17. The reasonable counsel fees and other expenses incurred by the Railroad in the preparation and defense of plaintiff's claim amounted to $7,683.06.
DISCUSSION AND CONCLUSIONS OF LAW
In the light of our findings of fact, we must now turn to the provisions of the side-track agreement between the third-parties dated June 28, 1948 and determine which are applicable here.
It is clear that paragraph "Ninth" specifically imposes ultimate liability on the third-party defendant for the death of any railroad employee "caused by or resulting from" reduced clearance between the tracks and its buildings. Since the death of the plaintiff occurred in this manner the Railroad is entitled to full indemnity under this paragraph unless some other provision or principle supercedes it.
The third-party defendant relies on the terms of paragraph "Fourth" which states in part, "* * * 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." However, the only fault we have found on the part of the Railroad was the breach of its non-delegable statutory duty to provide its employee with a safe place to work. This is a form of "passive or secondary negligence" and is not the type of conduct that comes within the ambit of "joint or concurring negligence." Pennsylvania Railroad Co. v. Erie Avenue Warehouse Co., 302 F.2d 843 (3d Cir. 1962); Baltimore & Ohio Railroad Co. v. Alpha Portland Cement Co., 218 F.2d 207 (3d Cir. 1955); Booth-Kelly Lumber Co. v. Southern Pacific Co., 183 F.2d 902, 20 A.L.R.2d 695 (9th Cir. 1950). See Foster v. Pennsylvania Railroad Co., 201 F.2d 727 (3d Cir. 1953); Baltimore & Ohio Railroad Co. v. American Viscose Corp., 214 F. Supp. 287, 292 (N.D.W.Va.1963) (dictum). If this provision of paragraph "Fourth" were held to encompass all species of fault, the indemnity clause would be meaningless. By its very nature, such a clause presupposes some fault on the part of the indemnitee for otherwise the indemnitee would rarely incur any liability and thus would have no need or reason for recovery over against the indemnitor. Pennsylvania Railroad Co. v. Erie Avenue Warehouse Co., supra, 302 F.2d at 847. Because we have found only "passive or secondary negligence" on the part of the Railroad paragraph "Fourth" cannot be invoked.
Since the concept of indemnity is interpreted in light of common law principles, absent anything in agreement to the contrary, we pause to mention the doctrine of acquiescence which can serve to defeat indemnity if the prospective indemnitee tacitly accepts the continuation of a dangerous or unsafe condition. See Pennsylvania Railroad Co. v. Erie Avenue Warehouse Co., supra; Baltimore & Ohio Railroad Co. v. Alpha Portland Cement Co., supra; Restatement, Restitution, § 95. Even assuming without deciding that the close clearance in this case presented an unsafe condition, the side-track agreement here contemplated the continuation of this reduced clearance and specifically provided for indemnity in the case of any injuries or deaths resulting therefrom. Under the circumstances, the third-party defendant has contracted away its right to rely on the doctrine of acquiescence. Anthony v. Louisiana & Arkansas Railway Co., 316 F.2d 858 (8th Cir. 1963), Seaboldt v. Pennsylvania Railroad Co., 290 F.2d 296 (3d Cir. 1961).
In addition paragraph "Ninth" would seem to be devoid of purpose if the doctrine of acquiescence applied here. The Railroad would never be able to recover except possibly where the third-party defendant suddenly erected a new structure close to the tracks and the Railroad had not as yet had an opportunity to object before the accident. This is certainly not the intent of the contract.
Except for its failure to supply its deceased employee with a safe place to work, the third-party plaintiff was not guilty of any negligence on March 2, 1962 during the shifting of freight cars onto the third-party defendant's siding and has met its burden of proof that it is entitled to full indemnity under paragraph "Ninth" of the side-track agreement dated June 28, 1948.
And now, this 20th day of July 1966, it is hereby ordered that Judgment be entered for the third-party plaintiff, The Lehigh Valley Railroad Company, and against the third-party defendant in the amount of $22,500., plus $7,683.06 for counsel fees and other expenses incurred in the preparation and defense of the plaintiff's claim.