Before BIGGS, Chief Judge, and MARIS and HARLAN, Circuit Judges.
The defendant, Alpha Portland Cement Company, appeals from a judgment entered against it in the United States District Court for the Eastern District of Pennsylvania in favor of the plaintiff, Baltimore and Ohio Railroad Company, in the sum of $36,517.89 to indemnify the plaintiff for sums paid by it in a compromise settlement of a claim of Ralph E. Miller, one of its employees. Miller, a brakeman, was injured in a derailmemt of plaintiff's freight train on a siding located on defendant's premises at Manheim, West Virginia. The plaintiff alleged that the defendant had breached its contractual duty to maintain the sidetrack in a safe condition and that it sustained loss by reason of such default and is entitled to indemnity therefor. The plaintiff's claim is based upon a sidetrack agreement between the parties dated November 1, 1923, the pertinent provisions of which are as follows:
"Second Party [Alpha Portland Cement Company] to own and maintain the remainder of tracks as existing or as re-located.
"4. If Second Party should fail to maintain in reasonably safe condition that portion of the siding which it is required to maintain, the Railroad shall have the right to disconnect the track or refuse to operate over it when not in safe condition."
"The Second Party also agrees to indemnify and hold harmless the Railroad for loss, damage, or injury from any act or omission of the Second Party, its employes or agents to the person or property of the parties hereto and their employes, and to the person or property of any other person or corporation, while on or about said track - ; and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto it shall be borne by them equally."
Trial was had without a jury. The trial judge found the facts to be as follows:
On the morning of February 12, 1948 a freight train containing a box car destined for defendant's loading platform had proceeded on plaintiff's main track in a westerly direction to a switch west of defendant's plant where four cars and the engine were switched to defendant's sidetrack and were then pushed in an easterly direction on that sidetrack toward defendant's loading platform. Miller was riding the box car, which was in the lead, standing on the ladder on the front end and right side of the car and looking out for trucks which might be approaching a crossing where a road within defendant's plant and used solely by its trucks went over the siding. This crossing did not have any planking but there was an accumulation of frozen mud and ice there, as high or higher than the rails, which had been created by defendant's trucks which used the crossing. There had been snow on the ground for several days and there was evidence that a light snow had fallen that morning. As he approached the crossing riding the lead car Miller, exercising due care, noticed nothing unusual there, merely a thin layer of snow and ice. As the lead car went over the crossing the wheels of its front truck were derailed by the frozen mud and ice adjacent to the rails, the car veered to the right and Miller was crushed between the car and a concrete building adjacent to the track.
The defendant was notified of the accident. On January 25, 1951 Miller commenced an action against his employer, the plaintiff, in the United States District Court for the District of Maryland under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., averring that the plaintiff had not furnished him with a safe place to work and that as a result of the derailment he suffered severe and permanent injuries. The plaintiff notified the defendant of the pending action but the defendant denied liability. The plaintiff compromised the claim by payment of $25,000 plus medical expenses. There is no suggestion that the settlement was not made in good faith, that the amount was not fair and reasonable or that the plaintiff was not legally liable to Miller.
The trial judge concluded that Miller's injuries resulted from the negligence of the defendant both in creating the unsafe condition and in failing to remedy it as required by the sidetrack agreement. He further concluded that the plaintiff was guilty of no active or primary negligence, its negligence, on the basis of which it settled Miller's suit, being merely the breach of its nondelegable duty to furnish a safe place for its employee to work, even though the place became unsafe through the act of a third party and without fault on its part. The trial judge accordingly concluded that under the indemnity clause of the agreement the plaintiff was entitled to full indemnity from the defendant for the amount which it had paid Miller, and not merely for contribution as a joint tort-feasor. Judgment was thereupon entered in favor of the plaintiff for the full amount of its claim. This appeal followed.
Upon this appeal the defendant concedes that the evidence supports the finding of the trial judge that it was guilty of active negligence. It urges, however, that the trial judge erred in finding that the plaintiff was guilty of merely passive negligence. Its contention in this court is that the plaintiff had prior knowledge of the dangerous condition of the track at the crossing, that the plaintiff failed to notify it of the condition or request its correction, and that this was active negligence which made the plaintiff a concurrent or joint tort-feasor entitled only to contribution under the final clause of the indemnity agreement.
The defendant's contention in this court that the plaintiff had prior knowledge of the unsafe condition of the track at the crossing is a complete shift from its position a the trial. There its position was that it was not guilty of negligence because there was no evidence that the unsafe condition had existed for such a length of time as to charge it with knowledge and a duty of correction. It asserted, as its counsel stated in presenting his motion to dismiss at the close of the plaintiff's evidence, that the evidence indicated that "the plaintiff had no knowledge of any defective or faulty or dangerous or unsafe condition prior to the happening of this occurrence." In making this statement he relied upon the plaintiff's answer to an interrogatory that it first learned of the condition of the sidetrack at the time of the accident and a statement by the plaintiff's track foreman to the effect that he examined the track two days before the accident and that at this particular crossing there was nothing to lead him to believe that any cleaning up was necessary. Indeed the defendant went so far as to obtain an order from the trial judge striking out testimony of the plaintiff's conductor to the effect that he had previously reported the condition of the crossing to the track foreman. Having thus on its own motion obtained a record wholly devoid of evidence that the plaintiff had any knowledge of the unsafe condition, the defendant cannot now convict the trial judge of error in finding on that record that the plaintiff was not guilty of active negligence in permitting that condition to exist.
By the same token there is no merit in the defendant's contention that the plaintiff was guilty of active negligence in failing to notify the defendant of the unsafe condition and secure its correction. And in addition to its lack of knowledge of this particular condition, the trial judge found, contrary to defendant's contention, that the parties had not modified the defendant's obligation under the agreement to maintain the siding in reasonably safe condition by a custom under which the western end where the accident happened was only to be cleaned in winter when the ...