*1 53,327 No.
Sylvester Burlington Plaintiff-Appellee, Gaulden, North- St. Railway Successor Louis-San Francisco Com-
ern, Inc., Defendant-Appellant, pany, A. Defendant-Ap- pellee.
(654 383) P.2d *2 Opinion filed December 1982. Wichita, Gott, argued the cause Jr., Young Bogle, P.A. of & Young, of Glenn D. defendant-appellant. was on the brief
and cause, Kamas, Wichita, Roger argued the and Sevart, & of Render Daniel J. plaintiff-appellee. Theis, firm, brief for with him on the the same was M. Wichita, Tinker, Hiebsch, argued the Hiebsch, & Robbins Kenneth H. Nordboe, firm, with him the brief for cause, was same and Connie J. defendant-appellee. was delivered opinion of the court The defendant, appeal by Burlington This is Miller, J.: (the railroad), to the St. Louis-San Northern, Inc. successor (Frisco), a Railway Company Francisco plaintiff, Sylvester it in favor of $750,000 entered District Court. Gaul- Sedgwick a trial in Gaulden, following jury action to den, employee, brought Frisco recover a former the railroad under the personal injuries against Act, Liability 45 U.S.C.A. Employers’ of the Federal provisions the driver (FELA), James, seq. 51 et § accident, crossing in a that the alleging involved pickup truck injury. pri- caused him of the defendants joint negligence appeal failing is whether the trial erred mary issue on jury. to the issue of submit-the James’ on November 1979. employed as a brakeman Gaulden was pushing freight was eleven while train The accident occurred Kansas, crossing Augusta, over the State Street cars on the north side of the operation. riding was Plaintiff switching approached crossing. it lead tank car as front end three to four miles moving speed approximately at a train was feet a switch some 575 west passed hour. over per lights on each side of the eight flashing which activated crossing, Gaulden, lantern warning carrying signal bell. crossing, and crossing pack, preparing flag radio was and a walkie-talkie rules, and as was his by transportation department required as is approaching truck duty. pickup saw the Plaintiff north, step train and he started to off crossing from the paused or down and crossing. The truck slowed flag order so, car, and as he on the tank did stepped Gaulden back stopped; apparently he heard the truck accelerate. try decided to through beat the train started Gaulden crossing. called radio, a warning engineer immediately out to the over his jumped clear in to avoid being order struck the truck. The tank right quarter pickup. car collided with the rear When knee; Gaulden jumped pavement, injured he it has right times, progressively hospitalized become worse. He has been six unable work. been 27, 1980, Plaintiff filed this action on March against both the answered, denied negligence, James. James that the alleged railroad’s was the sole cause of the collision. The railroad denied negligence, claimed contributorily and that negligent, James’ was the direct cause of the collision. The railroad also asserted cross-claim against over him claiming and con- *3 that he tending any was liable to the railroad for sum which the employee might be awarded the in this action. 27, 1980,
On October settled his claims against James $50,000, and executed Release Agree- and Indemnification unusual, ment. The terms that of document are somewhat and are concept tailored to the of In order to place in the discussion that follows we proper perspective, set out principal portions the that of document. reads: “Now, Therefore, I, Gaulden, Sylvester heirs, undersigned, myself, my the administrators, executors, assigns, for successors and and in consideration the of payment Fifty ($50,000.00),by of the total amount of Thousand Dollars Farmers Company, James, undersigned, Insurance Inc. on of A. the behalf the Jack receipt hereby good acknowledged, of which and amount other and valuable consideration, release, hereby discharge following do remise and the forever firms, persons, officers, corporations respective agents, named and and their successors, insurers, them, employees, only persons, and and each of and firms, corporations Company, and to-wit: A. Insurance and Farmers Jack Inc., any claims, demands, rights of from and and all causes of of or may undersigned whatsoever kind has or nature which the ever had or now have may have, unknown, unforeseen, or hereafter foreseen whether now known or or with, losses, arising by any way any injuries, or reason of or connected loss, thereof, damages, disability, property suffering, damages or or the results may undersigned as which has been or hereafter be sustained the heretofore arising of that result or connection with or out of certain accident which day November, occurred or about the 22nd of at the intersection of Sixth on railway Augusta, County, Street and the tracks in Butler Kansas. represented by undersigned injuries has the the “It been the that sustained and suffering damages undersigned persisted resulting the have and and therefrom indefinite, making this release and recovery and and therefrom uncertain that agreed undersigned relies the under- that the agreement understood and it is attorneys physician knowledge, of signed’s and that of the own beliefs and nature, symptoms and duration of undersigned, as to extent injuries. hereby compromise is a settle- release and effected settlement and made “The Company, and Farmers undersigned A. Insurance ment of the with Jack (hereinafter parties’) nor the settling