee ao <2

claim for indemnity, did establish a strong case ‘for eon-

tribution, but contribution was regarded as not) being

available. : °

In the case of Best vo Yerkes, supra, the Lowa Supreme

Court, in) pronouncing the rule allowing contribution

among concurrent tort-feasors, expressed its dissatistac-

tien (p. 28. N. W. 2d) with trying to work out justice be-

tween concurrent tort-feasors, both of whom were guilty

of personal fault, by means of indemnity alone and then

by means of confusing semantic fortinlas.

Because of the recent origin of the -lowa rule permit-

ting contribution among joint tort-feasors, there are few

Jowa cases bearing upon it. It was pronounced in Best vy.

Yerkes, supra. It was referred to in Van Tiger v. Hend-

ricks (1957); 2.2. Towa 2... 85.Ne W. 2d 045, 545. It was

*applied in the cases of Constantine vy. Scheidel (1958)...

lowa ..., 90 N. W. 2d 10. and Hawkeyve-Security Insur-

ance Company, Ine. v. Lowe Construction Co. (Nov. 17,

1959), ... Towa ..., 2... N. Wo 2d 2...) The present ap-

plieability and scope of the rule has to be ascertained

from the statements of the Lowa Supreme Court in its opin.

ims in the. cases: of Best ve Yerkes, supra, Constantine v.

Scheidel, supra, and Hawkeye-Sectrity Insurance Com-

pany, Ine. v. Lowe Construction Co., supra.

‘The case of Best. vy. Vorkes. supra, had to do with a.

mishap involving three motor vehicles which were being

operated at the time by Best, Yerkes and Cross. Best

brought an action against Yerkes to recover damages

tlaimed to have been sustained by him ‘as a result of the

latter's negligence, By leave of Court, Yerkes made Cross

@ cross-defendant and filed a cross-petition against -him

under Rule 33 (b) of the Towa Rules of Civil Procedure.

In his cross-petition Yerkes asked for indemnify or con-

tribution from Cross in eonnection with any judgment re-

covered by Best. The trial court later set aside the order

pa, Sa 7 Se

. e Ad

which breught in Cross as a defendant. The Lowa So

preme Court granted an interlocutory appeal from the

action of the trial court in setting aside the order as to

Cross. On appeal the Court held that under Rule 3 (1h)

of the Iowa Rules of Civil Procedure the matter of bring

ing in a third party defendant is addressed to the diser

tion of the Court and that no abuse of discretion was

shown. Before so holding, the Court discussed at length

the matter of contribution among tort-feasors. After re

ferring to the majority rule which denies contribution ay r

to the minority rule which permits contribution, the

Court stated (p. 28 N. W. 2d): .

“Consequently we conclude that the minority rule

which permits contribution or indemnity in negligence

eases has:the firmer foundation."

The Court further stated (p. 29 N. W. 2d):

‘Without extending this division of the opinion tur

ther by a discussion of the applicable reasoning aan

authorities, we are of the opinion that appellee | ‘ross

attempt to uphold the ruling of the trial court on the

theory that in no event could there be a recovery ever

by Yerkes must 1il. There is here no claim or show:

ing of an intentional wrong, or of moral turpitude or

any concerted’ action by the alleged tort-feasors. We

hold the trve rule to be that under such cireumestanees

there is at least a right of equitable contribution be-

tween them.’

It iy pointed out in the Comment, 42 Towa Law Revie w

-450 (1057), that the statements by the Court in Rest ©

Yerkes, supra, in regard to permitting contribution amens

joint tort-feasors were dicta... However, whether the st

ments constituted judicial dicta or obiter dicta is net new

material, for in the later cases of Constantine vo Sehet ‘ie!

supra, and Hawkeye-Seeurity Insurance Company, Ine.

Lowe Construction Co., supra, the Court followed ane

sytyre

y

|

applied the rule promeunecd. The ense of Constantine. v.

Secetuel, supra, will next be considered. In thet crise the

parties to the action were landlérd and tenant in relation

toa certain building. A professional window washer was

rune . hale Wishing tine M Pedorys of thre beratheli neg Dee ttises.

of oa defective Window fTarrie, Ile recovered daatiages

auninst the landloard for hiqginjurios. The landlord then

sought te recover indemnity or contribution from the

Tenant. and the ease involved that matter: The Conrt held

that, by reason. of the relationship between the parties,

both had breached a duty owing to the wimdew washer

concerning inspection of the window and disgever’ of ifs

defective condition. The Court stated (p. TSN. We 2d):

“Both the tenant and the landlord. were negligent -

in their duty toward the window washer * * * Ther:

isto claim: or showing that ‘these parties were euilty

of an intentional Wwreng ercof moral turpitude, or any

concerted action. * * *

There is littl: of a persnasive,

nature that one was more at fault, wrong or remiss

in his duty, than the other, so as te bar contribution

and permit: indemnity.** Hiniphasis supplied.)

