The opinion of the court was delivered by: WILLSON
Counsel for the Pennsylvania Railroad Company, the defendant and third party plaintiff has in his brief set forth a succinct account of the jury's findings. His statement is:
'Five days of trial, culminating in nine hours of deliberation by the jury, resulted in the jury's determination that the Railroad was negligent in failing to supply plaintiff with a reasonably safe place to work because of the condition of the crossing, that is that it was the United States Steel Corporation's (hereinafter called Steel) duty to maintain the crossing in a reasonably safe condition for Railroad purposes, and, that Steel failed to maintain the crossing in reasonably safe condition.
'Since the Railroad has paid the plaintiff's judgment there is nothing before the court but the third-party action.'
However, a more detailed account is desirable as pointing up the present issues which this court must decide. Counsel for the third party defendant has given a detailed history of the case in his brief, which has been largely adopted here. He says:
'The plaintiff for many years prior to 1954 had been a conductor for Pennsylvania Railroad Company. In the within action the plaintiff sought to recover damages from the Pennsylvania Railroad Company, defendant, as a result of an accident sustained by him on July 14th, 1954, his action being brought under the Federal Employers' Liability Act, in which he averred that the defendant, Pennsylvania Railroad Company, had failed to provide him with a reasonably safe place to work and had failed to warn him of the dangerous condition of the crossing involved in this accident and specifically averred that his accident was solely caused by the negligence of the Pennsylvania Railroad Company, its agents, servants and employees, in certain respects therein set forth.
'Following the plaintiff having filed his complaint against Pennsylvania Railroad Company, defendant, Pennsylvania Railroad Company brought into this case United States Steel Corporation as third party defendant, alleging, inter alia, that on July 14th, 1954, the Steel Company had ordered forty-five empty cars to be placed for loading at its coal mine at or near Bute, Fayette County, Pennsylvania, and, since no other track was available at the time upon which to place the empty cars except coke yard track No. 5, that the train crew found it necessary to and did move twenty-four of the empty cars already on the south end of the track to the north end over a private road crossing owned by the third party defendant, United States Steel Corporation. It was further averred that in shoving the twenty-four cars over said private road crossing the first and lead car on the train became derailed by reason of clay, dirt and debris on said track and that as the first car of said train proceeded over said crossing the same became derailed. As a result the train struck an abutment, causing the plaintiff, John P. Kennedy, the conductor of said train and the employee of Pennsylvania Railroad Company, to jump or to be thrown from the said first lead car and sustain injuries thereby. In its complaint, Pennsylvania Railroad Company, as third party plaintiff, contended that the third party defendant, United States Steel Corporation, had the obligation to maintain said track and crossing at the time involved and that it failed to maintain said track and crossing at the time involved, and as a result its train was derailed through the alleged negligence of United States Steel Corporation, and for that reason Pennsylvania Railroad Company alleged that it was entitled to indemnity or contribution from the Steel Company to the extent of the whole or part of any sums which the plaintiff Kennedy might recover from Pennsylvania Railroad Company.' The jury awarded plaintiff damages in the sum of $ 8500.00.
'It is admitted by the Steel Company that the crossing involved is owned and was owned at the time involved by it but the Steel Company although denied that Pennsylvania Railroad Company had any right whatever to take the train involved over said crossing, since the Steel Company had advised the Railroad Company some months previous to July 14th, 1954, that the coke ovens located at or near said crossing and along the track involved had been closed down and operations therein had ceased. The Steel Company also admitted at the time of this trial that it had ordered empty cars from Pennsylvania Railroad Company to be placed for loading at another coal mine owned by it near Bute, Fayette County, Pennsylvania, but the Steel Company alleged that no permission was granted by it for the Railroad Company or its employees to bring said empty cars into the area of coke yard track No. 5 even though Pennsylvania Railroad Company found the mine where the cars were originally to be delivered to be on strike on the morning of July 14th, 1954.
Following the jury verdict, this court directed that judgment be entered in favor of the plaintiff and against the Pennsylvania Railroad Company. In the third party action, judgment was entered in favor of the Pennsylvania Railroad Company and against the United States Steel Corporation in the full amount of the judgment and costs entered in favor of the plaintiff against the defendant. Steel filed a timely motion for a new trial. It also filed a motion for judgment notwithstanding the verdict in accordance with its motion for a directed verdict. However, as pointed out in Railroad's brief, the latter motion was not timely. Nevertheless, had it been timely, it would not have been granted, and the motion for a new trial must be denied.
The issues were left to the jury in a special verdict containing six interrogatories. In the first interrogatory the jury determined that the railroad was negligent in failing to provide the plaintiff with a reasonably safe place to work because of the bad or defective condition of the crossing. In the second interrogatory, the jury determined that the injuries suffered by plaintiff were not caused in whole or in part because of any defect or insufficiency in railroad equipment. In the third interrogatory the jury determined that plaintiff's injuries were not the result of a combination of the first two. In answer to the fourth interrogatory, the jury found plaintiff's damages to be $ 8,500. In summary, then, the first four interrogatories simply determined that the railroad was negligent because of a bad crossing which resulted in providing plaintiff with an unsafe place to work and that plaintiff suffered damages in the amount stated.
The fifth and sixth interrogatories submitted are the subject of the issues raised by Steel in its motion. These interrogatories and the answers of the jury are:
'5. Was the United States Steel Corporation, third party defendant, under the evidence, required to maintain the crossing in a reasonably safe condition for Pennsylvania Railroad Company purposes on July 14, 1954?
'6. If your answer to Interrogatory No. 5 is 'Yes,' that is, that the United States Steel Corporation was required to maintain the crossing in a reasonably safe condition, did the United States Steel Corporation maintain the ...