and neither this release called 'the Inc. pursuant payments as an admission of of shall be construed made thereto damages any settling being of parties, denied. The total claims for said the same of of undersigned of the aforesaid consideration amount to more than amount parties $50,000.00 undersigned settling paid herewith and credited to parties hereunder, knowing settling undersigned, being and the released undersigned’s paying of full are the total released hereunder and herein interpleaded damages all defendants claim of as would be if defendants action, including settling all pending A. were said action and in said hereby satisfy therein, undersigned does credit and claims for undersigned portion undersigned damages of the which of the total amount of has aforesaid accident which and will suffer because of the been suffered parties may any, settling as negligence, hereto such of caused disposition in the further trial or other hereafter be determined be case action, undersigned any being the to release it act intention of or other portion hereby discharge discharge, and he does release and that fraction damages against and claim for all of his total causes of action parties Sedgwick pending in the Court in said Case No. 80 C 741 District Kansas, hereafter, County, disposition which shall the further or other any action, portions be the sum of or fractions or this or determined other settling percentages hereto for which respect responsible causing with are be liable and said accident found to Gaulden; Sylvester recovery finding said made save, hereby reserve, preserve against undersigned maintain and St. Louis- does Railway Company the whole cause of action San Francisco the balance of Railway Company, undersigned against St. Louis-San Francisco which balance of Except specified, cause action is not released hereunder. above said *4 Railway Company, undersigned from does not release St. Louis-San Francisco any liability rights, specifically reserves his claims and causes of for and action, aforesaid, Railway Company. against as St. Louis-San Francisco payment undersigned, by the the “In further consideration of aforesaid hereto, injuries parties undersigned, settling damages, the for the and claims of heirs, administrators, executors, himself, and undersigned, the for his successors indemnify hereby indemnify agree assigns, and save harmless said does and to successors, officers, employees, assigns respective agents, and his A. Jack may required upon any (1) any they pay will to amount that or insurers: costs, any) (exclusive against
judgment defense and court obtained them of costs Railway Company by joint including the Francisco or St. Louis-San tortfeasor any way any party any party other other to said action or contribution any undersigned resulting arising herein from said accident out the of of 22, 1979, by respect undersigned with made the all claims of November thereto, any satisfy judgment against settling parties, the to and does hereby agree, attorneys thereto, stipulation further and authorize his execute to dismiss, undersigned any to merits and without costs to the settling parties, action, against James; (2) said No. C Case as A. Jack any upon proceeds by for and from lien claimed settlement made herein Board, Transportation the Railroad Retirement the United Union Insurance Association, any person. other undersigned, performance obliga- “The in order assure his to effective his indemnify, foregoing agreement agrees tions reason further follows: “(a) negotiated against That in the event he makes settlement of his claims Railway Company, St. incorporated Louis-San Francisco there will be into agreement by Railway such settlement an the St. Louis-San Francisco Company releasing any payment A. claims reason itsof Jack James undersigned prejudice made to the and a dismissal with of its Cross-Claim against suit, A. in the aforesaid Case 80 C No. 741. Jack James “(b) judgment against That in the event he in Case recovers No. C 741 Railway Company, St. Louis-San Francisco he will cause to be filed in said partial judgment action a satisfaction of said to the extent that the said Railway judgment against upon has obtained a A. its Cross- Jack James Railway filing judgment upon Claim in return for said satisfaction of its Cross-Claim A. Jack “(c) may That to the extent that he collect funds from St. Louis-San Fran- Railway Company, cisco that he will cause said funds to be channeled through attorneys, hereby & offices of his Render Kamas he does authorize, empower attorneys, direct and the said Render & Kamas proceeds withhold from the such funds received settlement made proceeds herein and from received amount settlement or Railway Company, St. from the Louis-San Francisco its behalf, necessary carry obligations such amounts as are out the indemnity undersigned pay aforesaid and to over the said sums provisions indemnity terms entitled thereto under the of said agreement. Gaulden, Sylvester himself, undersigned, “It understood that the heirs, executors, administrators, satisfy assigns, agrees successors and on behalf parties any any judgment may settling amount to which he be found to be entitled A. the extent over above of the fraction his cause James of action hereinbefore defined and released hereunder. foregoing agreement “The release and indemnification has been read and undersigned signing understood before thereof. Whereof, undersigned “In Witness has hereunto set his hand seal this day October, 27th 1980.” settlement, moved to dismiss his action