In the present ease neither party was enilty of an inten-

tional wrong or moral turpitude. and ‘there was no eon-

certed action, There is **litth ofa persuasive nature that

one Was tore at fault, wrong or remiss’? than the other.

Both were etilty of negligence in the matter Of inspection

ane discovery, as were the peirtics in the ease of Constan-

tine y, Scheidel, supra, ‘It is the view and helding of the

Court that the situation in. the present case falls within

the scope and holditig of the ease of Constantine x.

Seheided, supra, and that the plaintiff is entitied te ean.

tribution but not indemnity,

The situafion as to-indemmity or contribution is net

Recessarily changed by the fact that one of the econeurrent

Tort-feasors may have been nnder a duty te,the injured

a

e >

Th

‘_- -

person to exercise a higher degree of care than the other

Do. Transit System, [ne v. Slingland (C°, AL DC 1,

26H F.2d 465, certiorari denied (Qet. 12, 1950), 2... US

ee SER oo... ... ML. Bd. 2d... Tn that: case a col

lision ene between a eemmon carrier bus and acl uited

States mail truck, and a passenger in the bus was injured.

The passenger recovered against the bus company. It

sought indenmity or contribution from the United States

The United States Courteof Appeals for the District of

Columbia held that it was a case for contribution rather

than indemnity notwithstanding the fact that the bus com:

pany was under a duty to exercise a higher degree of care

to the passenger than was the driver of the mail truck.

It added (p. 470 F. 2d) that neither the bus company per

the United States ** * * could be said to be tthe primary

or principal wrongdoer’ responsible for the whole loss.”

In the present case it cannot be said that either the

plaintiff or the defendant was the primary or principe.

wrongdoer or that the liability of either was primary er

secondary.

On November 17, 1959, the Towa Supreme Court handed

down its opinion in the case of Hawkeve-Seeurity [nsw

ance Company, Ine., v. Lowe Construction ©o., supra. i

that case a collision eceurred between a moter velice

operated by an einployee of one Nickol and a moter ve: hile

operated by one Mr. Levendecker in which Mrs. a.

decker was a passenger. Mr. Levendecker was killed av

Mrs. Leyvendecker received serious injuries as a result of

the collision. The Hawkeve Se ‘eurity Insurance, Companys

the instrance liability carrier of Nickol, settled the Leve!

decker claims. It then brought an action against the

Lowe Construction Company. In its petition tt alles

that the highway where the collision took pli we had beet

made slippery and hazardous by the negligence of Ur

ey

eniployees of the Lowe ¢ ‘onstruction Company in drepeits

a

st. clay and mud oon the travelled: portion any the high

Was, and that the collision and resulting injuries to the

Levendeckers were due to the combined negligence of the

ern plovees of its insured andl the eriplover.s of the Lowe

Construction Company. Ptoasked for contribution for one-

helt oat the cmennut patel by it in settlement of the Leven.

Hecker claims. The motion of the defendant Lowe Con-

Trrotion Company te dismiss for fathire te’ state a canse

of aetion Was overmled by the trialourt. Ati interloen-

ory appeal from that ruling was granted by the Towa’

Supreme Court, On appeal the ruling of the trial court

Was affirmed. The Lowa Supreme Court stated that it had

no desire to vetredt: from its decisions in’ Best veo Yerkes,

supra, and Constantine ©. Scheidel, supra,

The parties In the present cise discussed the well-known

ease of Union Stock Yards. Co. of Oniaha ve Chicago, :

B. & QQ. RCo. (1905), 196 UL S. 217, 25-8. Ct. 226, 49

TL. Bd. 453... Tie that case ane railroad delivered a car fo a

terminal railroad. The nat oon the brake-staff was not

fastened. An emplovee of the receiving railroad, while

Msing the brake, was thrown from the ear and sustatied

juries, He reeovered Judgment therefor against the

receiving railroad. After paving the judgment, the m-

ceiving raliroad bronzht an action against the délivering

railroad, The United States Supreme Court stated (p>. 228

ULS.): :

“Tn the present ease the negligence of the parties .

