Appeal from the Circuit Court of Sangamon County; the Hon.
DEWITT S. CROW, Judge, presiding. Affirmed.
This action was instituted by the plaintiff, Chicago & Illinois Midland Railway Company, on the theory of indemnity to recoup $10,168.14 which it paid out to settle a claim asserted against it under the Federal Employers' Liability Act by an employee, Curtis Barron, who was injured when he tripped or stumbled over an old railroad tie lying on switch tracks owned by the defendant, Pillsbury Mills, Inc., while he was engaged in switching cars on the tracks.
The accident occurred on a layout of railroad switch tracks located on the property of and owned by the defendant, Pillsbury Mills, Inc. These switch tracks had been torn up and relaid and new ones installed only a short time before the accident pursuant to a contract for this and other construction work between the defendant, Pillsbury Mills, Inc., as owner, and the defendant, Evans Construction Co., a corporation, as general contractor. The necessary grading, excavating and ballasting was done by Krueger Construction Co., a corporation, under a subcontract and the new tracks were laid and the new ties furnished under a subcontract by Novelli Construction Co., a corporation.
Each of the defendants were sued separately in separate counts and all were sued jointly in the fifth count of the complaint as finally amended. For the sake of brevity, the defendants will hereafter be referred to as "Pillsbury," "Evans," "Krueger" and "Novelli."
The case was tried before the court without a jury and at the close of plaintiff's evidence the four defendants made separate motions for judgment. The court allowed the motion of Evans, Novelli and Krueger but denied Pillsbury's motion. At the close of all of the evidence, the court found in favor of the plaintiff and entered judgment against defendant, Pillsbury, for $10,168.14 and costs. From this judgment defendant Pillsbury appeals.
Prior to August 2, 1955, Evans was engaged as general contractor by Pillsbury to expand its business facilities in the City of Springfield, Illinois, by constructing some new warehouses. In connection with this project, it was necessary that some of the existing switch tracks be moved and relaid and additional new tracks built to provide railroad switching facilities into the new warehouses. All of the excavating, grading and establishment of levels for the new tracks was done by defendant, Krueger, under a subcontract, and all of the new ties were furnished and the new tracks laid by Novelli under a subcontract.
The work was completed sometime the latter part of July, 1955, and an inspection of the project was made by plaintiff's Chief Engineer, M.E. Peterson, along with a Mr. Loeb, Superintendent for Evans, and the foreman for Novelli, to ascertain whether the tracks were constructed according to plan and whether or not the tracks were safe for plaintiff's crew to start switching railroad cars to serve Pillsbury's warehouses. Following the inspection, Mr. Peterson made a report to the plaintiff railroad in which no footing hazards were observed. The exact date of this inspection was not established by the evidence, but Mr. Peterson testified that it was made the latter part of July and could have been as late as July 31st.
On the night of August 1, 1955, the plaintiff began to use the rehabilitated and new switch tracks for the purpose of switching loaded and unloaded box cars to and from Pillsbury's warehouses. To perform this service, a switch engine with an engineer, fireman and a crew of three switchmen were being used. About 4 o'clock on the morning of August 2, 1955, while switching boxcars on the switch tracks in question, Curtis Barron, foreman of the switching crew, alighted from a moving boxcar and stumbled over an old railroad tie lying on top of and across the rails of adjacent tracks and fell to the ground sustaining injuries. This old railroad tie was lying just south of a driveway across the switch tracks, which led from the south end of the scalehouse located to the west of the tracks. The old railroad ties that were removed from the switch tracks during the construction were piled up next to the scalehouse.
[1-3] Defendant first contends that the plaintiff failed to prove by a preponderance of the evidence that it was guilty of only passive negligence in allowing the condition to arise by which their employee was injured. The rule against indemnity between joint tort-feasors does not apply between parties where one is the active and primary wrongdoer and the other bears only a passive relationship to the cause of injury. Moroni v. Intrusion-Prepakt, Inc., 24 Ill. App.2d 534, 165 N.E.2d 346; John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331, 141 N.E. 739. A plaintiff may recover under the theory of implied indemnity from a third party for payment made by the plaintiff to its employee, pursuant to the Federal Employers' Liability Act, where the plaintiff is guilty only of passive negligence and the third party is guilty of active negligence causing the injury. Gulf, M. & O.R. Co. v. Arthur Dixon Transport Co., 343 Ill. App. 148, 98 N.E.2d 783. We believe that under the evidence adduced at the trial, the trial court properly found that the plaintiff, Chicago & Illinois Midland Railway Co., was guilty of no more than passive negligence by allowing the condition to arise which caused injury to its employee, Curtis Barron.
Defendant further argues that the plaintiff failed to prove by a preponderance of the evidence that the defendant, Pillsbury, was guilty of any negligence as charged against it in the second amended complaint, which proximately caused the injury sustained by the plaintiff's employee, Barron.
The second amended complaint under which the plaintiff seeks to recover alleges that the defendant: (a) Negligently and carelessly, through its employees, agents, servants and others it had employed for the maintenance and construction aforesaid, allowed a railroad tie to be placed alongside the track and in the pathway of plaintiff's employees who were engaged in serving defendant with loaded and empty cars. (b) Negligently and carelessly, through its employees, agents, servants and others it had employed for the said maintenance and construction allowed a railroad tie to be placed and remain in the path of plaintiff's employees who were engaged in serving the defendant with loaded and empty cars.
It is undisputed in the evidence that the railroad switch tracks here in question were owned by the defendant, Pillsbury, and were located on its land. It is also uncontradicted that plaintiff railway company, through and by its agents and employees, at the time of the injury in question was moving railroad cars over the tracks of the defendant for the purpose of servicing defendant's warehouses and was, therefore, a business invitee.
The law imposes upon the owner of premises a duty to exercise due care to keep such premises in a safe condition for business invitees. Ellguth v. Blackstone Hotel, Inc., 408 Ill. 343, 97 N.E.2d 290. A land owner is liable for injuries sustained on his premises by a business invitee as a result of the existence of an unsafe condition on the premises, which the land owner knows about or which he in the exercise of due care should have known about, and the duty to inspect premises to learn of dangerous conditions or defects cannot be shifted to the invitee. Blue v. St. Clair Country Club, 7 Ill.2d 359, 131 N.E.2d 31. The rule is well stated in Restatement of Torts, Vol II, sec 343(f):
"A possessor who holds his land open to others for his own business purposes, must possess and exercise a knowledge of the dangerous qualities of the place itself and the appliances ...