A railroad company delivered a car with imperfect brakes to a
terminal company; both companies failed to discover the defect,
which could have been done by proper inspection; an employee of the
terminal company, who
Page 196 U. S. 218
was injured as a direct result of the defective brake, sued the
terminal company alone and recovered. In an action brought by the
terminal company against the railroad company for the amount paid
under the judgment,
held that:
As both companies were wrongdoers, and were guilty of a like
neglect of duty in failing to properly inspect the car before
putting it in use, the fact that such duty was first required of
the railroad company did not bring the case within the exceptional
rule which permits one wrongdoer, who has been mulcted in damages,
to recover indemnity or contribution from another, on the ground
that the latter was primarily responsible.
This case comes here on the certificate of the United States
Circuit Court of Appeals for the Eighth Circuit. The facts embodied
therein are: the circuit court of the United States, sitting at
Omaha, Neb., sustained a demurrer to the petition of the plaintiff
in error against the defendant in error. The facts stated in the
petition, in substance, are as follows:
"The plaintiff, the stockyards company, is a corporation which
owns stockyards at South Omaha, Nebraska, railroad tracks
appurtenant thereto, and motive power to operate cars for the
purpose of switching them to their ultimate destinations in its
yards from a transfer track which connects its tracks with the
railways of the defendant, the Burlington company. The Burlington
company, is a railroad corporation engaged in the business of a
common carrier of freight and passengers. The defendant places the
cars destined for points in the plaintiff's yards on the transfer
track adjacent to the premises of the plaintiff, and the latter
hauls them to their points of destination in its yards for a fixed
compensation, which is paid to it by the defendant. The plaintiff
receives no part of the charge to the shipper for the
transportation of the cars, but the defendant contracts with the
shipper to deliver the cars to their places of ultimate destination
in the plaintiff's yards, and receives from the shipper the
compensation therefor. The defendant delivered to the plaintiff
upon the transfer track a refrigerator car of the Hammond Packing
Company, used by the defendant to transport the meats of that
company, to be delivered to that company by the plaintiff in its
stockyards. This car was in bad order, in
Page 196 U. S. 219
that the nut above the wheel upon the brake staff was not
fastened to the staff, although it covered the top of the staff,
and rested on the wheel as though it was fastened thereto, and this
defect was discoverable upon reasonable inspection. The plaintiff
undertook to deliver the car to the Hammond company, and sent
Edward Goodwin, one of its servants, upon it for that purpose, who,
by reason of this defect, was thrown from the car and injured while
he was in the discharge of his duty. He sued the plaintiff, and
recovered a judgment in one of the district courts of Nebraska for
the damages which he sustained by his fall, on the ground that it
was caused by the negligence of the stockyards company in the
discharge of its duty of inspection to its employee. This judgment
was subsequently affirmed by the Supreme Court of Nebraska,
Union Stock-Yards Co. v. Goodwin, 57 Neb. 138, and was
paid by the plaintiff."
Upon this certificate, the circuit court of appeals propounds
the following question:
"Is a railroad company which delivers a car in bad order to a
terminal company, that is under contract to deliver it to its
ultimate destination on its premises for a fixed compensation, to
be paid to it by the railroad company, liable to the terminal
company for the damages which the latter has been compelled to pay
to one of its employees on account of injuries he sustained while
in the customary discharge of his duty of operating the car, by
reason of the defect in it, in a case in which the defect is
discoverable upon reasonable inspection? "
Page 196 U. S. 222
MR. JUSTICE DAY delivered the opinion of the Court.
We take it that this inquiry must be read in the light of the
statement accompanying it. While instruction is asked broadly as to
the liability of the railroad company to the terminal company, for
damages which the latter has been compelled to pay to one of its
own employees on account of injuries sustained, it is doubtless
meant to limit the inquiry to cases wherein such recovery was had
because of the established negligence of the terminal company in
the performance of the specific duty stated, and which it owed to
the employee. For it must be taken as settled that the terminal
company was guilty of negligence after it received the car in
question, in failing to perform the duty of inspection required of
it as to its own employee. The case referred to in the certificate,
Union Stock-Yards Co. v. Goodwin, 57 Neb. 138, is a final
adjudication between the terminal company and the employee,
Page 196 U. S. 223
and it therein appears that the liability of the company was
based upon the defective character of the brake, which defect a
reasonably careful inspection by a competent inspector would have
revealed, and it was held that in permitting the employee to use
the car without discovering the defect the company was rendered
liable to him for the damages sustained. We have, therefore, a case
in which the question of the plaintiff's negligence has been
established by a competent tribunal, and the inquiry here is may
the terminal company recover contribution, or, more strictly
speaking, indemnity, from the railroad company because of the
damages which it has been compelled to pay under the circumstances
stated?