Following prejudice; with that motion was granted court, 4,1980. 13, 1981, On February after on November hearing summary judgment moved for on the cross- him. This was argued claim of the railroad on March *5 simply ruled that The court sustained. was motion fact, and that issues material were no controverted there James of law. The railroad’s as matter to judgment was entitled express an trial court make (1) that the requesting either motions delay expressly for just reason that there no determination 60-254(b), or under K.S.A. entry for judgment direct of the for entry (2) that the declare an immediate of law and that controlling question involves pursuant to K.S.A. litigation, may materially advance appeal the trial a continuance of 60-2102(fe), (3) grant that the court and denied. date, were all argued Monday, March 1981. following on the Trial commenced verdict, finding negli- that jury returned its days Four later the to the and the contributed of both the railroad gence plaintiff’s percentage injuries, fixing resulting accident and at one 25%, damages the amount of fixing fault at 25%, as court reduced that amount dollars. The trial million FELA, the railroad judgment against and entered required by the per- $750,000. required determine fault, any, the defendant The motion centage of appeal followed. and denied. This argued new trial was provides 45 U.S.C.A. 51 in substance an FELA case. This is § in inter- engaging railroad while every carrier that common any commerce, person suf- damages “shall be liable state employed . . . such carrier injury while fering commerce,” “in whole or in from the if the resulted officers, employees of such agents, of the provides employee’s .” that an . 45 U.S.C.A. carrier. . § recovery, damages bar “but the contributory shall not proportion to amount of ... be diminished shall Thus, employee.” where contrib- to such negligence attributable claimed, pre- the FELA employee utory negligence whereby propor- scribes a form of total causal attributable share of the tionate determined, re- employee is denied employee must proportionate part ascribable to covery fault. provision for the reduction of recov- makes no
FELA
of the fault
the carrier
account
employee against
erable
imposed upon the carrier for
Liability is thus
person.
third
*6
by
employee except
all damages
any part
sustained
its
attributa-
employee,
ble
if the
is
negligence
injury wholly
or
partly
caused
the railroad’s
The
purpose of the act
employer
pay
is to
to
to an
require
damages
injured employee
employer
any way
in
caused or contributed to the injury.
The
to maintain the
right
action
to recover against
employer
statutory
is
federal
governed
law. The rights of
employee
and the obligations
employer may
not be
law, rule,
practice.
diminished
state
regulation,
See Dutton
782,
(Tex.
v.
Transp.,
Southern
576
1978).
S.W.2d
784
Pacific
FELA does
a
provide
vehicle for the determination of the
fault
party,
of a third
and the act
provision
likewise makes no
the carrier to
recover over
a third
party
damages
party’s
caused
negligence
third
for which
the carrier
statutorily
employee.
liable
A
to
railroad’s
to
right
recover
indemnity or
party
liability
contribution
a third
incurred
under FELA depends entirely on state
See
law.
Schrier v. Indiana
Co.,
561, 402
Harbor Belt R. R.
82 Ill. App.
(1980);
3d
872
N.E.2d
Co.,
Penn
v.
Corp.
(D.
Central
Checker Cab
Does a it damage premised upon FELA negligence, the railroad’s have the right law under Kansas to indemnification contribution from party injury? third whose caused or contributed to light issue in our explore turn to
We
statute,
60-258a.
K.S.A.
impose
liability
individual
statute is to
purpose of that
concept
joint
fault. The
upon proportionate
damages based
applies, and
joint
no
longer
between
tortfeasors
several
upon proportionate
judgments
individual
will
based
since
joint
longer
fault,
among
judgment debtors
no
contribution
Keill,
(1978).
224 Kan.
among the tortfeasors. comparative negligence when settle- “This court concludes that in cases full liability injured party accomplished of all and a release ment an been obtained, responsibility proportionate among the should be causal tortfeasors indemnity degree determined and should be decreed based on of causation 460, respective at tortfeasors.” 228 Kan. 461-462. 60-258a(c) into a provides bringing K.S.A. mechanism parties causal comparative negligence negli- other whose gence damage. claimed to have contributed to followed, railroad addi- That statute was and on motion of the R. parties joined, were in Ellis Union tional Pacific Co., 182, (1982). 158 Neither nor R. 231 Kan. 643 P.2d defendants, the railroad claims the additional asserted ran all such claims. The statute of limitations secured a release of all railroad settled with the parties. indemnity the additional sought The railroad then indemnity concept comparative implied defendants under In Ellis we held that adopted Kennedy. as announced and railroad, all not parties, claim behalf of could by settling the broaden of defendants whom no claim asserted. We affirmed order of the trial dismissing implied Ellis, claim indemnity. railroad’s course, was case. FELA
We have consistently
liability,
held that all issues
including
fault
parties
occurrence,
of all
to an
lawsuit,
should be determined in
participants
one
whether the
are
formally
joined
v. Keill,
that lawsuit or not. Brown
195;
