Chicago & I. M. Ry. Co. v. Evans Const. Co.

• Decision Date: 24 June 1965
• Docket Number: No. 38696,38696
• Citation: 32 Ill.2d 600,19 A.L.R.3d 921,208 N.E.2d 573
• Parties: , 19 A.L.R.3d 921 The CHICAGO AND ILLINOIS MIDLAND RAILWAY COMPANY, Appellee, v. EVANS CONSTRUCTION CO. et al. Appeal of PILLSBURY MILLS, INC.
• Court: Illinois Supreme Court

Page 573

208 N.E.2d 573

32 Ill.2d 600, 19 A.L.R.3d 921

The CHICAGO AND ILLINOIS MIDLAND RAILWAY COMPANY, Appellee, v. EVANS CONSTRUCTION CO. et al. Appeal of PILLSBURY MILLS, INC.

No. 38696.

Supreme Court of Illinois.

June 24, 1965.

Hershey & Bliss, Taylorville, and R. G. Heckenkamp, Springfield, for appellants.

Graham & Graham, and C. D. Forth, Springfield, for appellee.

SCHAEFER, Justice.

Curtis Barron, a switchman employed by the plaintiff, Chicago & Illinois Midland Railway Company, was injured in the course of switching operations on the premises of Pillsbury Mills, Inc., hereafter defendant. He asserted a claim against the plaintiff under the Federal Employers' Liability Act. The plaintiff settled the claim and then brought this action for indemnity. The trial judge found for the plaintiff and entered judgment against the defendant in the sum of $10,168.14, the amount of the settlement. The appellate court affirmed, (47 Ill.App.2d 373, 198 N.E.2d 126) and we granted leave to appeal.

Prior to the date of the accident, the defendant had entered into a contract with Evans Construction Co. for the construction of new warehouses, and for new and rehabilitated switch tracks to serve them. Evans entered into a subcontract with Krueger Construction Co. for grading, excavating and ballasting the bed of the tracks, and with Novelli Construction Co. for furnishing new ties and laying the tracks. This action was instituted against the defendant, its general contractor, and the two subcontractors. At the close of the plaintiff's evidence the trial court granted motions for judgment in favor of the general contractor and the two subcontractors, and at the close of all of the evidence entered judgment against the defendant.

The work in connection with the tracks was completed during the latter part of July of 1955 and an inspection was made by M. E. Peterson, the plaintiff's chief engineer, together with the president of Evans, (who had formerly been the plaintiff's chief engineer,) and a representative of Novelli, to determine whether the tracks were constructed according to specifications and whether they were safe for switching operations. Peterson testified that no footing hazards were observed during the course of his inspection, and that there were no loose ties lying around at that time. The exact date of the inspection was not established, but Peterson testified that the inspection could have been as late as July 31.

Operations over the new switch tracks began on the night of August 1, 1955. Curtis Barron was the foreman of the switching crew, and about four o'clock on the morning of August 2, he got off a moving box car and stumbled over an old railroad tie which lay on top of and across the rails of adjacent tracks. He fell, and sustained injuries. Some old railroad ties that had been removed in the course of reconstructing the switch tracks had been stacked on the south side of a scale house. Trucks bringing grain to the defendant drove from the adjacent street across some of the switch tracks, entered the north end of the scale house, were weighed and dumped, and then left the defendant's premises by a driveway that led from the south end of the scale house across the tracks and back to the adjacent street. The tie over which Barron stumbled was lying just south of the south driveway, about sixty to seventy-five feet from where the ties were stacked.

In any case involving a noncontractual claim of indemnity between tortfeasors, the indemnitee has, by hypothesis, violated a duty that he owed to a third party and has become liable to respond in damages for his breach of duty. By his action for indemnity he seeks to shift the loss to the indemnitor upon the theory that the indemnitor has also violated a duty that he owed to the third party. Particularly in jurisdictions like this one, in which contribution among joint tortfeasors is not allowed, (see Johnson v. Chicago and Pacific Elevator Co., 105 Ill. 462; Skala v. Lehon, 343 Ill. 602, 175 N.E. 832) it is necessary to draw a qualitative distinction between the negligence of the two tortfeasors if the action for indemnity is to succeed.

Efforts to evolve a capsule description that would embrace all situations in which indemnity should be allowed have not been notably successful. One of the leading cases, Inhabitants of Lowell v. Boston and Lowell Railroad Corp., 23 Pick (Mass.) 24, drew a distinction between conduct that is 'merely malum prohibitum and is in no respect immoral' on the one hand, and conduct that involves 'moral delinquency or turpitude' on the other. But the bulk of the cases in which the problem arises today are concerned with conduct that can hardly be said to involve moral delinquency or turpitude. Where indemnity has been allowed, the conduct of the indemnitor has sometimes been characterized as the primary cause of the harm, and that of the indemnitee has been described as a secondary cause. (See Standard Oil Co. v. Robins Dry Dock & Repair Co. (C.C.A.2, 1929 32 F.2d 182.) Most frequently, perhaps, the conduct of the indemnitee is described as passive negligence, and that of the indemnitor as active negligence. (See Gulf, Mobile and Ohio Railroad Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148, 98 N.E.2d 783.) A last clear chance doctrine, which makes the allowance of indemnity turn upon the time sequence of the conduct of indemnitor and indemnitee, has sometimes been employed. See Leflar, Contribution and Indemnity Between Joint Tortfeasors, 81 U. of Pa.L.Rev. 130, 151.

As often happens in the law, the general pattern of the decisions is not difficult to understand, although it is hard to evolve a description that will encompass all of the cases. The decisions primarily relied upon by the plaintiff are illustrative. In Gulf, Mobile and Ohio Railroad Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148, 98 N.E.2d 783, the railroad was allowed indemnification for the amount it was required to expend when one of its employees was caught between a railroad car and a truck which the defendant had parked too close to the track to allow room for clearance. In United States v. Chicago, Rock Island & Pacific Railway Co., 10 Cir., 171 F.2d 377, the railroad was allowed indemnity for amounts paid to an employee who was injured when his foot was caught between the footboard of the engine and a pile of hardened black top material which the defendant permitted to accumulate immediately adjacent to the track. In Moroni v. Prepakt, Inc., 24 Ill.App.2d 534, 165 N.E.2d 346, the railroad had contracted for construction work upon its property, and an employee of the contract was injured, allegedly by reason of a violation of the Scaffold Act. The railroad's third party complaint for indemnity against the contractor was sustained against a motion to dismiss, upon the ground that the contractor was the 'active and primary' wrongdoer and upon the basis of an implied contract of indemnity. In Standard Oil Co. v....