in Bedal v. Hallack & Howard Lumber Co., 9 Cir., 226 F.2d 526. That decision is not helpful to Steel on the present issues. The Court of Appeals sent the case back to the trial court for decision on the very matters which were decided by the jury in the instant case. It is noticed, too, page 532, the court says:
'* * * The Railroad's judgment against the lumber company is predicated upon promises made by the lumber company to the Railroad in a lease between those parties.'
The court also, at page 533, discussed Section 95 of the Restatement of the Law of Restitution and applies it as Judge Maris did in Baltimore & Ohio R. Co. v. Alpha Portland Cement Co. The result is that the railroad under the findings of the jury in this case is entitled to indemnity because of the evidence on the agreement between it and the Steel Company and also under the rule of the common law, Section 95 of the Restatement, it was the Steel Company which created a dangerous condition. The crossing having been found unsafe, the Railroad became liable to plaintiff because its duty to him to provide a safe place to work was non-delegable. But under the evidence, the agreement found by the jury to be in effect between the parties is in harmony with Section 95 of the Restatement and for that additional reason the Steel Company is liable to the Railroad for the amount of the judgment it paid plaintiff.
Steel's sixth, seventh and eighth reasons advanced for a new trial refer to alleged error by the court in refusing to charge as to matters relating to the contributory negligence of John P. Kennedy and the effect of such negligence on the third party action. As to these points, it is sufficient to say that the court did charge that the jury was, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., required to consider the issue as to whether or not plaintiff was guilty of contributory negligence and if so, to compare his negligence with that of the defendant in arriving at its verdict, if any, for the plaintiff. It was not necessary as a matter of law to submit this in a separate interrogatory and the court did not do so. Plaintiff could have been guilty of contributory negligence and perhaps he was as between himself and the defendant, and if so, the third party action was not barred. The Railroad is entitled to indemnity in this case even though it has been found negligent. Section 95 is based on that proposition. Of course, the Railroad has not admitted negligence and did not at any time during the trial.
In conclusion, there was room for fair-minded men to come to different conclusions on the factual issues presented by the evidence. Therefore, the jury's decision is final and will not be disturbed. The motions for judgment notwithstanding the verdict and for a new trial will be denied.
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