Chicago, RI & PR Co. v. McClanahan

• Decision Date: 16 May 1949
• Docket Number: No. 12569.,12569.
• Parties: CHICAGO, R. I. & P. R. CO. v. McCLANAHAN.
• Court: U.S. Court of Appeals — Fifth Circuit

173 F.2d 833 (1949)

CHICAGO, R. I. & P. R. CO. v. McCLANAHAN.

No. 12569.

United States Court of Appeals Fifth Circuit.

April 15, 1949.

Rehearing Denied May 16, 1949.

Allen B. Guthrie, of Ruston, La., for appellant.

Ben C. Dawkins, Jr., and Jackson B. Davis, both of Shreveport, La., for appellee.

Before HUTCHESON, HOLMES, and LEE, Circuit Judges.

HOLMES, Circuit Judge.

This action was instituted by the appellee for personal injuries allegedly sustained by him on December 14, 1946, at Shreveport, La., when a heavy door of the freight car that he and other employees were getting ready to unload fell upon him. The Fidelity & Casualty Company of New York intervened on account of workmen's compensation payments made by it to the plaintiff. The defendants were the Illinois Central Railroad Co., Kansas City Southern Railroad Co., Guy A. Thompson, Trustee of Missouri Pacific Railroad Co., Joseph B. Fleming and Aaron Colnon, Trustees for the Chicago, Rock Island & Pacific Railroad Co. The doctrine of res ipsa loquitur was invoked by the plaintiff-appellee. The verdict and judgment were solely against the defendant-appellant, a part of which was awarded to the intervener.

These are the facts: On December 3rd, 4th, or 5th, 1946, the Peoria Terminal Company, a switching corporation, which was not made a party defendant, delivered to Corn Products Refining Company at Pekin, Illinois, an empty freight car to be loaded with sugar for shipment to Monroe, La., and Shreveport, La. The Peoria Terminal Company carefully inspected said car, and found it in good condition, prior to its delivery to said refinery. After such delivery and before being loaded, the car was again inspected by two experienced employees of the Corn Products Refining Co., who were particularly interested in the doors of the car, which, if defective, might be the cause of damage by weather to sugar, their destructible product.

The car in question belonged to the Pennsylvania Railroad Company, being initialled and numbered P. R. R. 32,916. It was loaded or placed for loading on or about Dec. 5, 1946. After it was loaded and the doors sealed, a through bill of lading for the same was executed by the Illinois Central Railroad Co., which also issued its waybill for partial unloading at Monroe. From December 6th to December 13th or 14th, 1946, the car was in the possession of said Illinois Central Railroad Company, except when it was switched to the warehouse of the Faulk-Collier Bonded Warehouse, Inc., in Monroe, La., for partial unloading, said switching being done by the trustee of the Missouri Pacific Railroad Co., as agent of the line-haul carrier. The car remained in the possession of said Warehouse, Inc., for a day or two, when the seals on both doors were broken, the doors opened, and the car partially unloaded, 400 sacks of corn sugar being removed therefrom. Thereafter, the doors of the car were closed and sealed; and the car was returned by the trustee of the Missouri Pacific to the Illinois Central Railroad Company. The breaking of said seals and partial unloading at Monroe were done without trouble or unusual incident; the doors were easily opened by hand; and no defect in the car of any kind interfered with the operation. Before undertaking said switching movement, the car was carefully inspected by said trustee, and no defect of any kind was found as to the doors or elsewhere.

After the car was returned to the Illinois Central, and by that road hauled to Shreveport, La., it was on the evening of December 13, 1946, turned over to the Kansas City Southern Railway Company for switching to the warehouse of the Terminal Warehouse & Transfer Co., the employer of the plaintiff-appellee. The next morning about 8 o'clock, December 14, 1946, the car having been spotted by the railroad company for unloading by said warehouse company, the seals of the car doors were broken and one of its doors opened without difficulty, presumably by employees of said warehouse. A little later that morning, while engaged in his customary duties, plaintiff and two other employees were ordered to begin unloading the car. When they undertook to open the other door of the car preparatory to carrying out their instructions, they found it difficult to open, and used a crowbar twice to move it. This bar was four or four and one-half feet long; the sharp end of it stuck into the edge of the floor, and its force was exerted with great pressure. After putting aside the crowbar, and while appellee and two fellow workmen were pulling and pushing the door with their hands, it suddenly became dislodged from its position, and fell upon the plaintiff, causing serious injury to him. The door weighed about 800 pounds. The question presented on this appeal is whether the evidence, aided by the doctrine of res ipsa loquitur, is sufficient to support the verdict.

