*1 INC., NORTHERN, Plaintiffs, al., et v. BURLINGTON JOSEPHINE JACKSON FILKER, al., Plaintiff-Appellee.) Defendants-Appellants. (MICHAEL et — District No. 79-458 Third Rehearing Opinion May July 1980. filed denied Stoerzbach, Peoria, Galesburg, & for Morgan, & and Barash Davis appellants. Keller, Westervelt, N. Jackson, Johnson, and Harold

Robert D. Nicoll O’Hara, Peoria, appellee. both of Mr. of the court: opinion STOUDER delivered JUSTICE *2 Fulton appeal judgment

This from a of the circuit court of arises County dismissing defendants-appellants’ against plaintiff- counterclaim 3, 1974, driving appellee. plaintiff-appellee On Michael Filker was June Holly his car on in of that street west Street Canton near the intersection Burlington Riding passenger and the Northern railroad as a in tracks. plaintiff Josephine complaint alleges Filker’s car was Plaintiffs’ Jackson. that crossing repair was out of and that when Filker’s car reached the crossing. It crossing, undercarriage violently the car struck is on result, a injured. As alleged that as a was thrown from the car and Jackson Northern, result, Burlington (Burlington), Inc. Filker and sued Jackson City (Canton). and the of Canton Canton, defendants, answers in Burlington separate The filed negligence. they which of Later each filed they allegations denied the car, separate against amended counterclaims the driver of indemnity any might adjudged sums which be seeking against Filker and, a after against them. Filker moved to dismiss the counterclaims judgment for hearing, the trial court allowed the motion and entered judgment finding pursuant order included a counterdefendant Filker. The just delaying 304 that was no reason for Supreme to Court Rule there appeal appeal or of the order and thereafter was enforcement not the amended perfected. only appeal The issue on is whether or counterdefendant, of action counterclaims state affirm. Michael Filker. We having upon entered allowance of the

The order of dismissal been counterdefendant, pleaded all by properly facts motion to dismiss filed (Kendall (1978), 71 as true. v. Kendall by the counterclaim must be taken 1280.) taken as true for the Thus must be (a) speed at a this that Filker drove his motor vehicle purposes appeal of speed and at a proper in reasonable and excess of that which was observing Jackson; (b) without endangered safety Josephine tracks and without roadway as it crossed the railroad condition of the Street; Holly condition of keeping proper a safe and lookout for the control. proper under safe or (c) keeping his vehicle facts, indemnity Burlington and Canton seek On the basis of these to to they may compelled pay be any Filker for sums which from Jackson they that fall into charge crossing on account of the had allowed the to disrepair. To warrant dismissal of defendants’ counterclaims at case, “in pleadings stage appear pleadings of the it must from the that (Miller event” would an the counterclaimants have Filker. DeWitt 37 Ill. 2d We believe that such the case here.

Burlington indemnity theory and Canton seek active-passive negligence. They argue jury might guilty that a find Filker was primary negligence active or and that guilty defendants were secondary or negligence. They base this contention fact that Filker on the therefore, driving car over the tracks and if Filker is found that, contrast, negligent, negligence. They then this is active argue negligence charged against defendants is a failure maintain the tracks that, condition, since it was inaction which they only created the are guilty passive negligence. problem

The analysis this is that a determination of active and passive negligence is not a matter of proceeding according to the usual dictionary definitions of “passive.” the words “active” and These words are terms of art and applied must be concepts accordance with worked out courts of case-by-case review on a basis. Under certain cir cumstances, inaction passivity ordinary sense well constitute (Moody v. Chicago Transit negligence. Authority *3 113, App. 789.) 3d 307 duty N.E.2d We believe that where there is to inspect and maintain perform duty railroad tracks and failure to this proximately injury causes plaintiff, to such the conduct must be considered negligence.

This case was filed before Skinner v. Package Reed-Prentice Division Machinery Co. 1, 437, (1977), 70 Ill. permitted 2d 373 N.E.2d which and, therefore, contribution must be decided under the rule that joint contribution is nonexistent Under a rule of no between tortfeasors. contribution, may permitted only indemnification where the facts of 507, it. (Carver v. Grossman clearly justify the case (1973), 305 2d N.E.2d There can be no action indemnity unless there is qualitative distinction negligence between the of the two tortfeasors. Preston v. City Chicago (1975), 34 Ill. 322, App. 3d 340 N.E.2d of

In the instant case no such previously, distinction exists. As discussed if jury the that Burlington should find in negligent failing Canton were to maintain the proximate railroad tracks and this was a cause of the injury, then this would negligence. have be considered active As such qualitative there would be no any negligence distinction between it and driver, the jury found on part negligence the of Filker. parties’ Both proximately would have injury. qualitative caused In the absence of 970 Therefore,

distinction, trial was can indemnity action for lie. no indemnity. dismissing defendant’s counterclaim for correct of judgment of the circuit court abovementioned reasons the For the affirmed; County Fulton Affirmed.

