On the other hand, in cases in which both joint tort-feasors are guilty of active negligence, and the negligence of both concur in causing the injury, neither is entitled to indemnity against the other, although in a jurisdiction such as the District of Columbia, there may be contribution between them. Thus in D.C. Transit System, Inc. v. Slingland, 105 U.S.App.D.C. 264, 266 F.2d 465, 72 A.L.R.2d 1290, a truck was parked in a portion of the space reserved for bus stops. The driver of a bus, desiring to make a regular stop at that point, had to stop the bus with its rear partially in the next lane. A mail truck came along and started to go around the back of the bus, but struck its left rear corner, causing a passenger in the bus to be thrown and hurt. The passenger was allowed to recover damages jointly against the transit company and the United States. The transit company sought exoneration or indemnity from the United States, on the theory that the driver of the mail truck had the last clear chance to avoid the accident. The court held that the transit company was entitled not to complete exoneration, but merely to contribution, presumably on the theory that each was guilty of active negligence and the negligence of both concurred in causing the plaintiff's injury.
In Warner v. Capital Transit Co. (D.C.), 162 F.Supp. 253, it was held that there could be no indemnity as between two joint tort-feasors if each was guilty of active negligence, irrespective of the fact that the degree of negligence of one might have been greater than that of the other.
A somewhat similar situation was presented in Union Stock Yds. Co. of Omaha v. Chicago, B. & Q.R.R. Co., 196 U.S. 217, 25 S. Ct. 226, 49 L. Ed. 453. In that case a shipper of freight delivered a defective refrigerator car to a railroad. The latter, in turn, turned over the defective car to a stockyards terminal company. An employee of the latter was injured by reason of the defect in the car, and recovered damages from his employer on the ground that the accident was caused by the employer's failure to inspect the car properly. The latter, in turn, sued the railroad company for indemnity on the theory that the railroad was also guilty of failure to inspect the car and had the first opportunity to do so. The Court did not allow indemnity, since each party had been guilty of a like neglect of duty, and the fact that the duty of inspection had been imposed first on the railroad company was immaterial.
It is argued in behalf of the District of Columbia that 'but for' the negligence of Sinclair, which compelled the plaintiff to walk around the front of the truck, the plaintiff would not have been injured. This statement is correct. The converse, however, is equally true. 'But for' the negligence of the District of Columbia in failing to repair the defect in the street, the plaintiff likewise would not have been injured. Obviously, each of the two defendants was guilty of active negligence. It is of no moment that the negligence of Sinclair occurred subsequently to the negligence of the District of Columbia. The concurrent negligence of each caused the pedestrian's injuries, and both should be liable.
The Supreme Court of Missouri, in Shafir v. Sieben, 233 S.W. 419, 424, aptly discussed a similar situation, involving a municipality, in the following manner:
'Both were commingled in the single act of the injury. The argument by which it is attempted to separate them is specious and artificial. All were negligent in their participation, and no principle of law has a deeper foundation or is more firmly established in this state than that every tort-feasor whose wrongful act concurs in inflicting the injury is liable for the resulting damage. The completed wrong is the joint act of all, so that the man who holds the victim is jointly guilty with the man who beats him.'
Able counsel for the District of Columbia places strong reliance on the decision in Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 327 et seq., 16 S. Ct. 564, 40 L. Ed. 712. This court, however, takes a different view. That case is within the group of those in which one party is required to respond vicariously for the negligence of another, or at best is of the type in which one party is guilty of secondary or passive negligence, while the other is charged with active and primary negligence. The District of Columbia had granted a license to the Washington Gaslight Company, at the request of the latter, to open a street for the purpose of placing a gas box to connect a main with a house where gas was to be used. The Company failed to keep the box in a proper state of repair, causing injuries to a pedestrian due to a deep and dangerous hole surrounding the box. The pedestrian recovered judgment against the District of Columbia on the ground that the District had been guilty of a breach of its duty to maintain the street in a reasonably safe condition. The District then brought suit for indemnity against the Washington Gaslight Company. The Supreme Court held that the District of Columbia had a good cause of action, as the gas company was the principal delinquent and, therefore, should be held responsible to its co-delinquent for damages incurred by their joint offense.
In the case at bar, however, the Sinclair Refining Company in no way brought about the defect in the street, and surely was under no obligation to repair it. Each of the two defendants was guilty of a separate act of primary and active negligence. The acts of negligence were concurrent and in combination caused the injuries sustained by the pedestrian. Under the circumstances, the decision on which the District of Columbia relies does not support its contentions, but inferentially, at least, leads to the opposite result.
This Court concludes that the District of Columbia is not entitled to indemnity against the Sinclair Refining Company, and accordingly its cross-claim will be dismissed. On the other hand, contribution as between the two defendants will be directed.
Counsel may present a proposed judgment in favor of the plaintiffs against both defendants on the verdict of the jury; dismissing the cross-claim of the District of Columbia against the Sinclair Refining Company; and making suitable provisions for contribution as between the two defendants.