The opinion of the court was delivered by: DAVIS
We have before us the third-party action in a case under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., involving the death of one Andrew J. Mileski, an employee of the third-party plaintiff. The main action between the plaintiff and the railroad has been settled and the third-party defendant, American Smelting and Refining Company, as agreed to the reasonableness of that settlement. The question as to whether the railroad was entitled to indemnity or contribution from the third-party defendant remained outstanding, and this phase of the case was tried before the undersigned without a jury.
1. This suit was originally instituted by Catherine Mileski, Administratrix of the Estate of Andrew J. Mileski, Deceased, against the Lehigh Valley Railroad Company under the provisions of the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq.
2. The Lehigh Valley Railroad Company (Railroad) joined American Smelting and Refining Company (A.S. & R.) as third-party defendant alleging that A.S. & R. was liable to it for indemnity or contribution under an agreement between them dated June 28, 1948, if the plaintiff was successful in its suit against the Railroad.
3. Plaintiff's decedent, an employee of the defendant railroad was killed on March 2, 1962, when he was pinned between the side of the shear building and a moving train on a siding in the plant of A.S. & R. at Perth Amboy, New Jersey.
4. The distance between the side of the shear building and the center line of the side-track on which the railroad cars were moving at the time plaintiff's decedent was killed was 6 feet 5 inches, and the distance from a small vertical pipe on the outside of the building to the center line of the track was 6 feet 3 5/8 inches.
5. This close clearance between the shear building and the center line of the side-track and between the vertical pipe and the center line was a cause of death of the plaintiff's decedent.
6. The plaintiff's decedent was not wearing loose fitting clothing at the time he was killed and his clothing was not a cause of his death.
7. The plaintiff's claim against the Railroad was settled for $22,500., and A.S. & R. has agreed to its reasonableness.
8. The agreement between the Railroad and A.S. & R. dated June 28, 1948, provided in paragraph "FOURTH":
"FOURTH - It is understood that the movement of railroad locomotives involves some risk of fire, and the Shipper assumes all responsibility for and agrees to indemnify the Railroad Company against loss or damage to property of the Shipper or to property upon its premises, regardless of railroad negligence, arising from fire caused by locomotives operated by the Railroad Company on said side-tracks, or in its vicinity for the purpose of serving said Shipper, except to the premises of the Railroad Company and to rolling stock belonging to the Railroad Company or to others, and to shipments in the course of transportation.
"The Shipper also agrees to indemnify and hold harmless the Railroad Company from loss, damage or injury for any act or omission of the Shipper, its employees or agents, to the person or property of the parties hereto and their employees, and to the person or any property of any other person or corporation, while on or about said sidetracks, and if any claim or liability other than from fire shall ...