J. H. Hass sued the Galveston, Harrisburg & Sаn Antonio Railway Company for damages arising out of personal injuries received by him while in the employ of the company as brakeman on its train, which injuries occurred through the breaking of a hand-hold upon the car on which he was working. The car belonged to the International & Great Northern Railway Company, a connecting carrier, which had delivered the car to the Galveston, Harrisburg & San Antonio Railway Company to be by it delivered at the point of destination on its line. The Galveston, Harrisburg & San Antonio Railway Company pleaded over against the International & Great Northern Railway Company, making it a party defendant and asking for judgment against it for whatever amount Nass might recover in that suit.
From the conclusions of fact filed by the Court of Civil Appeals, we make the following statement: The car was the property of the International & Great Northern Railway Company and was transferred and delivered to the Galveston, Harrisburg & San Antonio Railway Company at San Antonio, to he by the latter сompany transported on its line to its destination. The Galveston, Harrisburg & San Antonio Railway Company made inspection of the car at the timе of receiving it, but the inspection was not properly and carefully done. When Nass was attempting to climb upon the car in the discharge оf his duty, a hand-hold broke loose, the wood to which it was attached being rotten, and caused him to fall upon another track, striking the small of his baсk on a rail, thereby inflicting a serious injury. The inspector of the International & Great Northern Railway Company had, on the same day and beforе the delivery of the car to its connecting carrier, inspected it. The defect was such as could have been discovered by a careful inspection. There was no agreement between the two companies which would require the delivering company to respond to the other in respect to unsafe ears that might be delivered. Ho partnership existed between the two roads in reference to the hauling of cars.
Hpon the trial, the judge instructed the jury that in case they should *258 find any sum in favor of the plaintiff against the Galveston, Harrisburg & San Antonio Railway Comрany, they would also find in favor of that company the same sum against the International & Great Northern Railway Company. The jury returned a verdict in fаvor of the plaintiff against the Galveston, Harrisburg & San Antonio Railway Company and in favor of that company against the International & Great Nоrthern Railway Company for the same sum. The Court of Civil Appeals affirmed the judgment as between the Galveston, Harrisburg & San Antonio Railway Company аnd J. H. Nass and reversed the judgment of the District Court as between the two railroad companies, entering judgment that the International & Great Northern Railway Company go hence without day.
We find no error in this judgment as between the plaintiff in error and the defendant in error Nass, and the judgment between them will be affirmed.
To save frequent repetition of the nаmes of the different corporations, the Galveston, Harrisburg & San Antonio Railway Company will be designated as plaintiff and the International & Greаt Northern Railroad Company as defendant. The plaintiff claims that the defendant is liable to it for the amount that was adjudged against it in favor of Nаss because the defendant owned the car upon which Nass was engaged at the time lie was injured, and had delivered it to the plaintiff for the purpose of being transported on its line. The substance of the claim is that, in delivering the car, the International & Great Northern Railroad Comрany owed to the plaintiff and to its employes the duty to use ordinary care to see that it was in a reasonably safe condition for use by рlaintiff’s employes, and that the defendant negligently failed to perform that duty. It is claimed that Nass had the right to recover against either or both of the railroad companies, and that the plaintiff company, having suffered a recovery on account of the injury, has the right to be indemnified by the defendant company. If it were necessary to determine the question of liability of the defendant to Nass, we are not preparеd to say that the International & Great Northern Railway Company would be liable to him. The authorities upon that question are quite conflicting, but we nеed neither to discuss nor to decide it; for, if it be admitted that Nass might have recovered against either or both of the railroad companies, still.the question arises, can the plaintiff, after having suffered a recovery by an injured employe, enforce indemnity against the defendant whosе car he was using at the time of the injury? Assuming that defendant owed the duty to Nass to inspect the car before it was delivered and to exercise оrdinary care to see that it was reasonably safe for use, it was equally the duty of the plaintiff, for the protection of its own employes, tо exercise a like degree of care by inspecting that car before it was used, and, for a failure to do so; it was liable as if it had been its own property. Railway v. Kernan,
We are of оpinion that there is no error in the judgment of the Court of Civil Appeals in holding that the International & Great Horthern Railway Company was not liable to the Galveston, Harrisburg & San Antonio Railway Company upon its plea over in this case, and the judgment of the Court of Civil Appeals is therefore affirmed.
Affirmed.