Fisher v. Minneapolis & St. L. Ry. Co.

• Decision Date: 21 October 1952
• Docket Number: No. 14500.,14500.
• Citation: 199 F.2d 308
• Parties: FISHER v. MINNEAPOLIS & ST. L. RY. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

199 F.2d 308 (1952)

FISHER v. MINNEAPOLIS & ST. L. RY. CO. et al.

No. 14500.

United States Court of Appeals Eighth Circuit.

October 21, 1952.

John H. Mitchell, Ft. Dodge, Iowa (Edward D. Kelly, Harold F. Fristedt, Algona, Iowa, and Philip C. Lovrien, Humboldt, Iowa, were with him on the brief), for appellant.

Maxwell A. O'Brien, Des Moines, Iowa (Parrish, Guthrie, Colflesh & O'Brien, Des Moines, Iowa, were with him on the brief), for appellee Graybar Electric Co., Inc., of New York.

William J. Powell, Minneapolis, Minn. (C. W. Wright, Richard Musenbrock, and George M. Stephenson, Minneapolis, Minn., were with him on the brief), for appellee Minneapolis & St. L. Ry. Co.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

This action was brought by the qualified administratrix to recover damages for the death of Raymon Edward Fries, alleged to have been caused by negligence of the only defendants in the action at the time of trial, namely, the Graybar Electric Company, Inc., and the Minneapolis and St. Louis Railway Company. There was federal jurisdiction by reason of diversity of citizenship and amount involved and at the conclusion of all of the evidence on the jury trial of the case each of the defendants moved the court for directed verdict. The court granted the motions and entered judgment of dismissal on the verdict in favor of defendants. The plaintiff has appealed from the judgment.

It appears without dispute that the death of plaintiff's decedent occurred while he was working as one of a crew of five men engaged in unloading a shipment of large transmission line poles from railroad flat cars at Gilmore City, Iowa. There were 38 poles in the shipment, 55 feet in length and weighing 101,300 pounds, about 3,000 pounds apiece. They formed an installment of a large quantity of light and power poles and other materials which the Graybar company had contracted to sell to an Iowa co-operative association called Cornbelt Power Co-Operative. The Graybar company in turn had bought the poles from American Creosote Works, Inc., to be delivered on board the cars at the point to which shipment was to be made, and that company had loaded them on two flat cars at Louisville, Mississippi, and there delivered them to the Gulf, Mobile & Ohio railroad for transportation to the Cornbelt Power Co-Operative at Gilmore City, notifying the co-operative of the shipment. The initial carrier transferred the cars of poles to defendant M. & St. L. railroad which transported them to Gilmore City and notified the Cornbelt when the cars were spotted for unloading. The Cornbelt accepted the shipment and arranged with another co-operative, the Humboldt County Rural Electric Co-Operative as an independent contractor to unload the poles. That co-operative then took exclusive charge of the unloading. It sent a crew of five of its employees, including plaintiff's decedent and Heike Tjaden, its gang foreman, to Gilmore City to do the job with a boom truck carrying a winch and cable on the back of it and their "ordinary tools".

Arriving at Gilmore City all the men studied the load and observed the means by which the poles were, and throughout the transportation had been, held together in a safe and ordered pile on the two flat cars. Such means were all in plain sight, open and apparent. A timber of about ten by ten inches was attached across the width of the floor of each flat car for a bolster on which the ends of the bottom poles were rested to avoid friction of the load against the car floors on uneven or curving road beds. The poles were piled to a height of a little more than six feet alternating the butts and upper ends to keep the load even, and the pile was fastened together by three strong metal bands 2 inches wide and 1/8 inch thick which went around all the poles and were drawn taut and sealed with a machine. A bundle of some five, six or seven poles on the top of the load was also separately bound with two metal bands of the same sort, one at either end. The flat cars had metal sleeves or holders on both sides at floor level and four stakes of hard wood about ten feet long were stood up in holders on each side of the load. Two of the stakes were close to each end of the poles on each side of the cars. The bolsters across the car floors were set between the stakes. Most of the stakes were of untrimmed branches, larger than the holders, and were whittled down at one end to fit taut and stand upright in the holders. Other stakes appear to have been sawed four by fours. A nail was also driven in the lower end of each stake to hold it down in the sleeve. Heavy wires were strung from near the top of each of the four stakes on one side of the cars across the top of the load to each of the four stakes directly opposite on the other side of the cars.

Experienced inspectors for the creosote company and for the railroads inspected the cars and the load many times before and at the time of arrival at Gilmore City, and there is no question but that the shipment was at all times in good order.

Beginning the operation of unloading the poles, one member of the crew cut the wires leading from each of the four stakes on one side across the load to the opposite four stakes on the other side, so that the stakes were left standing with no support except as their lower whittled ends remained in the sleeves. Then another crew member, working from underneath the cars with an axe out each of the three 2 by 1/8 inch metal bands that went around all the poles. He worked from underneath the cars while engaging in the band cutting and the rest of the crew stood off at a distance because it was understood that when the poles were released from the supporting bands it was reasonably to be expected that the poles would spread and roll down from the pile. It turned out they did not do so. The crew waited all of ten minutes expecting a spreading and rolling of the poles but none was observed.

After the ten minutes of waiting had elapsed the decedent Fries climbed up on top of the poles (apparently without any direction to do so) and using a bolt cutter which he carried in his hand, he cut the metal band which was around one end of the top bundle of poles. There was still no movement or spreading of the poles and he walked along the top of the pile to where the other metal band was bound around the other end of the bundle and he cut that last remaining band. When all the wires holding the stakes and all of the five metal bands holding the poles had thus been cut, spreading and rolling of the poles occurred immediately. The stakes at the sides of the cars then had nothing to support them but the ends that were within the sleeves and the heavy poles broke them off on one side of the cars. Part of the poles fell to the ground on that side of the cars. Fries struggled to ride the rolling poles but was unable to...