dissenting.
I agree with the majority that if the C & O’s negligence was anything more than “passive,” the C & O cannot recover in the indemnity action. Carver v. Grossman, 55 Ill.2d 507, 305 N.E.2d 161 (1973). The problem is whether the character of the C & O’s negligence should have been resolved by summary judgment. The district court *227ruled that all genuine issues of material fact had been decided in Stacy’s suit against the C & 0. This, in my judgment, was error.
The C & O’s action is based on the following factual contentions. Prior to the time Stacy was injured while riding in the caboose of the Illinois Central train, the C & 0 train had received permission from the Illinois Central employees in control of the tracks to travel over tracks 7 and 8 for a switching movement. To accomplish this it was necessary for the C & 0 crew to use two cross-over switches. While completing the switching operation the crew placed the switches in a cross-over position. According to the Illinois Central’s control tower procedures, the C & 0 crew could leave the switches in a cross-over position unless the tower directed that the switches be returned to a straight position. At the time in question, the C & 0 crew had not been directed to realign the switches and had not been informed of the Illinois Central train’s movement in the critical area.
The C & 0 contends: (1) that the Illinois Central was in control of the activities of the C & 0 crew and had superior knowledge (on which the crew relied) of the activities of the trains involved; and (2) that although the C & 0 was held to be legally liable for Stacy’s injuries under the doctrine of respondeat superior, the negligent acts and omissions of the Illinois Central’s employees were the actual or “active” causes of the chain of events that resulted in those injuries.
Because the C & 0 was found liable to Stacy under the doctrine of respondeat superior, the relationship between the Illinois Central and the C & 0 with respect to the activities of the C & 0 train crew was not at issue nor was it decided in the Stacy action. This relationship and the responsibilities of the Illinois Central for the actions of the C & 0 crew are genuine issues of material fact which have yet to be resolved. Only an adversary trial can determine whether Illinois Central committed “active” negligence and the C & 0 only “passive” negligence.
The majority says:
We find ourselves in agreement with the district court that the judgment Stacy recovered against the C & 0 conclusively established that the conduct of the C & 0 employees was a substantial cause of his injuries, for even a cursory review of the pleadings and the instructions read to the Stacy jury reveals that, in rendering a verdict for Stacy, the jury necessarily determined that the employees of the C &
0 were negligent in either misaligning or failing to realign the cross-over switch, and that their negligence was a proximate cause of his injuries. As the Stacy judgment rests on findings of fact that are fatal to the C & O’s case here, the C & 0 is estopped by the judgment from denying that the negligence of its employees substantially contributed to Stacy’s injury. Shell Oil Co. v. Foster-Wheeler Corp., supra at 940. The Stacy judgment thus establishes, as a matter of law, that the negligence of the C & O’s employees was “active” in character and nothing that the C & 0 could prove at trial regarding the relative responsibility of the ICG for Stacy’s injuries could enhance the merits of its claim.
The flaw in this argument is that the relative negligence of the Illinois Central was not at issue in the Stacy action. How can the C & 0 be estopped by the Stacy judgment to assert that its negligence was merely passive and that Illinois Central’s negligence was active? The answer seems obvious. Until the C & 0 has its day in court to attempt to prove that the Illinois Central employees were the sole active agents in the happening, the C & O’s claim for indemnity should not be foreclosed.
1 would reverse and remand for further proceedings in the district court.