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June 4, 1975

Robert J. ZIMMERMAN, Plaintiff,
Robert D. TIMPANY, Trustee, the Central Railroad Company of New Jersey, Defendant and Third-Party Plaintiff, v. FMC CORPORATION, Third-Party Defendant

Irving Ben Cooper, District Judge.

The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, District Judge.

We have before us two motions. The first, by third-party defendant FMC Corporation ("FMC"), seeks to set aside the jury's verdict in this case, pursuant to Fed.R.Civ.P. 59. The second, by defendant-third party plaintiff Robert Timpany, as Trustee for the Central Railroad of New Jersey ("CNJ"), seeks indemnification against FMC.

 On December 9, 1969 at about 5:30 P.M. plaintiff Robert J. Zimmerman ("Zimmerman") was freight conductor on a six-car train being routed onto FMC's sidetrack at Carteret, New Jersey. Zimmerman was riding on a ladder of the first car as it came into the sidetrack and he attempted to slow the move by signalling the engineer with his lantern. Almost immediately thereafter, the engineer blew his whistle indicating trouble. Zimmerman quickly stepped off the car onto the ground. However, the ground was covered with soda ash (a product produced by FMC) and salt which caused him to slip, twisting his right leg and ankle and propelling him into a chain link fence. As a result, Zimmerman suffered a severe injury to his right leg and ankle.

 Zimmerman brought a cause of action against CNJ, pursuant to 45 U.S.C. § 51, et seq. CNJ impleaded FMC asserting two claims of indemnification against it: for amounts paid to Zimmerman for his claim, and for $2,208.25 in rerailing expenses.

 We presided at the trial between these parties from April 14 to April 17, 1975; the jury determined the liability of CNJ and FMC to Zimmerman. CNJ and FMC stipulated at trial that the Court would decide the third party indemnity claims on the basis of the jury's special verdict. The special verdict, submitted by Court to jury, awarded Zimmerman $22,000, found him not contributorily negligent, FMC primarily negligent, and CNJ secondarily negligent.

 FMC now moves to set aside the jury verdict on various grounds. We have considered these claims of error and reject them. No lengthy discussion is warranted. FMC's motion is denied in all respects.


 In its motion CNJ seeks recovery against FMC under the terms of their "Sidetrack Agreement" (the "Agreement") for the $22,000 paid Zimmerman as a consequence of the jury award, and $2,208.25 expenses incurred in rerailing several of its freight cars which were derailed during Zimmerman's accident.

 Pursuant to the terms of the Agreement, liability arising from acts or omissions on or about the sidetrack is to be borne by the parties:

8. It is understood that the movement of railway locomotives involves some risk of fire, and the Industry assumes all responsibility for and agrees to indemnify the Railroad Company against loss or damage to the property of the Industry or to property upon its premises, regardless of the Railroad Company's negligence, arising from fire caused by locomotives operated by the Railroad Company on said sidetrack, or in its vicinity for the purpose of serving said Industry, except to the premises of the Railroad Company and to the rolling stock belonging to the Railroad Company, or to others, and to shipments in the course of transportation.
The Industry also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Industry, its employees, or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about said sidetrack. If any claim or liability, other than from fire, caused by locomotives as aforesaid shall arise from the joint or concurring negligence of both parties, it shall be borne by them equally."

 The issue before us, then, is whether CNJ's breach of its nondelegable statutory duty to provide its employees with a safe place to work was such "joint or concurring negligence" so as to limit it to 50 percent contribution from FMC. *fn1"

 As noted, supra, the jury has specially found that FMC is primarily negligent and CNJ secondarily negligent in causing Zimmerman's injuries. In such a situation, where the negligence of the industry (FMC) is "active" or "primary" and that of the railroad, "passive" or "secondary", it has generally been held that the railroad against which liability to its injured employee has been determined may recover full indemnity from the industry, here FMC. B & O R. Co. v. Alpha ...

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