Nor is the question to be complicated by a decision of the
liability of the railroad company to the employee of the terminal
company, had the latter seen fit to bring the action against the
railroad company alone, or against both companies jointly. There
seems to be a diversity of holding upon the subject of the railroad
company's liability under such circumstances, in courts of high
authority.
In
Moon v. Northern Pacific Railroad Company, 46 Minn.
106, and
Pennsylvania Railroad Company v. Snyder, 55 Ohio
St. 342, it was held that a railroad company was liable to an
employee of the receiving company who had been injured on the
defective car while in the employ of the latter company when, under
a traffic arrangement between the companies, the delivering company
had undertaken to inspect the cars upon delivery, and, as in the
Moon case, where there was a joint inspection by the
inspectors of both companies. This upon the theory that the
negligence of the delivering company, when it was bound to inspect
before delivery, was the primary cause of the injury,
notwithstanding the receiving company was also guilty of an
omission to inspect the car before permitting an employee to use
the same.
A different view was taken in the case of
Glynn v. Central
R. Co., 175 Mass. 510, in which the opinion was delivered by
MR. JUSTICE HOLMES, then Chief Justice of Massachusetts,
Page 196 U. S. 224
in which it was held that, as the car, after coming into the
hands of the receiving company, and before it had reached the place
of the accident, had crossed a point at which it should have been
inspected, the liability of the delivering company for the defect
in the car, which ought to have been discovered upon inspection by
the receiving company, was at an end. A like view was taken by the
Supreme Court of Kansas in the case of
M., K. & T. R. Co.
v. Merrill, 65 Kan. 436, reversing its former decision in the
same case reported in 61 Kan. 671. But we do not deem the
determination of this question necessary to a decision of the
present case.
Coming to the very question to be determined here, the general
principle of law is well settled that one of several wrongdoers
cannot recover against another wrongdoer, although he may have been
compelled to pay all the damages for the wrong done. In many
instances, however, cases have been taken out of this general rule,
and it has been held inoperative in order that the ultimate loss
may be visited upon the principal wrongdoer, who is made to respond
for all the damages, where one less culpable, although legally
liable to third persons, may escape the payment of damages assessed
against him by putting the ultimate loss upon the one principally
responsible for the injury done. These cases have, perhaps, their
principal illustration in that class wherein municipalities have
been held responsible for injuries to persons lawfully using the
streets in a city, because of defects in the streets or sidewalks
caused by the negligence or active fault of a property owner. In
such cases, where the municipality has been called upon to respond
because of its legal duty to keep public highways open and free
from nuisances, a recovery over has been permitted for indemnity
against the property owner, the principal wrongdoer, whose
negligence was the real cause of the injury.
Of this class of cases in
Washington Gas Light Co. v.
District of Columbia, 161 U. S. 316, in
which a resident of the City of Washington had been injured by an
open gas box, placed and
Page 196 U. S. 225
maintained on the sidewalk by the gas company, for its benefit.
The District was sued for damages, and, after notice to the gas
company to appear and defend, damages were awarded against the
District, and it was held that there might be a recovery by the
District against the gas company for the amount of damages which
the former had been compelled to pay. Many of the cases were
reviewed in the opinion of the court, and the general principle was
recognized that, notwithstanding the negligence of one, for which
he has been held to respond, he may recover against the principal
delinquent where the offense did not involve moral turpitude, in
which case there could be no recovery, but was merely
malum
prohibitum, and the law would inquire into the real
delinquency of the parties, and place the ultimate liability upon
him whose fault had been the primary cause of the injury. The same
principle has been recognized in the Court of Appeals of the State
of New York in
Oceanic Steam Nav. Co. v. Compania
Transatlantica Espanola, 134 N.Y. 461, the second proposition
of the syllabus of the case being:
"Where therefore a person has been compelled, by the judgment of
a court having jurisdiction, to pay damages caused by the
negligence of another, which ought to have been paid by the
wrongdoer, he may recover of the latter the amount so paid, unless
he was a party to the wrong which caused the damage."
In a case cited and much relied upon at the bar,
Gray v.
