(dissenting in part and concurring in part).
The majority opinion states: “The interrogatories submitted to the jury established that Steel was required to maintain the crossing in a reasonably safe condition and failed to do so.” I agree with this statement for it is the foundation for the correct decision in this case. Kennedy was injured because of Steel’s failure to maintain the crossing on Steel’s property in a safe condition for the Railroad’s purposes. See the jury’s affirmative answer to Interrogatory No. 5. Kennedy has obtained a judgment against the Railroad under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, because the derailment and the injuries resulted in whole or in part from the negligence of the Railroad in failing to give Kennedy a safe place to work. See the jury’s affirmative answer to Interrogatory No. 1. The Railroad has been endamaged to the extent of Kennedy’s judgment against it because of Steel’s failure to sustain its obligation to the Railroad to maintain the crossing in a safe condition. The Railroad is therefore entitled to recover against Steel the amount of the judgment paid by it to Kennedy. The fact that the doctrine of comparative negligence was applicable in Kennedy’s case against the Railroad under the FELA does not alter in any respect the liability of Steel to the Railroad.
True, Steel’s liability to the Railroad is measured by the law of Pennsylvania which like the law of any other State requires damages for breach of an obligation. It is true also that the law of Pennsylvania provides that a plaintiff’s contributory negligence, “however slight,” will bar his recovery in a common law tort case, and if Kennedy had sued Steel and it was demonstrated to the triers of the facts that he was even slightly negligent he could not have recovered against Steel. Middleton v. Glenn, 1958, 393 Pa. 360, 143 A.2d 14, 15, 16. But Steel’s obligation to the Railroad is not measured by Pennsylvania tort law but by the contract law of that State. If the FELA had had no application in the ease at bar and Steel had entered into an express contract with the Railroad to maintain the crossing in good condition, would anyone contend that the Railroad could not recover from Steel the damages that Kennedy had recovered from it? Yet the situation here is precisely the same. Any defense that the Railroad could have offered against Kennedy was adjudicated in Kennedy’s suit against it. No issue as to Steel’s breach of duty to the Railroad remains in the case because of the jury’s finding as to Steel’s obligation to the Railroad and the jury’s finding that Kennedy’s injuries *711resulted from Steel’s breach of that obligation. The majority opinion intermingles two distinct and separate theories of liability, one based on implied contract, the other on tort. The error of the majority opinion lies, I think, in the assumption that the Railroad was a mere business invitee of Steel despite the fact the jury’s answers to the interrogatories make it clear that the jury found the Railroad to be the beneficiary of an implied contract with the Steel Company to maintain the crossing on Steel’s property in a safe condition for the Railroad’s purposes. These answers were based on ample evidence.
I would sustain the judgment in Kennedy’s favor against the Railroad and I would direct the court below to enter a judgment in favor of the Railroad against Steel for the amount of Kennedy’s judgment against the Railroad. In my view a new trial is not necessary. The court is entitled to mould a verdict against Steel as indicated.