Alkire,
236,
224 Kan.
Enrich v.
224 Kan.
As discussed the trial court dismissed the railroad’s against James, cross-claim and it refused to submit the issue of fault jury. The verdict form the jury submitted to James’ required sustained, it to determine the total whether the railroad, both, plaintiff, causally were negligent, and percentage of total fault attributable to the plaintiff. It did not call determination of The railroad con- James’ error; tends that this was that the issue should have been sub- mitted; and that under Kennedy it entitled to recover over or, under the terms of Release and Indemnifi- Agreement, cation receive credit on for the dollar amount of the judgment proportionate to James’ of causal fault. Plaintiff and contend that Kansas law is not *8 applicable; Kennedy that is limited to its facts and inapplicable here; and the prohibits that Kansas rule which contribution joint among implied indemnity tortfeasors and which limits to active-passive the is applicable this, doctrine still cases as to such and that under those rules railroad is entitled to nothing. stated, recovery against third-party
As we have right over by dependent upon it law; tortfeasors the railroad is Kansas is not provided by Further, concept FELA. of indemnification passive-active is negligence longer based no available to a joint part as a all recovering tortfeasor means or of the loss. comparative
Our is negligence designed place statute carrier, loss it. A upon those who cause railroad or other under FELA, by employee must bear all of loss sustained an which by jointly persons. is caused the fault of the carrier and third position is then a placed carrier of one who settled loss the situation analogous This is another. caused brought whom suit is against that a carrier Kennedy. We hold employee within this injuries FELA for sustained under or com- right have a of contribution state should have does law, a third indemnity, against Kansas parative implied under (1) tortfeasor, party’s it the third is established party once or partially caused contributed to negligence (3) (2) negligence, carrier has some causal damage, that the is less than 50% of injured employee’s negligence that the the causal fault We further hold that the total causal contributory parties, including all third of the carrier and the fault parties, be submitted should determined in one lawsuit. each carrier, in an of a FELA right We hold also indemnity,” case, “comparative implied as to seek contribution or above, depend tortfeasor third-party from a does not delineated upon against party a the third whether claim is asserted party, its a employee. right against In order to third injured assert lawsuit, party a into the means of carrier must the third bring 60-258a(c) (if already not party otherwise the third is K.S.A. lawsuit), and must claim for contribution or “com- assert parative indemnity” party the third implied against before the limitations, running party of the statute of so that third will be may subjected monetary aware that he or she appear joinder claim. a third can and defend Mere 60-258a(c) party enough, pointed K.S.A. as out in Ellis; in joinder, addition to claim must be asserted hand, party, James, the third party. third In the case at defendant, timely and claims were asserted him in fash- ion both and the carrier. comparative our statute so application fault of third and the amount
determine entitled, all recovery over to which carrier in the same lawsuit, with, lessen, destroy right will not interfere FELA, employee it dimin- granted the carrier nor will employee. provides ish the carrier to obligation of the procedure determination simple, single rights for the *9 case, In out of the occurrence. obligations arising James
215
made a
by
plaintiff;
the railroad did not
him
bring
did, however,
in. It
assert a claim over
him.
against
We next
James,
consider the settlement with
and the effect of
the release.
The latter is known as “Pierringer release” because
similarity
of its
to the release found
the case of
v.
Pierringer
21 Wis.
124
Hoger,
(1963).
2d
N.W.2d 106
The basic ele-
ments of such a
in Frey
release are stated
Snelgrove,
918, 920,
(Minn. 1978),
N.W.2d
n. 1
as follows:
“(1)
settling
discharge
release of the
defendants from the action and the
aof
part
equal
of the cause of
settling
action
to that
attributable to the
defendants’
(2)
the,remainder
negligence;
plaintiff’s
reservation
causes of
defendants;
nonsettling
(3) plaintiff’s agreement
to indem-
nify
settling
defendants from
claims of contribution made
the non-
settling
satisfy any judgment
nonsettling
obtained
de-
settling
fendants to the extent the
defendants have been released.”
type
This
nf release
premise
is based on the
that each tortfeasor is
only
liable
portion
for that
loss occasioned
his or her
percentage of the
total causal
In
Pierringer,
held
spite
release,
that in
the negligence of the settling
defendant should be submitted to and
jury
determined
during
of an action
defendant.
nonsettling
See
Ryan,
(Minn.
also Lines v.
