#### J. W. DOLES, Administrator of FRANK BROWN, v. SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 11 September, 1912.)

1. Carriers of Passengers — Negligence — Boarding Passengers — Starting of Train — Contributory Negligence — Evidence—Questions for Jury.

Upon conflicting evidence, in an action against a railroad company for damages for tbe negligent killing of plaintiff’s intestate, as to whether the defendant’s passenger train suddenly moved forward at once after “All aboard!” had been called by the conductor and immediately after tbe signal for starting had been given, preventing, in the presence of tbe engineer and porter, tbe plaintiff’s intestate from gaining a foothold on the steps of tbe car he was endeavoring to enter as a passenger, because of tbe speed of tbe train, in consequence of which be was knocked under the cars by a truck left there by an express'company, and killed; or as to whether the intestate’s death was attributable to his own negligent act in attempting to board the car of a moving train after having been warned not to do so, the ques*319tion of defendant’s actionable negligence is one for the determination of the jury. Roberts v. R. R., 155 N. C., 70, cited as controlling.

2. Carriers of Passengers — Negligence — Dominant Cause — Joint Tort Feasors — Indemnity—Contribution.

When the negligence of a railroad company causes the passenger getting aboard of its passenger train to be thrown against a truck of an express company left by the latter company near the train, and thence beneath the moving train, to his death, and the railroad company is sued for damages for the wrongful death thus inflicted, assuming that the truck was negligently left in a position to contribute to the injury, the negligence of the railroad company would be the dominant cause thereof; but if otherwise, the two companies would be joint tort feasors, and, in this case, there would be no right of indemnity or contribution existing in favor of the railroad company against the express company, its codelinquent. Gregg v. Wilmington, 155 N. O., IS, cited and distinguished.

Appeal by defendant from Cline, J., at March Term, 1912, of NORTHAMPTON.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.

S. T. Stancell, Peebles & Harris, and, Gay & Midyette for plaintiff.

Mason & Worrell and Murray Allen for defendant.

Walher, J.

It is not necessary to make an extended statement of tbe facts in tbis case. Tbe plaintiff’s intestate, Frank Brown, was killed at Suffolk, Ya., while, as alleged, be was boarding tbe defendant’s passenger train at that place, bound for Margarettsville in tbis State. Tbe plaintiff’s testimony tended to show that tbe intestate purchased a ticket for bis passage from Suffolk to bis destination, and was in tbe act of getting upon tbe x>assenger coach just after tbe conductor bad given tbe call, “All aboard!” when tbe train was started — “at once after tbe signal was given,” and tbe intestate, who was unable to gain a foothold because of tbe speed of tbe train and tbe crowded condition of tbe steps and platform of tbe car, was knocked under tbe cars by a truck of tbe Southern Express Company, which bad been left on tbe platform at tbe station, within a few feet of tbe passing train, and killed.

*320One witness testified that tbe train started with a jerk and “with full force,” while passengers were trying to alight from the train and the intestate was attempting to get on the steps, and that plaintiff could have been seen by the engineer and the porter, who called for passengers to get aboard.

. On the contrary, there was evidence tending to show that the train started at its usual speed, and that intestate was leaving the car and jumped on the truck and was killed. There was also evidence that he was warned not to leave the car by the porter, who told him that he would have the train stopped so that he could get off safely. ,

It may be said generally that some of the evidence tended to show negligence on the part of the defendant, which approximately caused the intestate’s death, while there was other evidence which tended to prove that the intestate’s death was caused entirely by his own fault in jumping from'a rapidly moving train. The court submitted the case to the jury in a charge which fully explained every phase of the evidence and clearly set forth the law applicable to the facts as they might find them to be.

The charge of the court was in accordance with the principles laid down in Roberts v. R. R., 155 N. C., 79, and the essential facts of the two cases cánnot well be distinguished. That case must control our decision in this one on all the points raised, by the defendant, except the contention that the court should not have entered a nonsuit upon the evidence as to the Southern Express Company. The defendant objected to this ruling of the court, and relies upon Gregg v. Wilmington, 155 N. C., 18, to sustain his objection. But we do not see the analogy between the two cases. In that case, Wolvin’s negligence was active and the efficient cause of the injury, while the negligence of the city of 'Wilmington was merely passive, in allowing the dangerous condition, brought about by Wolvin’s negligence, to exist in one of its streets. The city did not actually cooperate with Wolvin in committing the wrong to the plaintiff’s intestate.

