Chicago, Rock Island & Pacific Railroad Co. v. Williams

• Decision Date: 05 July 1957
• Docket Number: No. 15662.,15662.
• Citation: 245 F.2d 397
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, Appellant, v. W. E. WILLIAMS, Chicago and Northwestern Railway Company, a Corporation, and Union Pacific Railroad Company, a Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

245 F.2d 397 (1957)

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, Appellant, v. W. E. WILLIAMS, Chicago and Northwestern Railway Company, a Corporation, and Union Pacific Railroad Company, a Corporation, Appellees.

No. 15662.

United States Court of Appeals Eighth Circuit.

June 6, 1957.

Rehearing Denied July 5, 1957.

A. B. Howland, Des Moines, Iowa (Oscar E. Johnson, Robert M. Stuart, Council Bluffs, Iowa, and B. A. Webster, Jr., Des Moines, Iowa, on the brief), for appellant.

Harold T. Beckman, Council Bluffs, Iowa (John LeRoy Peterson, Council Bluffs, Iowa, on the brief), for appellee, W. E. Williams.

J. H. Anderson, Omaha, Neb. (F. J. Melia, G. C. Holdrege, F. J. Given, Omaha, Neb., and Addison C. Kistle, Council Bluffs, Iowa, on the brief), for appellee, Union Pac. R. Co.

Ray H. Johnson, Jr., Des Moines, Iowa (Frank W. Davis and Davis, Huebner & Johnson, Des Moines, Iowa, on the brief), for appellee, Chicago & N. W. R. Co.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Chief Judge.

This was an action sounding in tort brought by appellee William E. Williams against the Chicago, Rock Island and Pacific Railroad Company, the Chicago and Northwestern Railway Company and the Union Pacific Railroad Company to recover damages on account of personal injuries suffered by plaintiff while he was attempting to close a door on a box-car owned by the Chicago, Rock Island and Pacific Railroad Company. He charged the three named railroad companies jointly and severally with negligently furnishing plaintiff's employer, the Kansas Grain Company, with a box-car whose door and track mechanisms were in a broken, dangerous, defective, unsuitable and unsafe condition. The defendants answered separately each admitting the occurrence of the accident resulting in plaintiff's injuries but denying they were guilty of negligence, and the Rock Island also pleaded contributory negligence and it filed cross-claims against the Northwestern and Union Pacific. As against the Northwestern it prayed that "* * * in the event that any liability be established against either this defendant or Chicago & Northwestern Railway Company, the court adjudicate, declare and determine the rights of the respective defendants as between themselves and thereupon determine that any liability established by or against either this defendant or Chicago & Northwestern Railway Company constitutes a part of the cost of the switching operation on or over the River Track and is to be borne and shared equally by the three parties to the contract of November 21, 1910, or in the alternative that the court find, declare and determine that the primary liability, therefore, is upon Union Pacific Railroad Company, and that upon payment of any judgment or any part thereof which may be rendered against this defendant or defendant Chicago & Northwestern Railway Company, either or both of said defendants shall be entitled to judgment over against Union Pacific Railroad Company." In its cross-claim against the Union Pacific it prayed "1. That this court find, determine and adjudicate that as between defendant Chicago, Rock Island & Pacific Railroad Company and defendant Union Pacific Railroad Company, Union Pacific Railroad Company is primarily liable to plaintiff and that this defendant is in no manner liable for plaintiff's injuries; in the event that any liability is imposed on this defendant that the court find, determine and adjudicate that the primary liability therefor rests upon defendant Union Pacific Railroad Company and not upon this defendant. 2. That if any judgment be rendered against this defendant in favor of the plaintiff in this action that the court find, determine and adjudicate that on payment thereof that this defendant is entitled to judgment over against defendant Union Pacific Railroad Company * * *." In due course these cross-claims were answered separately by the Northwestern and the Union Pacific. The issues joined by the plaintiff and the defendants were separately tried before the court and a jury and the jury found the issues in favor of the plaintiff and against the Rock Island alone. The issues joined between the railroad defendants were thereafter tried by the court and were determined in favor of the Northwestern and the Union Pacific.

The defendants are referred to in the record and briefs as the Rock Island, the Northwestern and the Union Pacific and they will be so designated in the course of this opinion.