1978),
N.W.2d
Co.,
Nagunst v.
(D.
Western Union
share of the causal negligence. no could be entered in favor of Gaulden and on the claim James lawsuit, asserted Gaulden in this properly trial judge Gaulden, by dismissed his claim against virtue of the release and indemnification released agreement, discharged portion of his total cause percentage of action and claim for damages of causal corresponding indemnify agreed judgment over James him by the railroad. The trial court properly dismissed party defendant, as a presence since his further in the James litigation would purpose. serve no useful proportionate share damages, protected and has liability by himself from further the release and indemnification agreement. matters not to whether a hereafter proportionate part determines his of the total causal *10 paid has and settled percentage, be Whatever 100%. 1% to him. for the attributable damage however, refusing submit erred, failing and to The trial court already jury. Plaintiff has negligence the issue of James’ his damages caused receipt portion acknowledged of that the causal Under proportionate negligence. share of James’ that release, plaintiff discharge “release and did terms of of his total causes of action portion fraction and and damages claim [in for ... be . . . determined to be which shall case] causal percentages negligence portions sum of or fractions responsible be . . found to liable is] for which . [James (Emphasis supplied.) . . . .” causing said accident recovery for portion is make double that Plaintiff not entitled to by the injuries of his caused damage accept payment volunarily that Plaintiff chosen release, his Absent the settlement and damages from James. under FELA to recover from would be entitled portion that his injuries, except his caused railroad all of however, case, contributory Under the facts of this plaintiff’s the railroad for that remaining sole claim portion of caused and attributable causal damages his retrial, Upon jury must of the railroad. determine plaintiff’s proportionate and the share of the total damages, plaintiff, and to the railroad. attributable to plaintiff and then entered for Judgment should share of attrib- proportionate damages that utable to the railroad’s negligence. disposition only point
We hasten out that mandated release, unique. makes this case Had there because which release, have been directed to jury been no should determine proportionate the total railroad; have plaintiff, James, judgment would then the railroad for all been entered for contributory that to his damages except negligence, attributable have entered in over would been favor portion of the attrib- railroad and for that against James proportionate negli- share of the total causal utable James’ gence. trial appellant complains
The of certain errors. contends computer admitting print- into evidence court erred out, a copy for the that counsel had not been furnished reason advance. This will recur on retrial and therefore issue we need not decide it.
Next, appellant contends that the trial court erred in its damage expenses. instruction to consider permitting medical already railroad contends that it had items. those payment evidence of is not clear. The railroad offered no direct payment, attempted payment evidence of to establish *11 Mr. through cross-examination of and Mrs. Mrs. Gaulden. Gaul- expenses den did not know whether the were the railroad not, and Mr. Gaulden testified that reimbursement for certain expenses forthcoming. Apparently was this not issue was much disputed. payment railroad, If the direct was made it may be entitled to set 55; payment off such sums under 45 U.S.C.A. § carrier, was made procured by only insurance the then premiums- paid, proceeds, may and not the insurance be the subject of See setoff. Blake Railway Delaware Hudson Company, (2nd Upon 204 Cir. 1973). F.2d state of the record, however, did in not err permitting jury expenses. consider medical
Finally, the railroad that the trial contends court erred in admitting testimony of an altercation between railroad which in employee, occurred the railroad shortly offices trial. before The railroad contends that evidence was not relevant purpose passion and was introduced for the sole of injecting prejudice in the jurors. difficulty minds of the The with this claim objection that the sole to this evidence at trial was made on the hearsay, objection basis of and that properly was overruled objection trial court. No was made the grounds on testimony relevant, that it would prejudice not objection specific required by A defendant. rule, contemporaneous objection 60-404, K.S.A. was not inter- posed. predicated Error cannot be admission of this objection specific evidence in the absence of at trial on the now grounds urged. record,
Under all of the circumstances disclosed this we conclude that the must retried. The judgment case reversed proceed- cause remanded to the district court for further opinion. in with ings conformity this JJ., participating.
