196 U. S.

Argument for Defendant in Error.

Torpy, 35 Nebraska, 604; S. C., 43 Nebraska, 882; Ankeny v. Moffett, 37 Minnesota, 109.

Mr. Charles J. Greene for defendant in error:

Every company is bound to know the actual condition of each car it receives, hauls or uses, and the appliances attached to it, whether it does or does not inspect it, and without regard to its ownership or its source and destination. It was the duty of the plaintiff, before accepting the car in question, or directing its servants to handle it, to discover the defect in the brake, if the defect were open to reasonable inspection. Railroad Company v. Mackey, 157 U. S. 72; Railroad Company v. Smock, 23 Colorado, 456; Railroad Company v. Penfold, 57 Kansas, 148; Railroad Company v. Williams, 95 Kentucky, 199; Railroad Company v. Reagan, 96 Tennessee, 128; Railroad Company v. Merrill (Kan.), 70 Pac. Rep. 358, 362.

A railroad company using cars and appliances of other companies is charged, as to its employés, with the same duty to inspect as if the cars were its own. Stock Yards Company v. Goodwin, 57 Nebraska, 138; S. C., 57 N. W. Rep. 357; Eddy v. Prentice, 8 Tex. Civ. App. 58; S. C., 27 S. W. Rep. 1063; Jones v. Shaw, 16 Tex. Civ. App. 290; S. C., 41 S. W. Rep, 690; Felton v. Bullard, 94 Fed. Rep. 781; N. O. & N. E. Ry. Co. v. Clements, 100 Fed. Rep. 415.

A railway company which undertakes to haul foreign cars and has an opportunity to inspect them, is negligent if it fails to discover and repair dangerous defects in the coupling apparatus, brakes or any of the other appliances, where such defects are open to a reasonable inspection. Mackey v. Railroad Company, 19 D. C. App. 282; Railroad Company v. Williams, 95 Kentucky, 199; Mateer v. Railroad Company, 15 S. W. Rep. 970; Bender v. Railroad Company, 177 Missouri, 240; Jones v. Railroad Company, 20 R. I. 210.

The general duty which rests upon a railroad company to exercise reasonable care in the inspection of cars to be handled by its employés, is not restricted in the case of foreign cars,

to such as are to be sent out over its own roads, but governs as to all such cars which its employés are handling, though only in its switch yards, and for the purpose of being loaded and returned to another road. Railway Company v. Archibald, 170 U. S. 665; Railroad Company v. Penfold, 57 Kansas, 148.

A railway company which delivers a defective freight car to a connecting line is not liable in damage to an employé of the latter, who is injured by reason of such defect, after the car has been inspected by the company receiving it. The loss of control over the car and over the servants having it in charge relieves the delivering company from responsibility to the employés of the receiving company. M., K. & T. R. R. Co. v. Merrill, 70 Pac. Rep. 358; Sawyer v. Railway Company, 38 Minnesota, 103; Wright v. Canal Co., 40 Hun, 343; Mackin v. Railroad Company, 135 Massachusetts, 201; Winterbottom v. Wright, 10 M. & W. 109, 114; Clifford v. Atlantic Cotton Mills, 146 Massachusetts, 47; Heizer v. Manufacturing Co., 110 Missouri, 605.

MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.

We take it that this inquiry must be read in the light of - the statement accompanying it. While instruction is asked broadly as to the liability of the railroad company to the terminal company, for damages which the latter has been compelled to pay to one of its own employés on account of injuries sustained, it is doubtless meant to limit the inquiry to cases wherein such recovery was had because of the established negligence of the terminal company in the performance of the specific duty stated and which it owed to the employé. For it must be taken as settled that the terminal company was guilty of negligence after it received the car in question, in failing to perform the duty of inspection required of it as to its own employé. The case referred to in the certificate, Union Stock Yards Co. v. Goodwin, 57 Nebraska, 138, is a final adjudication between the terminal company and the employé,

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and it therein appears that the liability of the company was based upon the defective character of the brake, which defect a reasonably careful inspection by a competent inspector would have revealed, and it was held that in permitting the employé to use the car without discovering the defect the company was rendered liable to him for the damage sustained. We have, therefore, a case in which the question of the plaintiff's negligence has been established by a competent tribunal, and the inquiry here is, may the terminal company recover contribution, or, more strictly speaking, indemnity, from the railroad company because of the damages which it has been compelled to pay under the circumstances stated?

