American Creosote Works of La. v. Harp

• Decision Date: 06 October 1952
• Docket Number: No. 38466,38466
• Citation: 215 Miss. 5,35 A.L.R.2d 603,60 So.2d 514
• Parties: , 35 A.L.R.2d 603 AMERICAN CREOSOTE WORKS OF LOUISIANA v. HARP.
• Court: Mississippi Supreme Court

Page 514

60 So.2d 514

215 Miss. 5, 35 A.L.R.2d 603

AMERICAN CREOSOTE WORKS OF LOUISIANA v. HARP.

No. 38466.

Supreme Court of Mississippi.

Oct. 6, 1952.

Snow & Covington, Meridian, for appellant.

Mitchell & McNutt, Tupelo, Brown & Elledge, Fulton, for appellee.

HALL, Justice.

The principal question for decision in this case is whether a shipper by rail, who, pursuant to contract, loads a car, is liable in damages to an employee of the consignee engaged in unloading the car at destination for personal injuries sustained by such employee because of the alleged improper manner of loading.

Appellant is the owner and operator of a plant at Louisville, Mississippi, and is engaged in treating poles and piling with creosote. It sold to Paul Anthony Construction Company a carload of piling f. o. b. cars at Louisville for use in highway bridge construction. Appellant loaded the car and delivered it to the railroad company for transportation to Fulton, Mississippi. When the car arrived at Fulton it was placed on a side track where it was taken in charge by the Paul Anthony Construction Company whose foreman directed appellee, its employee, to go on top of the load with an axe and cut the metal bands which were fastened to the standards on each side of the load and extended across the top of the load. The shipment was on an ordinary railroad flatcar. It contained fifty-six pieces of piling which ranged in length from twenty-two feet to twenty-seven feet. On each side of the car there were three standards which were fitted into the cuffs on the side of the car platform and extended vertically to the top of the load. One pair of standards was near each end of the car and one pair near the center. The tops of each pair were held together by a three-fourths inch high tension metal band extending across the car from one side to the other. It was necessary to remove these bands before the piling could be removed from the car. When appellee cut the third and last band all six of the standards broke off at the cuffs, the load of piling spread and fell from the car on both sides, and appellee was precipitated to the ground, sustaining a serious and permanent injury.

The case was submitted to the jury upon the issue whether the car was properly loaded and in a manner which was reasonably safe for unloading. The evidence as to the manner of loading was in sharp conflict and the jury could have resolved the issue in favor of either party. Appellant requested a directed verdict which was refused by the trial court, and it is argued here that appellant was entitled to a peremptory instruction for the reason that there was no privity of contract between appellant and appellee, that appellant knew nothing of appellee, had no contract with him, and consequently owed him no duty. We have carefully examined the several authorities cited by appellant and do not think that any of them are in point. They do not involve the question presented, are wholly different on the facts, and do not announce any principle of law which would relieve appellant of liability.

The English case of Elliott v. Hall, 1885, 15 Queen's Bench Division 315, is directly contrary to appellant's contention. There it was said:

'It was clearly part of the contract for the sale of the coal to plaintiff's employers that it should be conveyed in a truck to the buyers, and it must necessarily have been contemplated that, when it arrived at destination, the truck would be unloaded by buyer's servants. I think it plain that under these circumstances a duty arose on the part of the defendant towards the plaintiff. * * * It is contended that there is no duty because there was no contract with the plaintiff, but the plaintiff was acting as the servant of the company with whom the contract was made, and the defendant must have known that the buyers would not unload the coal themselves and that their servants would do so. Under these circumstances it seems clear to me that there was a duty not to be guilty of negligence with regard to the state and condition of the truck.'

The above case was cited with approval in Edwards v. Southern Railway Co., 233 Ala. 65, 169 So. 715, 716, 106 A.L.R. 1133, wherein the Supreme Court of Alabama said: 'The shipper was under duty to load the car in a safe condition for receipt by the consignee or its servants; and if such was not the fact or condition, it was the shipper's duty to notify the consignee or its servants of such danger.' In that case a recovery was denied to the plaintiff, but the denial was on the sole ground of plaintiff's contributory negligence which barred a recovery in Alabama but would not bar a recovery in Mississippi in view of our comparative negligence statute, Section 1454, Code of 1942.

In the case of Pitman v. Yazoo & M. V. R. Co., 171 Miss. 799, 158 So. 547, 550, our Court recognized the above stated principle when it said: 'Appellee (the railroad company) was under no duty to furnish standards, that was the duty of the shipper--the lumber company. The lumber company furnished and placed the standards, as it knew it must do. This was done by servants of the lumber company--appellant's fellow servants. One of the standards was faulty, resulting in appellant's injury. There can be no liability where there is no duty.' It was held that the railroad company was not liable for plaintiff's injury because the car was being loaded by the lumber company and the railroad had no control whatsoever over the manner of loading, and the lumber company was not liable because the negligence which caused the injury was that of the plaintiff's fellow servants, but the court did hold that it was the shipper's duty to furnish and place the standards used in the loading.

In 65 C.J.S., Negligence, § 65, p. 556, it is said: 'The duty to exercise care to avoid injury is not restricted to those in contractual relationship with the alleged wrongdoer, but extends to others lawfully present and employed, as for example, to the servant of another who is where he had a lawful right to be in the performance of his ordinary duties.'

In Hayes v. Philadelphia & R. Coal & Iron Co., 150 Mass. 457, 23 N.E. 225, it was held that a coal merchant, furnishing tackle for use by his customers in unloading coal from the barge in which it is delivered, is liable to a servant of the customer for personal injuries sustained by reason of a defect in such tackle. That case did not involve an unsafe method or manner of loading, but the unsafe condition of the equipment furnished for unloading, but it supports our view that the mere fact that there is no contractual relationship between plaintiff and defendant does not relieve defendant of its duty to an employee of the consignee to exercise reasonable care for the prevention of injury to him in connection with the unloading of a car which was loaded for shipment by the defendant.

In connection with its contention that it was entitled to a directed verdict, appellant further argues that, even though it may have been guilty of negligence in improperly loading the car, it was not reasonably foreseeable that an injury might result therefrom to an...