STENGEL, J., concurs. BARRY, dissenting:

Mr. JUSTICE I opinion my colleagues I because believe must dissent from the not have third-party complaints against Filker should the defendants’ of action. been dismissed for failure to state out, majority prior supreme As this case was filed to the points v. Package Machinery court’s decision in Skinner Reed-Prentice Division Co. 437, Ill. 373 recognized 2d the existence of However, joint contribution between tortfeasors in the State Illinois. 81-601, because neither Skinner nor its (Pub. subsequent codification Act September 1979), application, eff. this given retrospective are to be pre-Skinner case is to be decided under law. to Skinner by prior mitigate

One of the devices utilized the courts implied principle the harshness of the noncontribution doctrine was the joint upon theories of active indemnification between tortfeasors based original action is passive negligence. the defendant “[W]here third-party guilty only passive negligence and the defendant original in the guilty negligence, action is of active the defendant third-party from defendant in the action the amount recover judgment original in the action.” rendered defendant Leasing Trzos Berman Co. 176,181, App. 787, 790. bar, majority

In the case at both the trial court and the conclude pleadings Burlington the basis of alone that Northern and Canton’s and that crossing negligence, failure to maintain the constituted active consequently action could be maintained them believe, however, that under these the driver of the automobile. plaintiffs’ complaints any facts dismissal of the negligence having active/passive evidence been heard on the issue of premature clearly point, following On this statement erroneous. *4 Bakeries, Sargent v. Inc. Interstate 86 Ill. (1967), made the court 775-76, 187, 200, 769, App. apropos: 2d 229 particularly N.E.2d is course, “Of a if it fails to third-party complaint may be dismissed complaints state a cause of action. But motions to dismiss such circumspection. before is heard must be examined with evidence degrees always certainty the relative Pleadings do not reveal or defendant. third-party plaintiff the negligence of either third-party original the or the Allegations negligence either withdrawn, substantiated, may some be complaint may not be questions may proof; others be added to conform to factual many In disputed by conflicting testimony be raised or evidence. that a it has been heard court only of these cases after evidence third-party a accuracy can decide with reasonable whether the passed upon by or the issues complaint should be dismissed jury.” v. 287,245 Todd App. Gillette 2d N.E.2d

The case of Gillette, 923, fully supports plaintiff this view. In the school teacher Todd, Oil injured when an the Suburban employee defendant Company, building. a in a Gillette opening struck her while door school subsequently brought against a personal injury action both Todd Oil. brought third-party against Suburban The defendants then action district, alleging plaintiff the school that was due to the injury the the negligence third-party designing, constructing, active of the defendant equipping On the school injury. the door which caused the motion of district, that third-party grounds the trial court dismissed the action on the third-party plaintiffs joint the tort third-party defendants were feasors, and no contribution could be had.

On appeal, appellate the the the com affirmed dismissal of plaint, finding negligence original was neces defendants active, sarily and they “obviously possibility recovery against had no as 287, 294, (106 the school Ill. App. district.” 2d 245 N.E.2d However, state, “If Alloy, writing majority, for the went on to then Justice district, original against action had been and it filed third- school Oil, party complaint against as Todd and Suburban then would necessary to hear the evidence to determine if the conduct of the school (106 was active basis Ill. App. on the of the record before us.” 287,294,245 exactly 2d This is in the instant 923,927). situation Taking alleged case. facts in Burlington Northern and Canton’s third- true, party complaints as it is clear actions constituted Filker’s negligence, physical injury as it was his primarily act which caused action plaintiff. originally brought personal injury Had Jackson Filker, against railroad against action maintained, of the negligence indemnification could be whether (Gillette; Chicago city passive. railroad and the is classified as active or Ry. Illinois Co. Midland Co. Evans Construction However, 573). original not plaintiff’s action was of Canton City and the against Burlington but Northern Gillette Following the driver. brought then *5 plaintiffs’ that evidence must be heard before the believe classified as either conduct can be these facts. To evidence, plaintiffs’ complaints hearing dismiss the possibility recovery, when on its face shows a was erroneous. Trzos. reverse the order of circuit dismissing Burlington would indemnification, third-party complaints Northern and Canton’s remand this directions to the circuit court to third- reinstate the party plaintiffs’ complaints. BOOK, A. L. Book SCHILLING, L. Plaintiff-Appellee, A.

HARRY d/b/a Co., al., Defendants-Appellants. et 79-22 District No.

Third July 1980. Rehearing May denied Opinion filed