Boston Gas Light Co., 114 Mass. 149, a telegraph wire was
fastened to the plaintiff's chimney without his consent, and, the
weight of the wire having pulled the chimney over into the street,
to the injury of a passing traveler, an action was brought against
the property owner for damages, and notice was duly given to the
gas company, which refused to defend. Having settled the damages at
a figure which the court thought reasonable, the property owner
brought suit against the gas company, and it was held liable. In
the opinion the court said:
Page 196 U. S. 226
"When two parties, acting together, commit an illegal or
wrongful act, the party who is held responsible in damages for the
act cannot have indemnity or contribution from the other, because
both are equally culpable or
participes criminis, and the
damage results from their joint offense. This rule does not apply
when one does the act or creates the nuisance, and the other does
not join therein, but is thereby exposed to liability and suffers
damage. He may recover from the party whose wrongful act has thus
exposed him. In such case, the parties are not
in pari
delicto as to each other, though, as to third persons, either
may be held liable."
In a later case in Massachusetts,
Boston Woven Hose &
Rubber Co. v. Kendall, 178 Mass. 232, it was held that a
manufacturer of an iron boiler known as a vulcanizer, which had
been furnished upon an order which required a boiler which would
stand a pressure of one hundred pounds to the square inch, which
order was accordingly accepted, the manufacturer undertaking to
make the boiler in a good and workmanlike manner, but which,
because of a defect, in that the hinge of the door was constructed
in such a way that it did not press tight enough against the face
of the boiler to stand a pressure of 75 pounds, at which pressure
the packing blew out and allowed the naphtha vapor to escape, was
liable for the damages which the hose company had been compelled to
pay to one of its employees, injured by the accident, although the
defect might have been discovered upon reasonable inspection by the
hose company. In that case, the boiler was sold upon a warranty. As
was said by Mr. Chief Justice Holmes, delivering the opinion of the
court:
"The very purpose of the warranty was that the boiler should be
used in the plaintiff's works with reliance upon the defendant's
judgment in a matter as to which the defendants were experts and
the plaintiff presumably was not. Whether the false warranty be
called a tort or a breach of contract, the consequences which
ensued must be taken to have been contemplated, and were not too
remote. The fact that the reliance
Page 196 U. S. 227
was not justified as toward the men does not do away with the
fact that the defendants invited it, with notice of what might be
the consequences if it should be misplaced, and there is no policy
of the law opposed to their being held to make their
representations good."
Other cases might be cited which are applications of the
exception engrafted upon the general rule of noncontribution among
wrongdoers, holding that the law will inquire into the facts of a
case of the character shown, with a view to fastening the ultimate
liability upon the one whose wrong has been primarily responsible
for the injury sustained. In the present case, there is nothing in
the facts as stated to show that any negligence or misconduct of
the railroad company caused the defect in the car which resulted in
the injury to the brakeman. That company received the car from its
owner, the Hammond Packing Company, whether in good order or not
the record does not disclose. It is true that a railroad company
owes a duty of inspection to its employees as to cars received from
other companies as well as to those which it may own.
Baltimore
& Potomac Railroad Co. v. Mackey, 157 U.
S. 73. But in the present case, the omission of duty for
which the railroad company was sought to be held was the failure to
inspect the car with such reasonable diligence as would have
discovered the defect in it. It may be conceded that, the railroad
company having a contract with the terminal company to receive and
transport the cars furnished, it was bound to use reasonable
diligence to see that the cars were turned over in good order, and
a discharge of this duty required an inspection of the cars by the
railroad company upon delivery to the terminal company. But that
the terminal company owed a similar duty to its employees, and
neglected to perform the same, to the injury of an employee, has
been established by the decision of the Supreme Court of Nebraska,
already referred to.
The case then stands in this wise: the railroad company and the
terminal company have been guilty of a like neglect of duty in
failing to properly inspect the car before putting it in
Page 196 U. S. 228
use by those who might be injured thereby. We do not perceive
that, because the duty of inspection was first required from the
railroad company, that the case is thereby brought within the class
which hold the one primarily responsible, as the real cause of the
injury, liable to another less culpable, who may have been held to
respond for damages for the injury inflicted. It is not like the
case of the one who creates a nuisance in the public streets; or
who furnishes a defective dock, or the case of the gas company,
where it created the condition of unsafety by its own wrongful act;
or the case of the defective boiler, which blew out because it
would not stand the pressure warranted by the manufacturer. In all
these cases, the wrongful act of the one held finally liable
created the unsafe or dangerous condition from which the injury
resulted. The principal and moving cause, resulting in the injury
sustained, was the act of the first wrongdoer, and the other has
been held liable to third persons for failing to discover or
correct the defect caused by the positive act of the other.
In the present case, the negligence of the parties has been of
the same character. Both the railroad company and the terminal
company failed, by proper inspection, to discover the defective
brake. The terminal company, because of its fault, has been held
liable to one sustaining an injury thereby. We do not think the
case comes within that exceptional class which permits one
wrongdoer who has been mulcted in damages to recover indemnity or
contribution from another.
For the reasons stated, the question propounded will be answered
in the negative.
