On Motion for Rehearing
ANDERSON, Judge.In respondent’s motion for rehearing it is urged that we overlooked and failed to accept as true the allegations of the cross-claims wherein it is averred that the cross-claiming defendants were guilty of no negligence whatever, but as between said defendants and Sam Siegel the direct and primary cause of the, accident was Sam Siegel’s negligence in cutting into the path of the moving streetcar and suddenly stopping in front of it.-
We had not overlooked the above mentioned, allegations, but had considered them in connection with the further allegation that under the averments of plaintiff’s petition a jury would be entitled to infer negligence on the part of Hoffmann and the streetcar company under the res ipsa loquitur theory. If it is established that the cross-claiming defendants were guilty of no negligence whatever, no valid judgment could be rendered against them. Such finding would end the lawsuit as far as they were concerned and the matter of indemnity would be out of the case. Such allegations afford no basis for a claim of indemnity. Ruping v. Great Atlantic & Pacific Tea Co., Sup., 124 N.Y.S.2d 269; Kloppenberg v. Brooklyn Union Gas Co., 82 N.Y.S.2d 687. Nor is a case for indemnity made by the allegation that Sam Siegel’s negligence was the direct and primary cause of the collision; because, as alleged in said cross-claims, he “knew or by the exercise of the highest degree of care should have known that this defendant (St. Louis Public Service Company) could and might be subjected to liability * * * if said auto was caused and permitted to collide with this defendant’s streetcar.” No liability could be imposed on the streetcar company by reason of any such alleged negligence of Sam Siegel, for the reason that there is no relationship between the parties which would warrant the imposition of such liability. Nor is there any basis for liability over on any theory. The facts do not present such a case. The principles which govern in the determination of the question presented are well stated in Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 371, 24 A.L.R.2d 319, where it is said:
“Without multiplying instances, it is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important point to be noted in. all the cases is that secondary as distinguished from primary liability rests upon a fault thát is imputed or constructive only,. being based on some legal r.elation between the parties,, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them *508owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other.”
It is urged that we erred in holding that the streetcar company and Sam Siegel owed plaintiff the same degree of care. Under our decisions a carrier of passengers is held to the highest degree of care, prudence and foresight for the safety of its passengers. May v. Chicago, B. & Q. R. Co., 284 Mo. 508, 225 S.W. 660; Cecil v. Wells, 214 Mo.App. 193, 259 S.W. 844. Section 304.010 RSMo 1949, V.A.M.S., provides that every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care.
In respondent’s motion it is also urged that the defendants could not be in pari delicto for the reason that the duties each owed toward the other were different—that of Hoffmann and the streetcar company being the exercise of ordinary care, and that of Siegel being the exercise of the highest degree of care.
The solution of our problem cannot be based upon a consideration of the disproportionate duties owed by one tort-feasor to the other, where both have breached substantially equal duties owed the injured person, and have concurrently and jointly committed negligent acts of the same general character. In such cases, it cannot be said that one tortfeaspr was more culpable than the other in causing plaintiff’s injury. In determining this matter it is the breach of duty toward the injured person, taken in connection with the other considerations above mentioned, which is of prime importance.
Nothing we have said, either in this or our original opinion, should be construed as prohibiting the defendant St. Louis Public Service Company from prosecuting its cross-claim for any damage it may have suffered to its streetcar. Likewise, defendant Hoffmann may, by cross-claim, seek damages for his personal injuries, if any, if he is so advised. Our writ runs only to the matter of indemnity.
Lastly, it is urged that relator is not entitled to prohibition for the reason that he has an adequate remedy by appeal.
In State ex rel. Algiere v. Russell, 359 Mo. 800, 223 S.W.2d 481, the Supreme Court exercised its jurisdiction to issue a writ of prohibition in a case similar to the one at bar. Jurisdiction to issue the writ was not discussed in the opinion in that case, but no doubt was considered by the court. We consider that case as an authority in support of our jurisdiction to issue a writ of prohibition where, as here, under the admitted facts, no cause of action for indemnity can be stated. See State ex rel. Reed v. Harris, 348 Mo. 426, 153 S.W.2d 834, and cases there cited.
The respondent’s motion for rehearing or to transfer is overruled.
RUDDY, P. J., and JAMES D. CLEMENS, Special Judge, concur.