indemnity, but only to the extent of relative degree of fault. While comparative negligence is not recognized in the tort law of Pennsylvania, there is no reason why the parties cannot contract for its application.
Seckinger is not, of course, binding precedent in this case, as it involved the interpretation of a contract different from this one and governed by federal law. We are bound by Pennsylvania law in this diversity action. However, the analysis followed in Seckinger appears to be the most appropriate means to give meaning to all of the language of the contract, and to recognize, as Hardinger contends, that Hardinger cannot be held responsible for N&W's negligence when it has not explicitly agreed to be responsible.
Applying Seckinger to the case at bar, the court therefore concludes that the motion for a new trial should be granted and that in the new trial, the jury should be asked to apportion damages on a comparative fault basis. The jury was apparently aiming at some such result as shown by the question asked by the jury foreman at T. 430, but were precluded from proceeding on this basis by the court's instruction.
Since there was evidence to support the answers to the special interrogatories as to whether any act or omission of Hardinger caused the injuries to Capela and whether the settlement was reasonable, the N&W is entitled to hold its verdict as to liability and the new trial will be limited to the question of the amount of damages only.
We will, however, certify pursuant to 28 U.S.C. § 1292(b) that this order involves a controlling question of law as to which there is substantial ground for difference of opinion.
AND NOW, to wit, March 29, 1976, upon consideration of the briefs and arguments of the parties and for reasons set forth in the accompanying memorandum,
IT IS ORDERED that the motion of Hardinger Transfer Company, defendant for Judgment Notwithstanding the verdict be and the same hereby is denied.
IT IS FURTHER ORDERED that the motion of Hardinger Transfer Company, defendant for a New Trial be and the same hereby is granted as to the issue of damages only and the case is ordered restored to the trial list of the undersigned for retrial of said issue only.
IT IS FURTHER ORDERED pursuant to 28 U.S.C. § 1292(b) that the court hereby certifies it is of the opinion that this order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of this litigation.