Fromme, Herd, of the with the decision C.J., concurring. agree I Schroeder, and to remand the of the trial court reverse the court to issues, including the extent of trial on case for new proportionate part for determination damages and James, by superimposing attributable to plaintiff’s damages on this Federal Em- statute comparative negligence the Kansas Liability ployers’ Act case. unique guidelines is a case to set must be conceded action.
proportional contribution clearly to avoid mis- must be understood controlling facts precise opinion written issues construing the court. quite determined are narrow. employee of the
First, plaintiff, the action was filed (the railroad), provi- Northern, pursuant to Inc. Burlington Act, U.S.C.A. 51 Employers’ Liability the Federal et sions of § liability on initially imposes all seq. This federal statute if the injured employee for an resulted whole railroad, except that the total the negligence of proportion amount of damages are to be diminished employee. negligence attributable to Second, only petition in his sued not the railroad pickup involved in the but the driver of the truck *12 accident, recovery for his crossing seeking damages from railroad both defendants.
Third,
railroad,
timely responsive
in
a
pleading,
a
asserted
contending
was
to the
against James,
cross-claim
liable
James
might
be awarded
plaintiff
railroad for
sum
in this
under K.S.A.
subse-
60-213(g).
James
proportionate
quently
plaintiff
settled with the
for his
share of
plaintiff’s damages
the causal
to the
negligence contributing
liability
plaintiff
in a
was
full release for his
written
given
Release,”
“Pierringer
quoted
and discussed
document known as
is a
opinion.
in the court’s
This release
contract framed under
plaintiff
on the
comparative
principles binding
pleadings
upon
On this
facts
foregoing
state
very beginning
was on notice
lawsuit that
fames
from
subject
monetary
him
both
and the railroad could
plaintiff
Ellis v.
liability.
clearly distinguishes
This
the case from
Union
158,
Co.,
182,
rehearing
Kan.
643 P.2d
R.R.
aff'd
Pacific
Kennedy
City
232 Kan.
(1982).
Under these proper, my opin- facts circumstances it is ion, in a negligence action to recognize propor- the doctrine of tional contribution as inherent of the comparative negli- gence statute. Accordingly, monetarily can held liable to James the railroad for proportional part of the causal negligence attributable to the damages.
Unfortunately the court holds the ruling the trial court dismissing proper. from the action With position this I James cannot agree. plaintiff An action filed against James the initial pleadings, him one of the making original addition, lawsuit. In a separate claim was filed James above, the railroad under As discussed 60-213(g). was suffi- cient under the negligence statute to assert a claim comparison potential liability of fault and James proportionate contribution. settlement with the James’ only released him from for the claim asserted pleadings in his and to save in the harmless event the railroad recovered for his proportionate from *13 share of the negligence. agreement operate This not did to release comparison from claims for proportionate of fault and James effectively contribution asserted him the railroad in its Despite cross-claim. the release agreement and indemnification plaintiff, entered into continued be a to James James action, unambiguous language clear and party to the effect, 60- claim under 60-258a(c) is to be because given exist. by the railroad continued to 258a(c) asserted James 60-214(aJ, places a which 60-213(g) A claim asserted under propor- potential liability third-party defendant on notice comparative negligence principles, under tionate contribution under party to action third-party defendant renders liability fault 60-258a(c) comparison of purposes This is not Kennedy. status proportionate contribution third-party enter plaintiff and defendant destroyed because the them. into a settlement contract as between say properly was dismissed from seems inconsistent to James the trial party, judgment as a and then reverse the to the trial failed and refused ground court on the that court jury. In negligence reversing submit the issue of James’ issues, trial on with the case is remanded for a new all for jury submitted as an issue determi- be James’ comparative principles. Keeping nation under James liability his to the party change the action as would proportionate his share of plaintiff, because James protected himself the release and damages and agreement. indemnification would not be able 60-258a(c), Under recover twice defendant puts a cross-claim having asserted James liability, and railroad is to have potential on notice of entitled regardless remain as in the lawsuit party James James’ with the This all issues of plaintiff. permits settlement original within the context of the litigated to be responsible potentially are available. lawsuit where represent retain him as a Whether continues to counsel to James action, however, party entirely in the is a matter within discretion.
I in the reached the court. court directs concur result plaintiff’s damages, that retrial the determine the upon to the proportionate share of total attributable plaintiff, railroad; that and to the should then entered for the railroad for that proportionate plaintiff’s damages share attributable properly I do not agree railroad. Under the party dismissed as from the lawsuit. negligence statute party ais action.