The opinion of the court was delivered by: WOODS
1. The plaintiff is a Delaware corporation with its principal place of business in the State of Missouri and is duly authorized to conduct business in the State of Arkansas.
2. The defendant, Champlin & Wells, Inc., is an Arkansas Corporation with its principal place of business in Lonoke County, Arkansas.
3. The amount in controversy exceeds the sum of $10,000.00, exclusive of interest and costs.
4. The third-party defendant, Northeastern Fire Insurance Company of Pennsylvania (herein "Northeastern"), is an insurance corporation organized and existing under the laws of Pennsylvania.
5. On or about August 20, 1975, the plaintiff and Champlin & Wells entered into an agreement entitled "Miscellaneous Work Contract," pursuant to which Champlin & Wells undertook to furnish equipment and labor for the purpose of unloading and handling the plaintiff's track material and for the further purpose of loading and securing the plaintiff's track panels on its cars at the plaintiff's track panel facility in North Little Rock, Arkansas.
6. On February 3, 1978, Clifford W. Clarke, a trackman employed by the plaintiff, while acting in the scope of his employment, was removing certain items of equipment from one of the plaintiff's rail cars, when he was injured after having been struck in the back of the neck by a piece of heavy metal known as a "rail dog."
7. On February 3, 1978, the "rail dog" which injured Clifford W. Clarke was attached to a tow motor machine which, at the time of the injury, was owned by Champlin & Wells and operated by its employee, Steve Conder.
8. On February 3, 1978, Steve Conder was an employee of Champlin & Wells, and was acting within the course and scope of his employment.
9. Clifford W. Clarke made a claim against the plaintiff for the injury sustained by him on February 3, 1978, under the provisions of the Federal Employer's Liability Act, alleging that the plaintiff failed to discharge its non-delegable duty to provide him with a safe place in which to work.
11. Champlin & Wells and Northeastern declined to accept responsibility for the handling and the payment of the claim of Clifford W. Clarke, and the plaintiff thereafter entered into negotiations with Clifford W. Clarke for the purpose of settling his claim.
12. On or about August 27, 1979, the plaintiff consummated a settlement agreement with Clifford W. Clarke in the amount of $150,000.00 plus doctor, medical and hospital expenses in the amount of $5,514.34. A release consummating the settlement was executed by Mr. Clarke, pursuant to which the plaintiff was released and pursuant to which Clarke released all ...