Anderson v. Southern Ry. Co.

• Decision Date: 03 June 1927
• Docket Number: No. 2609.,2609.
• Parties: ANDERSON et al. v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

20 F.2d 71 (1927)

ANDERSON et al. v. SOUTHERN RY. CO.

No. 2609.

Circuit Court of Appeals, Fourth Circuit.

June 3, 1927.

L. E. Croft, of Aiken, S. C. (Williams, Croft & Busbee and John F. Williams, all of Aiken, S. C., on the brief), for plaintiffs in error.

P. F. Henderson, of Aiken, S. C. (Frank G. Tompkins, of Columbia, S. C., and Hendersons & Salley, of Aiken, S. C., on the brief), for defendant in error.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an action of law by the administrators of Thomas McKie Anderson, deceased, against the Southern Railway Company, a Virginia corporation, to recover damages for the death of Anderson. On the trial of the case, a motion for a directed verdict in favor of the defendant was granted by the judge below, and judgment rendered for the defendant for the costs, to which judgment of the court this writ of error was sued out.

The defendant received, in the course of its business as a carrier, a flat car consigned and shipped by Georgia Creosoting Company, from Brunswick, in the state of Georgia, to Carolina Light & Power Company, at Aiken, S. C., loaded with 70 telegraph poles, about 30 feet in length, each weighing in the neighborhood of 800 pounds; total weight of the load on the car being approximately 57,000 pounds. The car was 40 feet long, and there was approximately 5 feet space between the poles and the end of the car at each end.

The poles were held in place on the car by eight upright standards or stakes, the butts of which were fastened in sockets attached to the car for that purpose. These standards or stakes were braced by twisted wire lines, running from one side of the car to the other, tying the stakes together. Each stake had two of these fastenings or braces, one about the middle of the load of poles, and another near the top of the stakes across the top of the load. These stakes were green pine saplings about 5 inches in diameter in the center, and cut at the butts so as to go into the sockets.

The car in question was shipped from Brunswick, Ga., over another line of railroad, and was owned by the Atlantic, Birmingham & Atlanta Railroad Company, but was accepted by the defendant company, transported over the defendant's line of road to Aiken, S. C., and there placed on a side track for the purpose of being unloaded by the consignee, the Carolina Light & Power Company.

The car was placed for unloading on the 6th day of July, 1925, and two days later, on the 8th, a gang of men in the employ of the Carolina Light & Power Company started to unload the car. The deceased was foreman of the unloading crew. Preparatory to the unloading, deceased and one of the men under his direction went on top of the load and proceeded to cut the wires running between the stakes across the car. As the wires were cut, the load began to settle, and when the last wire was cut the standards broke on both sides of the car, and Thomas Anderson was thrown under some of the poles and so injured that he died.

The claim of the plaintiffs is that the four stakes used for holding the load in place were neither sufficient in number nor sufficiently strong, and that they should have been of hardwood or steel; that the use of an insufficient number of stakes of an inferior quality constituted a defect, amounting to a defect in the car itself; that the car was improperly loaded, and that one of the stakes was mildewed and thereby weakened.

It is undisputed that, in the loading of poles of the character of those in this instance, new and different stakes have to be used with each load; the stakes being destroyed with the unloading. Under these circumstances it could hardly be...