screw given way below. The structural defect hiding a possible fatigue failure of the adjusting screw combined with the defective design of the top support and lack of a third crank or safety arm caused the boxcar door to fall from its moorings and strike and injure Vales.
12. Auxiliary crank arms were not available at the time the boxcar door was built in 1964 though they were available to the railroad industry beginning in the mid-1970s. Youngstown Steel Door sold Consolidated Rail Corporation auxiliary crank arms for application to older railroad plug doors in the mid-1970s. Consolidated Rail Corporation failed to apply an auxiliary crank arm to the boxcar door involved in the Vales accident.
13. Railroad plug doors require special care in handling to prevent damage and the door getting out of adjustment.
14. The boxcar door must be closed during switching operations to prevent uncontrolled movement and the door hitting the door stops. It is the responsibility of the railroad, Consolidated Rail Corporation, to maintain the boxcar door in a closed position during switching operations. The boxcar door involved in the Vales accident was probably left open during switching operations as is evidenced by the deformed and bent door stops.
15. It is the responsibility of the railroad, Consolidated Rail Corporation, to keep the boxcar doors properly lubricated. Proper lubrication of the boxcar door requires that the roller assembly attached to the leveling screw (crankshaft) be greased to facilitate rotation of the screw. The boxcar door involved in the Vales accident had not been properly maintained and lubricated. The lack of lubrication of the roller assembly and leveling screw caused or contributed to the fracture of the leveling pin.
16. When the leveling screw of the railroad boxcar door is broken, the door will be misaligned. The misalignment of the door due to a broken leveling screw can be seen upon inspection of the door. It is the responsibility of the railroad, Consolidated Rail Corporation, to inspect the railroad cars. Consolidated Rail failed to inspect and detect the misalignment caused by the broken leveling screw of the boxcar door involved in the Vales accident.
17. Notice of the claim advanced by Carnation against Consolidated Rail Corporation as to the product liability grounds provided to Youngstown Steel Door Company was made seven (7) months prior to trial assignment.
18. Consolidated Rail Corporation tendered its complete file to Youngstown for evaluation purposes prior to trial assignment in the Vales action, and subsequent thereto in the instant action.
III. Conclusions of Law
1. When a party settles a claim with an injured individual, then sues the party primarily responsible for the harm for indemnity, the settling party must prove the following: (a) that the settlement was fair and reasonable; (b) that proper notice was given to the party from whom it seeks indemnity; and (c) that the settlement was not voluntary but was made due to the indemnitee's legal liability to satisfy the claim. Tugboat Indian Company v. A/S Ivarans Rederi, 334 Pa. 15, 21, 5 A.2d 153, 155 (1939). See also Philadelphia Electric Co. v. Hercules, Inc., 762 F.2d 303 (3rd Cir. 1985), cert. denied, 474 U.S. 980, 88 L. Ed. 2d 337, 106 S. Ct. 384 (1985).
2. Indemnification is not permitted between two defendants where the party seeking indemnification has been guilty of an independent act of negligence which also is a cause of the underlying injuries. Rabatin v. Columbus Lines, Inc., 790 F.2d 22 (3d Cir. 1986); Wingo v. Celotex Corp., 834 F.2d 375 (4th Cir. 1987). Indemnity is appropriately sought by a party only secondarily or passively liable while contribution is the appropriate remedy among joint tortfeasors. Besser Company v. Paco Corporation, 671 F. Supp. 1010 (M.D. Pa. 1987).
3. The settlement in the underlying action, and the sums paid by Consolidated Rail Corporation in accordance with the settlement agreement, was fair and reasonable.
4. Notice given by Consolidated Rail Corporation to Youngstown Steel Door Company with respect to the cross-claim on product liability grounds asserted by Carnation Company was proper. It was given seven (7) months prior to trial assignment, and after Youngstown was given ample opportunity to review the complete file maintained by Consolidated Rail Corporation and to inspect the boxcar.
Since the cross-claim on behalf of Carnation Company against Consolidated Rail Corporation was predicated on both negligence and product liability allegations, and the product liability claim was neither substantiated nor pressed until March, 1985 and Consolidated Rail Corporation took immediate measures to place Youngstown Steel Door on notice, such notice was timely and proper.
5. The contribution made by Consolidated Rail Corporation toward the overall settlement among the parties was in consideration of its potential liability to Carnation Company with respect to its product liability claim against it. Contribution made therefore by Consolidated Rail Corporation toward the overall settlement was not a voluntary payment but was based on its potential legal liability toward Carnation Company on product liability grounds.
6. Consolidated Rail Corporation, as a party secondarily liable for an accident resulting from product design defect, is entitled to seek indemnification from Youngstown Steel Door Company, as the party primarily liable, absent proof of active fault on its part which was a substantial factor in causing the boxcar door to fall from its moorings and strike the claimant Vales.
7. The experts' reports in this case indicate that Consolidated Rail Corporation was actively negligent in the maintenance of the boxcar door. One of these experts is the consulting firm of American Standards Testing Bureau, Inc. (ASTB). ASTB wrote three reports. The first report, dated August 22, 1978, just one week after Mr. Vales' accident details the failure of Consolidated Rail Corporation to maintain the railroad boxcar:
Examination of the two (2) door stops on the car top and bottom revealed that they have been in chronic disrepair and pushed out of position, permitting the rollers to overtravel about 2" minimum. The upper stop was severely deformed and the lower door stop had two rivets pulled through the post on the cars . . . . The over-travel of the rollers had resulted in repeated impacts against the roller track terminus. Such repeated blows, when closing the door, have degraded the threaded pin attaching the roller to the pivot arm . . . . Fractographic analysis of the severed pin revealed that it had sustained multiple cracks and progressively fractured over some period of time . . . . This condition is consistent with the assembly deterioration due to the state of disrepair described . . . .
The second ASTB report dated July 3, 1984, reiterated Consolidated Rail Corporation's negligence in the maintenance, inspection and use of the railroad boxcar. It stated:
Microscopic examination of the fractured surface shows quite clearly that there was previous damage to the subject pin thus committing it to a substantially weakened condition when it finally severed at the time of Mr. Vales' injury . . . . The condition observed clearly indicates that this crack pre-existed the Vales accident for a considerable period of time and that it was detectable prior to the final separation of the pin . . . .