Chicago & North Western Ry. Co. v. Chicago, RI & PR Co.

Decision Date07 December 1959
Docket NumberCiv. No. 793.
Citation179 F. Supp. 33
PartiesCHICAGO AND NORTH WESTERN RAILWAY COMPANY, Plaintiff, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Defendant.
CourtU.S. District Court — Northern District of Iowa

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Frank W. Davis, Ray H. Johnson, Jr., Davis, Huebner, Johnson, Herring & Burt, Des Moines, Iowa, Dwight G. Rider, Rider, Bastian & Beisser, Fort Dodge, Iowa, for plaintiff.

A. B. Howland, Des Moines, Iowa, John H. Mitchell, Mitchell, Mitchell & Murray, Fort Dodge, Iowa, for defendant.

GRAVEN, District Judge.

In this action the plaintiff, Chicago and North Western Railway Company, having paid $70,000 to one Kleppe, one of its brakemen, in settlement of his claim for injuries against it, asks indemnity or, in the alternative, contribution from the defendant, Chicago, Rock Island & Pacific Railroad Company. The injuries for which settlement was made were received in connection with the operation of a hand brake on a car owned by the defendant which at the time was on a transfer track at Goldfield, Iowa, used by the plaintiff and the defendant for the exchange of cars. Both parties are common carriers engaged in interstate commerce. Jurisdiction is based upon diversity of citizenship. The case was tried to the Court.

Goldfield, Iowa, was not a division point on either line, and neither the plaintiff nor the defendant maintained car inspectors there. At Goldfield the plaintiff's line ran, in general, north and south, and the defendant's line ran, in general, east and west. The lines of the plaintiff and the defendant intersected at substantially right angles. A curved transfer or interchange track connected the two lines. That track was west of the plaintiff's line and south of the defendant's line. The track was approximately 775 feet in length. The defendant was the owner of the upper, or northerly, 390 feet of the track, and the plaintiff was the owner of the balance.

At about 9:00 a. m. on February 5, 1955, a train crew of the defendant placed on the exchange track five cars which were destined for points on the plaintiff's line. The defendant maintained a station agent at Goldfield but, since February 5, 1955, was a Saturday, the agent was not on duty. The defendant's crew left the waybills for the cars in a box at the defendant's station. At 11:44 a. m. on February 5, 1955, a train of the plaintiff arrived at Goldfield from the south. The crew of that train had been instructed to pick up the five cars. Kleppe was a brakeman on that train. The other brakeman on the train, one Reynolds, secured the waybills 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 cars on the plaintiff's train. Reynolds and Kleppe were the brakemen in connection with that operation. They first released the air in the train lines of the five cars. On four of the cars, including the most northerly car, the hand brakes had been set. The most northerly car was a box car owned by the defendant, designated as Rock Island 262261. It had been loaded with farm implements in Illinois and was destined for a point in South Dakota. Its hand brake was located at the north end thereof, immediately below the roof of the car. The brake was of the ratchet type, in which a section of chain could be wound in or out of a housing for the purpose of applying or releasing the brakes. The ratchet was operated by a handle which hung down from a pivot on the housing. A couple of feet below the brake housing was a small platform for use by the person applying or releasing the brakes. Kleppe ascended to the platform for the purpose of releasing the brakes. Prior thereto the engine had been coupled onto the southernmost of the cars, all of which were coupled together. The engine had remained standing after coupling onto the southernmost car. Kleppe then attempted to release the brakes but was unable to do so. He then thought that if the car were placed in motion he could release the brakes. He signalled Reynolds, who was then by the engine, to move the cars. The engine proceeded to move the cars. As the cars began to move Kleppe pulled and continued to pull on the brake handle. After the cars had been moved fifteen to twenty feet the brake handle and part of the housing suddenly came loose, and Kleppe was precipitated to the ground and sustained injuries which were serious and permanent in nature. After the mishap it was discovered 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 cars onto the plaintiff's main line and then switched the car involved in the mishap back to the transfer track. The conductor of the plaintiff's train then placed the waybill for the car in the box at the defendant's station with a notation on it that it was a bad order car. Neither the defendant's station agent nor any of its other employees knew, until sometime afterwards, of the movement of the car by the plaintiff's crew immediately preceding the mishap. When the defendant's station agent at Goldfield came on duty on Monday morning, February 7, 1955, he found the waybill in the box. On the same day the car was hauled by the defendant to Iowa Falls, Iowa, where it was repaired.

