Before SCHNACKENBERG, HASTINGS and KNOCH, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
The Pennsylvania Railroad Company, plaintiff, sued Indiana Harbor Belt Railroad Company, defendant, under the indemnity and contribution provisions of an agreement between them for the joint use of certain tracks and right of way belonging to plaintiff, to recover expenses incurred and disbursements made by plaintiff in the defense, appeal and settlement of a lawsuit arising out of an accident occurring at the crossing of said tracks and right of way over 106th Street, in Chicago.
The case at bar was tried before the court sitting without a jury. A finding and a judgment were entered for defendant from which judgment this appeal has been taken.
The lawsuit was brought by Miriam Uzdzinski, in an Illinois state court, against plaintiff herein. On September 25, 1950, she was a passenger on a motorcycle proceeding easterly on 106th street and was accidentally injured by coming into contact with a crossing gate which was being lowered.
At all times relevant herein there was in force and effect said agreement between the parties to this case (originally executed by their predecessors) which included the following:
"3. In addition to the rental as above provided, each of the companies agrees to pay its proportion of the cost of operation and maintenance of said demised railroad and appurtenances; taxes and assessments on the demised property to be regarded as part of the expenses of operation and maintenance. The rental and expenses so to be paid by all parties using the demised railroad and appurtenances shall be paid by each party in the proportion that the car mileage of each party using the demised property bears to the car mileage of all parties using the demised property (it being understood that each engine shall count as two cars), and payment of said rental and expenses shall be made monthly upon draft of proper accounting officer, on or before the twenty-fifth day of each month succeeding the month for which bills for the proper proportion of said rental and of said expenses shall be presented.*fn1
"6. The trains of the various parties making use of the demised railroad and appurtenances shall be operated under the rules and regulations of * * * [plaintiff]."*fn2
In the following excerpts from paragraph 8 of said agreement, the word "plaintiff" is substituted for each reference to party of the first part, and the word "defendant" is substituted for each reference to parties of the second and third parts, who are defendant's predecessors.
The first sentence of paragraph 8 reads:
"* * * defendant * * * [assumes] all risk of loss, damage, or expense that may be inflicted upon * * * [it] * * * or in respect to * * * [its] * * * employes, passengers, or the property of other parties under * * * [its] * * * control, arising from any act or omission on the part of any officer, agent, or employe of * * * plaintiff * * * or the employes of * * * defendant * * * while on the track system, a right of joint use of which is hereby demised, and shall and will during the continuance of this agreement, save and keep the * * * plaintiff * * * harmless from any and all claims, demands, loss, or damage on account thereof."
The second sentence of paragraph 8 reads:
"* * * defendant * * * hereby * * * [assumes] all risk and all liability for injury or damage to persons, * * * caused by * * * [its] trains, cars, or locomotives, by reason of or growing out of * * * the failure to erect * * * gates, * * * at * * * street crossings in compliance with law, * * * or the erection or construction of * * * gates, * * * which do not fully conform to law, and * * * defendant shall and will * * * save ...