has been of the same character. Both the railroad Ri

many and the terminal company failed by proper ile

spection to discover the defect'¥e brake. The terminal

compeny, because of its fault, has been held liable t

ole sustaining an injury thereby. We do not think the

case comes within that exceptional class which permits

one wrongdoer who ims been muleted ‘in damnuges te

recover indemnity or contribution from another. «

- OF,

The decision in that case was long prior to the case ot ba

Railroad (to. ¥. Tompkins (1038), 3804 U.S. 64, os Ss. tT

sig, S82. L. Fal. 118s, me ‘Andromidas vo Thetsen Bros

(D.C. Neb. 1950), 94 FL Supp. 150. 104. Tn se tar as thr

case of Union Stock Yards Co. of Omaha v. Chieaso, B&Q

R. Co, supra, holds that indemnity hot permissible i

the situation there involved, it wougd

with the Lowa law as exemplified by the yase of Constantine

v. Scheidel, supra. In so far as it holds that contrittution

was not permissible in the situation there 4nvolved. it woud

eem to be tn aecera

seem not to be in accord with the present Lowa law. Sew

criticism of case,by the Towa Supreme Court in’ Best ¥

Yerkes, supra (p. 28 N. W. 2d). |. ie

In support of .its claim for indemnity the plaintit vites

and relies upon the case of Waylander-Peterson Co. ¥.

Great Northern Ry. Co. (Sth Cir. 1953), 201 F.2d 40s. The

opinions of the trial court in that case appear under the

name of Lawrence v. Great Northern Ry. Co. at 9s F. Supp.

746 (1951) and 109 F. Supp. 552 (1952) In that case the

Waylander-Peterson Company was under contract \ ith th

Minnesota State Highway Department, engaged im the re

building of a bridge over the tracks of the Great Norther.

Railway Company. Lawrenee, a switch foreman in the enh

ploy’ of the: railway tompany, was struck by a timber

which fell. from the bridge while he was walking under |

in connection with his duties as switeb foreman, [nat

action against the railway company, based on the Feder.

Employers* Liability Act, Lawrenve charged that the ile-

fendant was negligent in‘having failed to exereise ordinary

care to furnish him a safe place in which to work, avd!

covered a judgment for damages for the injuries sustained

when he was struck by the’timber. The railway company

then songht indemmity from Waylander-Peterson Compaiy:

Inaifnnity was granted by the trial court. Ou appeal ths

action of the trial court was affirmed. In that case it ay

peared that Wavlander- Peterson Company at the tine os

—

the wishap Was In eXEHISIve contrel of the part of the

priage trom Which The timber fell On appeal Way lander

Peterson Company contended that in any event it) wats

fiable only for contribution and not for indemnity. The

Court rejected that contention and hededo thet) urtder thi

Minnesota haw the railway company was entithed te inden

nity, In Its opinion if cited Jrmedyee Nordbye's Opinion, lw

Fo Sapp. 552, wherein Tadge Nordbye stated (p. 555):

“Here these parties were not in pari delicto. The

railway company had no control over the construction

of this bridge or of the workmen who were employed

thereon, The railway -company was required te oper-

ate its trains under the bridge and to direct its train-

nen to perform their duties in and about the bridge.

The repeated instances of timbers and debris falling

from the bridge, Which rendered the railway company

liable under the Federal Employers’ Liability Aet, was

a condition which the railway company did not create.

Its liability arose because of the non-delegable duty

Which ré@sted upen.it to exercise reasonable care te

furnish Lawrence a sate place to work. Any negligence

attributed to it so as to render it liable to Lawrenee

arose by the Wrongdoing of those in charge of the eon-

struction of this bridge

While, as noted, the "Winhionitn law was applic able i

that case, yet, under the circumstances there dise ‘Hosea, Pa

railway company would doubtless have-been entitled -to

inde munity under the Iowa law as well, However, it is the

View of the Court that that case is distinguishable from

the present case. In the present case the parties were in

pari delicto in that each was guilty of negligence in the

matter of inspection. and discovery of the defect. In- the

Present case it cannot be said that one was more at ‘fault.

thin the other, which was not the situation in the Minne-

sota Case,

— % —

It is the holding of the Court that under the lowa law

the plaintiff is entitled to contribution from the defendant

in connection with the Kleppe settlement. The right of one

entitled to contribution to recover interest is the subject

of an annotation. See 27 A. L. R. 2d 1268. It is clear from |

the eases there cited that the plaintiff is entitled to interest

at the legal rate from the date of payment to Kleppe.. In

lowa the legal rate is five per cent. Séction 535.2, Code of

lowa 1958, :

It Is Hereby Ordered that judgment be entered in favor

of the plaintiff and against the defendant for the sum of

Thirty-five Thousand and No 100 Dollars ($89,000.00) with

interest thereon at the rate of five per cent (O° ) per annum

from October 16th, 1956. j

it Is Further Ordered that the foregoing shall constitute

the findings of fact! conclusions of law and order for judg-

ment herein. Rule 52 (a), Federal Rules of Civil Procedure,

28 U.S.C. A. :

,s Henry N. Graven,

United States District Judge.