Kleppe subsequently made known to the plaintiff that he was making claim against it for his injuries. The plaintiff tendered to the defendant the defense of Kleppe's claim. The tender was rejected and the defendant refused to participate in any settlement of Kleppe's claim. Kleppe handled his claim without the assistance of legal counsel. He negotiated a settlement for $70,000. On October 13, 1956, the plaintiff paid Kleppe that amount. The reasonableness of the settlement is not controverted by the defendant. The claim of Kleppe against the plaintiff was concededly based upon the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

In the present case the plaintiff makes claim for indemnity. In that connection it asks judgment against the defendant for the entire amount paid in settlement of the Kleppe claim. In the alternative, the plaintiff makes claim for contribution. In that connection it asks judgment against the defendant for one-half of the amount paid in settlement of the Kleppe claim.

It is the claim of the defendant that the question as to whether the plaintiff is or is not entitled to either indemnity or contribution is not reached in this case. The contention 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 connection the defendant urges that the plaintiff's claim is barred by 45 U.S.C.A. § 56, relating to actions brought under the Federal 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 rise to the claim against the plaintiff were sustained on February 5, 1955. The $70,000 in settlement was paid by the plaintiff to Kleppe on October 13, 1956. This action was commenced on May 18, 1958, more than three years after the injuries were sustained but less than three years after the payment was made to Kleppe in settlement of his injuries. There inheres in this contention of the defendant two theories: one, that the applicable statute of limitations is the one contained in the Federal Employers' Liability Act and, second, that a claim for indemnity or contribution accrues when injuries are sustained by the injured party.

It is well settled that the law of the place of the commission of the tort which gives rise to a claim for indemnity or contribution is the applicable law. Northwest Airlines, Inc. v. Glenn L. Martin Company, D.C.1958, 161 F. Supp. 452, and authorities cited. See Wade, Joint Tortfeasors And The Conflict of Laws, 6 Vanderbilt Law Review 464, 473 (1953). It seems clear that, even though liability for the tort committed was bottomed on and existed because of the Federal Employers' Liability Act, the right to indemnity or contribution is nevertheless governed by the applicable state law. Ft. Worth & Denver Railway Company v. Threadgill, 5 Cir., 1955, 228 F.2d 307, 312. See also Zontelli Brothers v. Northern Pacific Railway Co., 8 Cir., 1959, 263 F.2d 194, and Waylander-Peterson Co. v. Great Northern Ry. Co., 8 Cir., 1953, 201 F.2d 408, 37 A.L.R.2d 1399.

It appears to be well settled, as to a claim for indemnity or contribution, that the statute of limitations does not begin to run until the person seeking indemnity or contribution has paid the judgment rendered in favor of the injured person or has settled the claim. See Annotation, 20 A.L.R.2d 925. See also Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 Iowa Law Review 517, 538 (1952). In the recent case of Hawkeye-Security Insurance Company, Inc. v. Lowe Construction Co., Iowa, 1959, 99 N.W.2d 421, the Court declared that ordinarily the right to contribution becomes complete and enforceable only upon payment by the claimant which discharges more than his just share of the common obligation. A claim such as here involved is regarded as inchoate from the time of the creation of the relationship until one of the events referred to occurs. Zontelli Brothers v. Northern Pacific Railway Co., 8 Cir., 1959, 263 F.2d 194, 200.

It seems clear that as to the claim of the plaintiff herein the applicable statute of limitations is that of the State of Iowa and not the statute of limitations contained in the Federal Employers' Liability Act relied on by the defendant. It also seems clear that the plaintiff's claim for indemnity or contribution...

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