Nor is the question to be complicated by a decision of the liability of the railroad company to the employé of the terminal company, had the latter seen fit to bring the action against the railroad company alone, or against both companies jointly. There seems to be a diversity of holding upon the subject of the railroad company's liability, under such circumstances, in courts of high authority.

In Moon v. Northern Pacific Railroad Company, 46 Minnesota, 106, and Pennsylvania Railroad Company v. Snyder, 55 Ohio St. 342, it was held that a railroad company was liable to an employé of the receiving company who had been injured on the defective car while in the employ of the latter company when under a traffic arrangement between the companies, the delivering company had undertaken to inspect the cars upon delivery, and, as in the Moon case, where there was a joint inspection by the inspectors of both companies. This upon the theory that the negligence of the delivering company, when it was bound to inspect before delivery, was the primary cause of the injury, notwithstanding the receiving company was also guilty of an omission to inspect the car, before permitting the employé to use the same.

A different view was taken in the case of Glynn v. Central R. R. Co., 175 Massachusetts, 510, in which the opinion was delivered by Mr. Justice Holmes, then Chief Justice of Massa

chusetts, in which it was held that, as the car after coming into the hands of the receiving company and before it had reached the place of the accident, had crossed a point at which it should have been inspected, the liability of the delivering company for the defect in the car, which ought to have been discovered upon inspection by the receiving company, was at an end. A like view was taken by the Supreme Court of Kansas in the case of M., K. & T. R. R. Co. v. Merrill, 70 Pac. Rep. 358, reversing its former decision in the same case reported in 61 Kansas, 671. But we do not deem the determination of this question necessary to a decision of the present case.

Coming to the very question to be determined here, the general principle of law is well settled that one of several wrongdoers cannot recover against another wrongdoer, although he may have been compelled to pay all the damages for the wrong done. In many instances, however, cases have been taken out of this general rule, and it has been held inoperative in order that the ultimate loss may be visited upon the principal wrongdoer, who is made to respond for all the damages, where one less culpable, although legally liable to third persons, may escape the payment of damages assessed against him by putting the ultimate loss upon the one principally responsible for the injury done. These cases have, perhaps, their principal illustration in that class wherein municipalities have been held responsible for injuries to persons lawfully using the streets in a city, because of defects in the streets or sidewalks caused by the negligence or active fault of a property owner. In such cases, where the municipality has been called upon to respond because of its legal duty to keep public highways open and free from nuisances, a recovery over has been permitted for indemnity against the property owner, the principal wrongdoer, whose negligence was the real cause of the injury.

Of this class of cases is Washington Gas Light Co. v. District of Columbia, 161 U. S. 316, in which a resident of the city of Washington had been injured by an open gas box, placed and

maintained on the sidewalk by the gas company for its benefit. The District was sued for damages, and, after notice to the gas company to appear and defend, damages were awarded against the District, and it was held that there might be a recovery by the District against the gas company for the amount of damages which the former had been compelled to pay. Many of the cases were reviewed in the opinion of the court, and the general principle was recognized, that notwithstanding the negligence of one, for which he has been held to respond, he may recover against the principal delinquent where the offense did not involve moral turpitude, in which case there could be no recovery, but was merely malum prohibitum, and the law would inquire into the real delinquency of the parties, and place the ultimate liability upon him whose fault had been the primary cause of the injury. The same principle has been recognized in the Court of Appeals of the State of New York in Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461, the second proposition of the syllabus of the case being:

"Where, therefore, a person has been compelled, by the judgment of a court having jurisdiction, to pay damages caused by the negligence of another, which ought to have been paid by the wrongdoer, he may recover of the latter the amount so paid, unless he was a party to the wrong which caused the damage."

In a case cited and much relied upon at the bar, Gray v. Boston Gas Light Co., 114 Massachusetts, 149, a telegraph wire was fastened to the plaintiff's chimney without his consent, and, the weight of the wire having pulled the chimney over into the street, to the injury of a passing traveler, an action was brought against the property owner for damages, and notice was duly given to the gas company, which refused to defend. Having settled the damages at a figure which the court thought reasonable, the property owner brought suit against the gas company, and it was held liable. In the opinion the court said:

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