The Peoria Terminal Company was the initial carrier in the chain of operations, with the other railroads serving as intermediate, or connecting, and delivering carriers. Pursuant to the verdict of the jury, a judgment was entered in favor of all of the defendants below except the Chicago, Rock Island & Pacific Railroad Company, which is the sole appellant here. The liability of appellant is sought to be predicated upon the negligence of the Terminal Company, which is alleged to be wholly owned and controlled by the appellant, and to be operated with the appellant as a single railway system, so as to bring the two companies within the doctrine announced in Davis v. Alexander, 269 U.S. 114, 46 S.Ct. 34, 70 L.Ed. 186; but we pass this issue, i. e., as to the domination of the Terminal Company by the appellant, because we are of the opinion that the evidence is not sufficient to warrant a finding of negligence against either the Terminal Company or the appellant. The evidence shows that the Peoria Terminal Company discharged its duty of inspection without finding any defect in the car; the same is true as to the appellant; and the remaining question is: whether the Terminal Company or the appellant, under the doctrine of res ipsa loquitur, was required to take up the burden of explaining the proximate cause of appellee's injury.

This doctrine, as first established in England and Scotland, was substantive law, the term having been borrowed from the Roman law, to which the doctrine itself may be traced. American state and federal courts at first accepted the British concept, and there is still strong authority for the contention that the doctrine, when applicable, compels the presumption of negligence on the part of the defendant, which makes out a prima facie case for the plaintiff; and, while the burden of proof strictly never shifts but remains with the plaintiff as to the facts alleged by him, yet he may stand upon his prima facie case, and the defendant must by evidence rebut it or suffer a verdict against him.¹ The Supreme Court has held the contrary in Sweeney v. Erving,² but that case has been severely criticized;³ and we are not bound by it here, because our decision is controlled by the law of the place where the injury was done.⁴

Under the law of Louisiana, which governs here, when a thing that causes injury, without fault of the injured person, is shown to have been under the exclusive control of the defendant, and the injury is such as ordinarily does not occur if the one having such control uses due care, then the presumption is that the injury was caused by the defendant's lack of proper care. Neither Professor Thayer nor Wigmore sought to destroy such presumptions. As pointed out by Professor Morgan: "Mr. Thayer was too wise to suppose he could destroy them. * * * He put them in another field, and that field he did not seek to simplify; he merely divided it into those separate subjects of the substantive law, with the facts of which the presumption was concerned." Morgan, Presumptions, 12 Wash.L.Rev. 255, 279 (1937). Wigmore treats the res-ipsa doctrine and its effect separately from presumptions in general. 9 Wigmore on Evidence (3rd Ed. 1940), 377, Sec. 2509. He says: "But whether the rule creates a full presumption, or merely satisfies the plaintiff's duty of producing evidence sufficient to go to the jury, is not always made clear in the rulings. What the final accepted shape of the rule will be can hardly be predicted." Ibid, pp. 377 et seq.⁵

Our function is to find the local law on the subject and apply it to the particular facts of this case. The basic statute is Article 2315 of the Louisiana Civil Code, which reads in part as follows: "Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it." In Urban Land Co. v. City of Shreveport, 182 La. 978, 162 So. 747, 748, the Supreme Court of Louisiana held that the charges of negligence were as specific as it was possible for the plaintiff to make them, and quoted with evident approval the following definition of the doctrine of res ipsa loquitur:

"`Where that which causes an injury is under the management and control of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management and control use proper care, it affords reasonable evidence in the absence of explanation, that the accident is the result of the want of care. See 9 R.C.L. 1259, 20 R. C.L. 185.' The doctrine is stated substantially the same in 45 C.J. p. 1193, § 768, and was applied in Lykiardopoulo v. New Orleans & Carrollton Railroad, Light & Power Co., 127 La. 309, 53 So. 575, Ann.Cas. 1912A, 976."⁶

Thus the rule in Louisiana as above stated is not appreciably different from the historic doctrine of res ipsa loquitur, as announced in certain English decisions, for instance, Scott v. The London, etc., Dock Company,⁷ where the injury complained of was caused by the fall of a barrel of flour from an upper window, and the defendant introduced no evidence but relied on the alleged...