In the Gregg case, approving what is said by Judge' Cooley in his treatise on Torts (3 Ed.), p. 254, we stated the general *321rule to be, according to the maxim, that no man can make Ms own conduct the ground for an action against another in his own favor. If he suffers because of his own wrongdoing, the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one who was concerned in committing it. 155 N. C., 24. "Where two or more persons' have participated in the commission of a wrong, the general rule undoubtedly is that a right to contribution or indemnity will not arise in favor of the one held responsible by the injured party. 38 Cyc., 493. There are exceptions to the rule, but this case is not included in any of them.

The case of Churchill v. Holt, 131 Mass., 67 (41 Am. Rep., 191), seems to be a strong authority against the contention of the defendant. It appeared that Churchill left his hatchway in an unsafe condition. Defendant’s servant, in the performance of his master’s business, interfered with it, so that it became more dangerous, that is, the danger already existing by the fault of Churchill was increased, and Mrs. Meston fell into the hatchway and was thereby injured, and recovered damages of Churchill. It was held that Churchill was not entitled to indemnity or contribution from the defendant Holt, whose servant interfered with the hatchway. With respect to the right of indemnity, upon the facts presented, the Court said: “In such a case, both parties, whether they act with a common purpose or independently, aid in creating the danger or nuisance, and it is impossible to apportion the degree of their respective negligence, or to determine by whose individual negligence the injury was caused. They are both wrongdoers, whose unlawful acts contribute to produce the injury. They are in pari delicto, and therefore neither can recover indemnity or contribution of the other. The plaintiffs contend that they had the right to go to the jury upon the question whether the sole cause of the injury to Mrs. Meston were the negligent acts of the defendants’ servant. We must presume that proper instructions were given as to other aspects of the case; but in the aspect of the case supposed in the instruction "we are considering, that is, if the jury found that the plaintiffs negligently left the hatchway in a *322dangerous condition, and that tbe acts of tbe defendants’ servant merely made it more dangerous, it is impossible for tbe jury to find that tbe fault of tbe plaintiffs did not contribute to tbe injury. It is like tbe case of a man injured by falling into a bole dug partly by one person and partly by another. Tbe acts of botb aid in creating tbe danger wbicb causes tbe injury, and it cannot be ascertained wbetber tbe acts of one excluding tbe acts of tbe other would have caused tbe same injury. If the acts are unlawful, botb are wrongdoers, in pari delicto, and though each would be liable to tbe person injured, neither could recover indemnity or contribution of tbe other.” Churchill v. Holt, 131 Mass., 77 (41 Am. Rep., 193).

"When tbe same case was before tbe Court on a former appeal, it was said: “Tbe rule that one of two joint tort feasors cannot maintain an action against tbe other for indemnity or contribution does not apply to a case where one does tbe act or creates tbe nuisance, and tbe other does not join therein, but is thereby exposed to liability. In such case tbe parties are not in pa/ri delicto, as to each other, though as to third persons either may be held liable.” But that is not our ease. Here tbe express company left tbe truck near tbe track of tbe railroad company, and if this was a negligent act, it would not have harmed tbe intestate if tbe defendant bad not also been negligent. Tbe two acts concurred in producing tbe injury, and, upon tbe assumption that tbe express company was negligent, it and tbe railroad company were joint tort feasors, as to tbe plaintiff and as between themselves, and there is no right of indemnity or contribution. It may also be said that tbe defendant’s wrong was tbe active and dominant cause of tbe injury, without wbicb it would not have occurred, and it, therefore, has no ground whatever upon wbicb to base a claim for compensation against its codelinquent. Commissioners v. Indemnity Co., 155 N. C., 219.

We find no error in tbe record.

No error.