# Appendix — Chicago, Rock Island & Pacific Railroad v. Chicago & North Western Railway Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0702%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1961 - **Citation:** 364 U.S. 931 ## Text 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 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 * - — 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 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0702%3A3. Public record. Not legal advice.