Ciosek v. Indiana Harbor Belt R. Co.

• Decision Date: 20 August 1979
• Docket Number: No. 79-169,79-169
• Citation: 31 Ill.Dec. 388,394 N.E.2d 590,75 Ill.App.3d 410
• Parties: , 31 Ill.Dec. 388 David A. CIOSEK, Plaintiff, v. INDIANA HARBOR BELT RAILROAD COMPANY, a corporation, Defendant- Counterclaimant-Appellant, and Ole Fredericksen and Son and John Fredericksen, Defendants- Counterdefendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 590

394 N.E.2d 590

75 Ill.App.3d 410, 31 Ill.Dec. 388

David A. CIOSEK, Plaintiff, v. INDIANA HARBOR BELT RAILROAD COMPANY, a corporation Defendant- Counterclaimant-Appellant and Ole Fredericksen and Son and John Fredericksen, Defendants- Counterdefendants- Appellees.

No. 79-169.

Appellate Court of Illinois, First District, First Division.

Aug. 20, 1979.

Anna M. Kelly, Chicago, for defendant-counterclaimant-appellant.

Pretzel, Stouffer, Nolan & Rooney, Chartered, Chicago (Robert Marc Chemers and Joseph B. Lederleitner, Chicago, of counsel), for defendants-counterdefendants-appellees.

O'CONNOR, Justice:

Plaintiff, David A. Ciosek, riding on the leading platform of a caboose of one of defendant Indiana Harbor Belt Railroad Company's (the railroad) moving trains, was injured when defendants Ole Fredericksen and Son and John Fredericksen (defendants) backed a truck into the side of the caboose. Plaintiff sued the railroad under the Federal Employers' Liability Act (FELA), alleging the failure to furnish a reasonably safe place to work, and the Fredericksens, alleging negligence in the operation of their truck. The railroad answered, denying liability, and filed a counterclaim against the Fredericksens for indemnity, alleging active acts of misconduct on their part and, if the railroad were held liable to plaintiff, passive acts of misconduct on its part. The trial court granted defendants' motion to dismiss the counterclaim, finding that it failed to state a cause of action for indemnity because the railroad failed to plead any of the "passive" acts and was seeking indemnity from a joint tortfeasor. The railroad appeals, asserting that its counterclaim stated a cause of action for indemnity. We agree.

Count I of plaintiff's complaint was directed against the railroad. It alleged: Plaintiff was employed by the railroad as a brakeman and was engaged in industrial switching at various plants. He and the conductor of the job were riding on the leading platform of a caboose of one of the railroad's trains. Defendants Fredericksen, backing a truck in the immediate vicinity of the track on which the train was moving, failed to stop and collided with the side of the caboose, injuring plaintiff. Both plaintiff and the railroad were subject to the FELA, under which the railroad owed plaintiff the duty to use ordinary care to furnish him with a reasonably safe place to work and to afford him other protections. Plaintiff was injured as a result of the railroad carelessly and negligently failing (a) to furnish plaintiff with a reasonably safe place to work, (b) to conduct its operations safely, (c) to keep a lookout, (d) to apply the air brakes, and (e) to prevent vehicles from operating in close proximity to the railroad's tracks.

Count II of plaintiff's complaint was directed against the Fredericksens. It alleged: Plaintiff was in the exercise of due care for his own safety at the time of the accident. The Fredericksens, backing a truck in the immediate vicinity of the track on which the train on which plaintiff was riding, failed to stop and collided with the side of the caboose, injuring plaintiff. It was their duty to exercise ordinary care in the operation of the truck to avoid colliding with the moving train and to avoid injuring plaintiff. Wholly disregarding their duty to plaintiff, they were negligent in operating their truck close to the railroad track and in failing (a) to keep a lookout, (b) to observe the approaching train, (c) to heed the whistle warnings, (d) to yield the right of way, and (e) to stop before the collision.

The counterclaim by the railroad against the Fredericksens alleged: Plaintiff has filed suit, alleging he was injured by the negligent conduct of the railroad while riding on the rear platform of a caboose of one of the railroad's trains; that the Fredericksens at that time owned and were operating a truck in connection with their business near the railroad's tracks and it was their duty to exercise due care in the operation of their truck for the safety of plaintiff. Without admitting any negligence on its part, the railroad states that in the event plaintiff's alleged injury was caused by any negligence, the Fredericksens were actively negligent in the specific ways set out in Count II of plaintiff's complaint. If the railroad violated any duty owed by it, which it denies, its violations were passive acts only, while the violations of the Fredericksens were the active acts of misconduct as above enumerated. In the event plaintiff is entitled to recover as a result of any negligence, the railroad is entitled to be indemnified by the Fredericksens for any judgment, costs or expenses recovered by plaintiff against the railroad, together with all costs, expenses and reasonable attorneys fees incurred in the defense of the original suit.

We hold that the trial court erroneously dismissed this counterclaim.

This case is concerned with implied indemnity, which as noted in Solar v. Dominick's Finer Foods, Inc. (1978), 65 Ill.App.3d 192, 22 Ill.Dec. 261, 382 N.E.2d 581, will soon become of historic value only. In that case, the court also stated (65 Ill.App.3d, at pp. 195, 196, 22 Ill.Dec., at pp. 263-64, 382 N.E.2d, at pp. 583-84):

"The courts of this State have traditionally denied contribution among persons jointly charged with the commission of a tort. This has given rise to application of the theory of implied indemnity conceived...