At all times pertinent to the issues here involved William E. Williams, plaintiff, was in the employ of the Flour Mills of America, Inc., operating a one and one-half million bushel capacity grain elevator in Council Bluffs, Iowa under the trade name of Kansas Grain Company. This grain elevator was served by lead tracks or spurs owned by the Northwestern.

On January 28 and 29, 1953, Kansas Grain Company placed orders with the Rock Island for thirty-five empty cars for grain loading. Thereafter, on February 7, 1953, one Bert Neumann, a Rock Island employee at Council Bluffs, inspected car RI 145287 and placed thereon a placard reading "OK — Grain". On the morning of February 9, 1953, this car was taken to the so-called River Track by the Rock Island and later that day was switched to Kansas Grain elevator by the Northwestern. When plaintiff Williams came to work on the morning of February 10 this car was one of several on the elevator loading track and during the afternoon of that date, he loaded the car with 112,000 pounds of shelled corn and it was then moved to the east on the loading track eighty to one hundred feet where Sigler, another employee of the elevator, took samples of the grain and closed and sealed the door on the southerly side of the car. Williams, observing that some difficulty was encountered in attempting to close the door on the northerly side of the car, suggested that he would take over closing that car door while Sigler secured samples from another car which Williams had just finished loading. Williams and Rounds, another elevator employee, attempted to close the door. Williams first pried at the westerly end of the door with an iron bar some three feet in length and was able to move the door only a short distance to the east in this manner. A chain with a ring on one end was then secured, passed around the handle of the door, the bar was passed through the ring and placed against the easterly side of the door-stop at the east door opening and the door was moved some two or three feet in this manner to within eighteen inches of being closed. Williams then laid the bar down and engaged in some further conversation with his co-employee when a popping or cracking noise was heard. Rounds shouted, "Look out", and Williams looked up and saw that the car door was out of the door track at the top some two feet and was falling outward. The door fell on Williams. It weighed some eight hundred to one thousand pounds. Williams sustained injuries consisting of three fractured vertebrae, a fracture of the tibia and fibula of his right leg, the loss of teeth and multiple contusions, abrasions and lacerations about his head, legs and body.

In this type of box-car normally the top of the door is held next to the car by a door-cap which extends down over the edge of the door and is equipped with a guide going outside the cap in order to keep the door in a rigid position. The door-cap serves as a guide or track to the upper part of the door. The door is opened and closed by moving it along a rail known as the lower door-track. The movement of the door is facilitated by the lowering of a roller located near the lower edge of the door onto the door-track. In the absence of defects, the top of the door extends into the door-cap about one inch.

Evidence introduced by the plaintiff warranted the jury in finding that the lower door-track and side-sill of this car at the time of the occurrence, was sagged about three-fourths of an inch. The weld was broken between the lower door-track and the left-hand door-stop. The siding of the car at the lower right-hand corner of the door-opening was pulled away from the floor. The right-hand door-post was broken beneath the lower door-rail and the width of the break was approximately three-quarters of an inch. These were old breaks. The function of the door-post is to connect the lower underframe with the upper roof section and the purpose is to bind the top to the bottom underframe of the car in a rigid position. The breakage of the post would have a tendency to allow the side sill to sag or create an excessive amount of distance between the lower door-track or door-rail and the upper door-cap.

There was testimony produced on behalf of the Rock Island conflicting with that offered on behalf of plaintiff as to the condition of the car door when it was delivered to plaintiff's employer but we assume the conflict was resolved by the jury in favor of plaintiff. There was also testimony offered by defendant Rock Island going to the extent of plaintiff's injuries.

On the day following the accident a bill of lading for shipment of said car from Council Bluffs, Iowa to Denver, Colorado was prepared by employees of Kansas Grain Company at Omaha, Nebraska and received by the Union Pacific on such date. The car was then removed by an engine crew of the Northwestern, taken by the Rock Island to its Council Bluffs repair track where the door was replaced and held by the Rock Island until it was switched to the tracks of the Union Pacific on February 23, 1953, at which time the Union Pacific for the first time took physical possession of the car. The car was inspected by the Union Pacific on February 24, 1953, and "bad ordered" at that time for worn brake heads and because one of its doors was out of the top door track. Repairs were completed on February 24, 1953, and the Union Pacific thereupon transported the car to Denver, Colorado...