Before BIGGS, Chief Judge, and McLAUGHLIN and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
In this litigation under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, the original plaintiff sued his employer, Pennsylvania Railroad Company (Railroad), for damages resulting from injuries sustained allegedly as the result of the railroad's negligence which consisted inter alia in faulty maintenance of the track involved and of inefficient air brakes on the train which plaintiff had been riding just prior to having jumped or been thrown off. The defendant railroad filed a third-party complaint against United States Steel Corporation (Steel). That set out that Steel had ordered the cars which made up the train in charge of plaintiff delivered for loading to its coal mine near Bute, Pennsylvania; that the only track available for them was coke yard track No. 5; that to place the cars it was first necessary to move empty cars on the south end of the track to its north end over a private road crossing of the Steel Corporation; that upon shoving those cars over said crossing, the first car became derailed because the track was clogged with clay, dirt and debris which Steel had permitted to become lodged upon and over said track and rails from its trucks as they passed back and forth over the track. "As a result of the derailment", continued the complaint, "the train struck an abutment causing the injuries and damage alleged by the plaintiff." Steel's ownership of and obligation to maintain the track and crossing was specifically set out. The railroad therefore asked for indemnity or contribution from the third-party defendant "* * * for all or part of what sums may be adjudged against it * * * in favor of the plaintiff, * * *."
Steel denied any negligence. It affirmatively stated that the railroad had no permission to use the particular crossing or track and was a trespasser in its shifting operation. It asserted that it had no duty to maintain the crossing or track for the benefit or use of the railroad in the shifting or storage of its cars.
At the trial Kennedy, testifying in his own behalf, said that prior to his engine starting to push the cars already on the track over and beyond the crossing he left the caboose and walked over to the crossing and looked at it. As to its condition he said, "The crossing in my judgment was safe to go over. * * * There was very little dirt on the rails. In my judgment not enough to cause a car to derail. * * * There was some debris on either side of it [the crossing], but not on the rails." He had never had any trouble before on this crossing and it did not look any different than on previous occasions.
Kennedy returned to his position on the end sill at the rear of the train and after the air brake hose was connected told a brakeman it was all right to start the move. The brakeman gave the signal and the train proceeded towards the crossing. As the first car was going over the crossing Kennedy noticed it had become derailed. He told the brakeman to put on the air for an emergency stop. The train had been traveling about five miles an hour. It continued for at most a car length and a half after Kennedy had first noticed the derailment and then struck two abutments which were from two to three feet off the rails. Kennedy jumped from his car after the collision with the second abutment and received the injuries for which he sued.
At the trial the court submitted the following interrogatories to the jury:
"1. Did the derailment and injuries to plaintiff result in whole or in part from the negligence of the Pennsylvania Railroad Company in failing to provide plaintiff with a reasonably safe place to work because of the bad or defective condition of the roadbed, specifically the crossing?
"Answer 'Yes' or 'No' Answer: Yes
"2. Did plaintiff's injuries result in whole or in part by reason of any defect or insufficiency due to the negligence of the Pennsylvania Railroad Company in its cars, trucks, appliances or other equipment, and which defect or insufficiency in the equipment was the cause of the derailment?
"Answer 'Yes' or 'No' Answer: No
"3. Did plaintiff's injuries result in whole or in part by reason of a combination of the factors as set forth in both Interrogatories 1 and 2; that is, did the derailment occur because of the insufficiency or bad condition of the roadbed and also because of a defect or insufficiency in the cars, trucks, appliances or equipment?
"Answer 'Yes' or 'No' Answer: No
"4. State the amount of damages you award to ...