Castle, Chief Judge, and Schnackenberg and Swygert, Circuit Judges.
The plaintiff-appellant, Chicago, Burlington & Quincy Railroad Company, brought this action in the District Court seeking indemnification by the defendant-appellee, Admiral-Merchants Motor Freight, Incorporated, for amounts paid by the railroad in settling an Illinois wrongful death action and a property damage claim arising out of a side-of-the-train collision between a motor truck operated by Admiral and a freight train operated by the railroad. The District Court struck the railroad's amended complaint on the ground that it failed to state a claim upon which relief could be granted.*fn1 The railroad appealed.
The railroad's amended complaint alleges, inter alia, that the railroad paid $15,000 in settlement of a $30,000 judgment entered against it in an action brought by the administrator of the estate of John S. Utterback for the wrongful death of Utterback, an employee of Admiral-Merchants, who was instantly killed when the defendant Admiral-Merchants' west-bound tractor-trailer driven by Utterback's co-employee, Frank J. Coffey, collided with the railroad's east-bound freight train at a grade crossing with Illinois Highway 92 near Ohio, Illinois, at about 3:30 a.m. on February 2, 1962; and that the railroad also paid $10,000 in settlement of a property damage claim by Hiram Walker Company for cargo destroyed as a result of the collision.
The complaint further alleges that some eight hours before the collision, the railroad's signal lights in the southeast quadrant of the crossing were observed by another truck driver to be dark during the passage of the rear portions of an earlier train but that "the negligence of the Chicago, Burlington & Quincy Railroad Company, as found by the jury [in the Utterback action], in failing to discover that its signal light was not burning in the southeast quadrant of the crossing, was technical, in that the presence of the moving train was its own notice of danger, and said negligence was, therefore, passive and secondary"; and sets forth that Admiral-Merchants was guilty of negligence in several particulars in the operation of its truck, and as a direct result of such negligence the collision was caused to happen.*fn2 The acts of negligence the complaint charges to Admiral-Merchants, based on the alleged conduct of its driver, Coffey, are alleged to be active and primary in nature.
On the basis that its negligence was merely technical or passive in nature the railroad contends that its amended complaint, under Illinois law, states a claim for indemnity from Admiral-Merchants whose negligent acts are alleged to have been active or primary, and that, therefore, the District Court erred in striking or dismissing the amended complaint.
Under Illinois law contribution between or among joint tortfeasors is not ordinarily allowed. Consequently, a suit by one joint tortfeasor against another for indemnity generally fails, and "it is necessary to draw a qualitative distinction between the negligence of the two tortfeasors if the action for indemnity is to succeed". Chicago & Illinois Midland Ry. v. Evans Construction Co., 32 Ill.2d 600, 603, 208 N.E.2d 573, 574. Thus, in Spivack v. Hara, 69 Ill.App.2d 22, 24, 216 N.E.2d 173, 174, it is observed:
"To combat the harshness of a rule prohibiting contribution among tortfeasors in all cases, Illinois courts have developed certain exceptions where indemnity is allowed. In general these exceptions arise where the party seeking indemnity has been guilty of only 'legal' or 'technical' negligence, while the indemnitor has committed the 'active' or 'primary' negligence."
Also pertinent here is Chapman v. Baltimore & Ohio R. Co., 340 Ill.App. 475, 491, 92 N.E.2d 466, 472, where it was held:
"* * * the omission or nonoperation of signals, required or customarily given to indicate the approach of a train to the crossing, is equivalent to an assurance by the railroad that no train is in fact approaching and constitutes an invitation by the railroad to travelers on the highway to proceed toward and over the crossing."
The above characterization of the effect of failure to keep railroad crossing signal lights operative is especially apt in view of the allegation of the railroad's amended complaint that both Coffey and Utterback were familiar with the crossing. In this connection, in Langston v. Chicago & N.W. Ry. Co., 398 Ill. 248, 255, 75 N.E.2d 363, 366, a case involving a side-of-the-train collision which occurred at a time when the flashing light signals at a crossing were not operating, it is stated:
"It appearing * * * that the appellant undertook to furnish a certain method of warning the public when a train was approaching or on the crossing, and the driver of the car being familiar with this method of warning, it cannot be said, under the facts, that as a matter of law there was no negligence upon the part of the railroad company."
In the face of its own allegation that the jury in the Utterback case found it negligent "in failing to discover that its signal light was not burning" and its further allegation that the light had been observed to be "dark" some eight hours prior to the collision, the railroad argues that the darkened warning signal was merely a prior condition and not an active cause of the collision which resulted in the death of Utterback and the destruction of cargo the truck was carrying. But, in our opinion, the breach of duty on the part of the railroad to keep operative the warning signal it had undertaken to furnish was more than a passive type of negligence. True it was an act of omission but that does not derogate from its character as active negligence and a proximate cause of the collision. Under the circumstances the railroad alleges the nonoperation of the warning signal light was an indication that any passing train had cleared the crossing, and under the doctrine of Langston and Chapman, supra, an assurance by the railroad to that effect and an invitation to oncoming traffic to proceed over the crossing. And "assurance" and "invitation" are more than passive conduct.
The railroad's reliance upon cases such as Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630, and Moroni v. Intrusion-Prepakt, Inc., 24 Ill.App.2d 534, 165 N.E.2d 346, is inapposite. They involve an indemnity sought from the party actually and primarily at fault where liability for the damage caused thereby is imposed on the indemnitee solely because he is an "owner" or occupies an "in charge of the work" status as that concept is used in the Illinois Scaffolding Act (Ill.Rev.Stat. ch. 48, § 60 et seq.). But here, that the railroad participated in active negligence which was a proximate cause of the death of Utterback (and of the cargo damage for which the railroad made settlement) is ...