The opinion of the court was delivered by: Adair, District Judge.
This action having been tried by the court without a jury, the
court hereby makes the following findings of fact and conclusions
1. That the plaintiff is a corporation duly organized and
existing under and by virtue of the laws of the State of Delaware
and engaged in the common carriage by rail of freight, passengers
and mail in and between various states of the United States,
including the State of Illinois and the State of Iowa.
2. That on the first day of January, A.D. 1948, the plaintiff
succeeded to the rights and obligations theretofore held by and
enforceable against Joseph B. Fleming and Aaron Colnon, as
Trustees of the Estate of the Chicago, Rock Island, and Pacific
Railway Co., a corporation, by order of the District Court of the
United States, sitting in and for the Northern District of
Illinois the Eastern Division, said order being entered by the
Court on December 30, 1947, in the matter of the Chicago, Rock
Island and Pacific Railway Company, debtor, No. 53-209 on the
docket of said Court.
3. That on the 24th day of September, A.D. 1946, at
approximately 1:45 o'clock p.m. in the City of East Moline,
County of Rock Island, and State of Illinois, one Joseph Emerick,
an employee of the plaintiff, while acting within the scope of
his employment as a sectionhand and while standing near the
passenger depot in said City of East Moline, Illinois, was
injured when struck by a mail bag thrown from a westbound mail
car attached to a train of the plaintiff, by one C.W. Baird, an
employee of the defendant, who was then and there acting within
the scope of his employment as a railway postal clerk.
4. That at said time and place, the plaintiff and its employee,
Joseph Emerick, were in the exercise of due care and caution in
5. That at said time and place, the defendant, by and through
its employee, C.W. Baird, was guilty of negligence in throwing a
heavy mail bag from a fast moving train onto the station platform
where plaintiff's employee, Joseph Emerick, was standing, in
violation of the rules and regulations of both the United States
Postal Department and the Railway Company.
6. That the negligence of the defendant, by and through its
employee, C.W. Baird, was the active, direct, proximate and
primary cause of the injury to plaintiff's employee, Joseph
7. That the plaintiff and its employee were then and there
engaged in interstate commerce and that the plaintiff was placed
under a secondary legal liability to its employee, Joseph
Emerick, for the injury by him sustained.
8. That thereafter the plaintiff's employee, Joseph Emerick,
presented his claim to and against the plaintiff, which the
plaintiff compromised, adjusted, settled, and discharged on June
17, 1949, by paying to the said employee, Joseph Emerick, the sum
of $5,157 while the plaintiff was still under a secondary legal
liability to its said employee, Joseph Emerick, for the injury by
9. That the sum so paid was a just and reasonable amount for
the compensation of the injury so sustained and that the payment
of said sum was made in good faith and for the purpose of
discharging the secondary legal liability of the plaintiff to its
said employee, Joseph Emerick.
10. That the plaintiff also necessarily expended the further
sum of $225.55 for doctor, hospital, medical and ambulance costs
on behalf of its employee, Joseph Emerick, on account of the
injury by him so sustained.
12. That on November 4, 1946, the plaintiff made a due and
timely request and demand of the defendant that the said
secondary legal liability of plaintiff to its employee, Joseph
Emerick, be discharged by defendant and that plaintiff be
reimbursed for expenses incurred and to accrue as a result of the
defendant's active and primary negligence in the premises, but
that the defendant wholly failed, neglected and refused so to do,
and that thereupon, the plaintiff, on the 6th day of June, A.D.
1951, instituted this cause of action by filing its complaint in
the United States District Court for the Southern District ...