APPEAL from the Circuit Court of Fulton County; the Hon.
DANIEL J. ROBERTS, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 3, 1980.
This appeal arises from a judgment of the circuit court of Fulton County dismissing defendants-appellants' counterclaim against plaintiff-appellee. On June 3, 1974, plaintiff-appellee Michael Filker was driving his car west on Holly Street in Canton near the intersection of that street and the Burlington Northern railroad tracks. Riding as a passenger in Filker's car was plaintiff Josephine Jackson. Plaintiffs' complaint alleges that the crossing was out of repair and that when Filker's car reached the crossing, the undercarriage on the car violently struck the crossing. It is alleged that as a result, Jackson was thrown from the car and injured. As a result, Filker and Jackson sued Burlington Northern, Inc. (Burlington), and the City of Canton (Canton).
The defendants, Burlington and Canton, filed separate answers in which they denied the allegations of negligence. Later they each filed separate amended counterclaims against Filker, the driver of the car, seeking indemnity against Filker for any sums which might be adjudged against them. Filker moved to dismiss the counterclaims and, after a hearing, the trial court allowed the motion and entered judgment for counterdefendant Filker. The judgment order included a finding pursuant to Supreme Court Rule 304 that there was no just reason for delaying enforcement or appeal of the order and thereafter the appeal was perfected. The only issue on appeal is whether or not the amended counterclaims state a cause of action against the counterdefendant, Michael Filker. We affirm.
• 1 The order of dismissal having been entered upon allowance of the motion to dismiss filed by counterdefendant, all facts properly pleaded by the counterclaim must be taken as true. (Kendall v. Kendall (1978), 71 Ill.2d 374, 375 N.E.2d 1280.) Thus it must be taken as true for the purposes of this appeal that Filker drove his motor vehicle (a) at a speed in excess of that which was reasonable and proper and at a speed which endangered the safety of Josephine Jackson; (b) without observing the condition of the roadway as it crossed the railroad tracks and without keeping a safe and proper lookout for the condition of Holly Street; and (c) without keeping his vehicle under a safe or proper control.
On the basis of these facts, Burlington and Canton seek indemnity from Filker for any sums which they may be compelled to pay to Jackson on account of the charge that they had allowed the crossing to fall into disrepair. To warrant dismissal of defendants' counterclaims at the pleadings stage of the case, it must appear from the pleadings that "in no event" would the counterclaimants have an action against Filker. (Miller v. DeWitt (1967), 37 Ill.2d 273, 226 N.E.2d 630.) We believe that such is the case here.
Burlington and Canton seek indemnity on a theory of active-passive negligence. They argue that a jury might find that Filker was guilty of active or primary negligence and that defendants were guilty of passive or secondary negligence. They base this contention on the fact that Filker was driving a car over the tracks and therefore, if Filker is found to be negligent, then this is active negligence. They argue that, in contrast, the negligence charged against defendants is a failure to maintain the tracks and that, since it was inaction which created the condition, they are only guilty of passive negligence.
• 2, 3 The problem with this analysis is that a determination of active and passive negligence is not a matter of proceeding according to the usual dictionary definitions of the words "active" and "passive." These words are terms of art and must be applied in accordance with concepts worked out by courts> of review on a case-by-case basis. Under certain circumstances, inaction or passivity in the ordinary sense may well constitute active negligence. (Moody v. Chicago Transit Authority (1974), 17 Ill. App.3d 113, 307 N.E.2d 789.) We believe that where there is a duty to inspect and maintain railroad tracks and failure to perform this duty proximately causes injury to the plaintiff, such conduct must be considered active negligence.
• 4 This case was filed before Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 373 N.E.2d 437, which permitted contribution and, therefore, must be decided under the rule that contribution is nonexistent between joint tortfeasors. Under a rule of no contribution, indemnification may be permitted only where the facts of the case clearly justify it. (Carver v. Grossman (1973), 55 Ill.2d 507, 305 N.E.2d 161.) There can be no action for indemnity unless there is a qualitative distinction between the negligence of the two tortfeasors. Preston v. City of Chicago (1975), 34 Ill. App.3d 322, 340 N.E.2d 251.
• 5 In the instant case no such distinction exists. As discussed previously, if the jury should find that Burlington and Canton were negligent in failing to maintain the railroad tracks and this was a proximate cause of the injury, then this would have to be considered active negligence. As such there would be no qualitative distinction between it and any negligence the jury found on the part of the driver, Filker. Both parties' negligence would have proximately caused the injury. In the absence of a qualitative distinction, no action for indemnity can lie. Therefore, the trial court was correct in dismissing defendant's counterclaim for indemnity.
For the above-mentioned reasons the judgment of the circuit court of Fulton County is affirmed.
Mr. JUSTICE BARRY, dissenting:
I must dissent from the opinion of my colleagues because I believe that the defendants' third-party complaints against Filker should not have been ...