Opinion
November 11, 1953.
Present — McCurn, P.J., Kimball, Piper and Wheeler, JJ.
Order reversed on the law and facts, with $10 costs and disbursements, and motion granted, with $10 costs. Memorandum: The plaintiff's complaint alleges that plaintiff was injured by the collision of defendant Bethlehem's train with lumber placed along the tracks by defendant Siegfried which lumber then struck plaintiff. This is an allegation of active negligence and no matter in what other way Bethlehem may be found guilty of negligence, active or passive, the proximate cause, or at least one of the proximate causes of the accident, was the collision. Assuming that the third-party defendant was also negligent and that its negligence contributed to causing the injuries to plaintiff, the most that can be assumed is that it, together with Bethlehem, are joint tort-feasors in pari delicto, and, in the absence of an agreement of indemnity, and none is alleged here, there can be no recovery over. The third-party complaint should be dismissed. All concur. (Appeal from an order denying a motion for dismissal of the third-party complaint in an action for damages for personal injuries alleged to have been received by plaintiff while on premises owned by defendant Bethlehem Steel Company.)