concurring. I agree with the decision of the court to reverse the judgment of the trial court and to remand the case for a new trial on all issues, including the extent of plaintiff’s damages and for a determination of the proportionate part of the plaintiff’s damages attributable to Jack James, by superimposing the Kansas comparative negligence statute on this Federal Employers’ Liability Act case.
It must be conceded this is a unique case to set guidelines for proportional contribution in a comparative negligence action. The controlling facts must be clearly understood to avoid misconstruing the opinion written for the court. The precise issues determined are quite narrow.
First, the action was filed by the plaintiff, an employee of the Burlington Northern, Inc. (the railroad), pursuant to the provisions of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. This federal statute initially imposes all liability on the railroad for an injured employee if the injury resulted in whole or in part from the negligence of the railroad, except that the total damages are to be diminished in proportion to the amount of negligence attributable to such employee.
Second, the plaintiff in his petition sued not only the railroad but Jack James, the driver of the pickup truck involved in the railroad crossing accident, seeking recovery for his damages from both defendants.
Third, the railroad, in a timely responsive pleading, asserted a cross-claim against James, contending James was liable to the railroad for any sum the plaintiff might be awarded against the railroad in this action under K.S.A. 60-213(g). James subsequently settled with the plaintiff for his proportionate share of the causal negligence contributing to the plaintiff’s damages and was given a full release for his liability to the plaintiff in a written document known as a “Pierringer Release,” quoted and discussed in the court’s opinion. This release is a contract framed under comparative negligence principles binding on the plaintiff and James.
On this state of the pleadings and upon the foregoing facts fames was on notice from the very beginning of the lawsuit that both the plaintiff and the railroad could subject him to monetary liability. This clearly distinguishes the case from Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158, aff'd on rehearing *219232 Kan. 194, 653 P.2d 816 (1982). As in Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), given the adoption of notice pleading, third-party practice pleadings pursuant to K.S.A. 60-213(g) and 60-214(a) are sufficient in form and content to raise questions of comparative negligence under K.S.A. 60-258a as to a party served with third-party pleadings. Third-party pleadings under these provisions comport with concepts of due process and are sufficient under Ellis to subject a third-party defendant to liability for a claim of proportionate contribution, because the third-party defendant is placed on notice that monetary recovery is sought from him in addition to a determination of his proportionate fault, thus affording the third-party defendant an opportunity, if so desired, to participate in discovery and other pretrial proceedings. The cross-claim filed by the railroad against James was sufficient to assert a claim under K.S.A. 60-258a(c), serving as a motion to have James “joined as an additional party to the action.”
Under these facts and circumstances it is proper, in my opinion, in a negligence action to recognize the doctrine of proportional contribution as an inherent part of the comparative negligence statute. Accordingly, James can be held monetarily liable to the railroad for his proportional part of the causal negligence attributable to the plaintiff’s damages.
Unfortunately the court holds the ruling of the trial court dismissing James from the action is proper. With this position I cannot agree. An action was filed against James by the plaintiff in the initial pleadings, making him one of the original parties to the lawsuit. In addition, a separate claim was filed against James by the railroad under 60-213(g). As discussed above, this was sufficient under the comparative negligence statute to assert a claim against James for comparison of fault and potential liability for proportionate contribution. James’ settlement with the plaintiff only released him from liability for the negligence claim asserted by the plaintiff in his pleadings and to save James harmless in the event the railroad recovered from James for his proportionate share of the negligence. This agreement did not operate to release James from the claims for comparison of fault and proportionate contribution effectively asserted against him by the railroad in its cross-claim. Despite the release and indemnification agreement entered into by James and the plaintiff, James continued to be a *220party to the action, if the clear and unambiguous language in 60-258a(c) is to be given effect, because the claim under 60-258a(c) asserted against James by the railroad continued to exist. A claim asserted under 60-213(g) or 60-214(aJ, which places a third-party defendant on notice of potential liability for proportionate contribution under comparative negligence principles, renders the third-party defendant a party to the action under 60-258a(c) for purposes of comparison of fault and liability for proportionate contribution under Kennedy. This status is not destroyed because the plaintiff and third-party defendant enter into a settlement contract as between them.
It seems inconsistent to say James was properly dismissed from the action as a party, and then reverse the judgment of the trial court on the ground that the trial court failed and refused to submit the issue of James’ negligence to the jury. In reversing the trial court the case is remanded for a new trial on all issues, with James’ negligence to be submitted as an issue for jury determination under comparative negligence principles. Keeping James in the action as a party would not change his liability to the plaintiff, because James paid his proportionate share of the plaintiff’s damages and protected himself by the release and indemnification agreement. The plaintiff would not be able to recover twice from James. Under 60-258a(c), the defendant railroad having asserted a cross-claim puts the defendant James on notice of potential liability, and the railroad is entitled to have James remain as a party in the lawsuit regardless of James’ settlement with the plaintiff. This permits all issues of liability and damages to be litigated within the context of the original lawsuit where all potentially responsible parties are available. Whether James continues to retain counsel to represent him as a party in the action, however, is a matter entirely within his discretion.
I concur in the result reached by the court. The court directs that upon retrial the jury determine the plaintiff’s damages, and the proportionate share of the total negligence attributable to the plaintiff, to James, and to the railroad; and that judgment should then be entered for the plaintiff and against the railroad for that proportionate share of plaintiff’s damages attributable to the negligence of the railroad. I do not agree that James was properly dismissed as a party from the lawsuit. Under the comparative negligence statute James is a party to the action.