Appeal, No. 65, March T., 1956, from judgment of Court of Common Pleas of Allegheny County, July T., 1952, No. 2469, in case of Charles Harry Wilbert v. Pittsburgh Consolidation Coal Company. Judgment affirmed; reargument refused May 22, 1956.
Harold R. Schmidt, with him John L. Laubach, Jr. and Rose, Rose & Houston, for appellant.
Earl J. Cavanaugh, with him Evans, Ivory & Evans, for appellee.
Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff, an employee of the Pennsylvania Railroad Company, was injured while in the course of his
employment by being thrown from the platform of a caboose upon which he was riding. The accident happened as the result of the derailment and overturning of the caboose at a point where the defendant coal company's private road crossed the railroad track upon which the caboose was being backed by a shifting locomotive at the time of the derailment.
A short time after the accident the plaintiff received from the railroad company $12,500 for which he executed a release relieving the railroad from "a liability claimed and denied". Subsequently the plaintiff instituted the instant action against the coal company to recover damages for his injury on the ground that negligence on the part of the coal company in causing the private crossing to become slag-littered was the proximate cause of the derailment and the plaintiff's consequent injury.
As the release was executed and delivered prior to the effective date of the Uniform Contribution Among Tortfeasors Act of July 19, 1951, P.L. 1130, 12 PS §§ 2082-2089, the common-law rule that a release of one joint tort-feasor is a release of all would have been applicable. See Thompson v. Fox, 326 Pa. 209, 212-213, 192 A. 107, and cases there cited. However, in order that a release of one person from liability may bar an action against another for the same injury, the two must have been jointly liable. Accordingly, a release of one who is not legally liable for an injury to another does not operate to release the culpable tort-feasor. In Koller v. Pennsylvania Railroad Company, 351 Pa. 60, 63, 40 A.2d 89, it was there recognized that "before there can be a joint tort, there must be a community of fault which occasioned the accident." See, also, Union of Russian Societies v. Koss, 348 Pa. 574, 578, 36 A.2d 433.
Ordianrily, one who asserts an affirmative defense has the burden of proving it, but, where the defense is a release from liability for the injury in suit, given to one not a party to the record who is alleged by the impleaded defendant to have been jointly liable with him, the release, when introduced in evidence, makes out a prima facie case of joint liability, and thus the burden of showing that the defendant in the action was solely liable shifts to the plaintiff: ...