Atlantic Coast Line R. Co. v. Robertson

• Decision Date: 20 July 1954
• Docket Number: No. 6802.,6802.
• Citation: 214 F.2d 746
• Parties: ATLANTIC COAST LINE R. CO. et al. v. ROBERTSON.
• Court: U.S. Court of Appeals — Fourth Circuit

214 F.2d 746 (1954)

ATLANTIC COAST LINE R. CO. et al. v. ROBERTSON.

No. 6802.

United States Court of Appeals Fourth Circuit.

Argued June 10, 1954.

Decided July 20, 1954.

Douglas McKay, Columbia, S. C. (McKay & McKay, Columbia, S. C., on brief), for Atlantic Coast Line R. Co.

Joseph L. Neetles, Columbia, S. C. (Thomas, Cain & Neetles, Columbia, S. C., on brief), for Lock Joint Pipe Co. and American Pipe & Construction Co.

Henry Hammer and Henry H. Edens, Columbia, S. C. (Marshall Williams, Orangeburg, S. C., and John H. Dukes, Myrtle Beach, S. C., on brief), for H. L. Robertson.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

H. L. Robertson of Sumter, South Carolina, lost both legs below the knees when he was run over on the morning of June 9, 1952 by a dinkey engine on the premises of the Lock Joint Pipe Company and the American Pipe & Construction Company which they were operating as joint ventures in the manufacture of pipe near Orangeburg, South Carolina for use in the atomic bomb project of the United States. Robertson was an experienced railroad man and was stationed on the site as a car inspector of the Atlantic Coast Line Railroad Company. He brought suit against the Pipe Companies and the Railroad Company claiming that the Pipe Companies were negligent in the operation of the engine and that the Railroad Company was negligent in failing to furnish him a safe place to work. The Pipe Companies, which for the purposes of this case may be considered as one, and the Railroad Company denied liability. The Railroad Company also filed a cross complaint against the Pipe Company claiming that if it should be held liable for the accident, it was entitled to be reimbursed under the terms of an indemnity agreement between them.

The trial resulted in a verdict for the plaintiff for $50,000 against the Pipe Company, and $30,000 against the Railroad Company, and judgments for these amounts were entered,¹ and this appeal followed. The judge held that the Railroad Company was not entitled to indemnity from the Pipe Company; and from this judgment a cross appeal was taken.

The issues for determination are (1) whether there was substantial evidence to go to the jury as to the negligence of the Pipe Company; (2) whether there was substantial evidence to go to the jury as to the negligence of the Railroad Company; (3) whether the plaintiff was guilty of contributory negligence as a matter of law; and (4) whether the Railroad Company was entitled to be indemnified by the Pipe Company.

There is little or no dispute as to the facts. The defendants relied upon the cross examination of witnesses for the plaintiff and offered no independent testimony as to the circumstances of the accident. The manufacturing operations of the Pipe Company were located in a flat yard or area about one-half mile square located on the main line of the railroad near Lesesne Station, South Carolina. Under an agreement between the Railroad Company and the Pipe Company fifteen railroad tracks were constructed within the area, eight of which were used for the delivery of material to the Pipe Company within the area and for the transportation and delivery of completed pipe to the bomb plant of the United States at Dumbarton Station outside the area. These tracks ran east and west, five of them along the northern and three along the southern boundary of the area. The distance between the north and south boundaries of the area was about 775 feet. The plaintiff's duties were directed chiefly to these tracks and the cars placed thereon.

Midway between the north and south boundaries of the yard was another series of parallel tracks, seven in number, on which the Pipe Company operated a dinkey engine to haul flat cars carrying steel forms and other material along side the bays where the pipe was cast and between a steel yard to the west and an oil house to the east where the forms were oiled and cleaned before they were used. These operations involved the constant shifting and switching of the dinkey engine and cars back and forth on the series of middle tracks. Cranes were used to load the finished pipe on the cars on the outside tracks, and cranes were also located on the middle tracks to shift the materials from the cars to the bays for the casting of the pipe. The longest of the tracks in both series approximated one-half mile in length. Seventy-two cars with certain extras were furnished by the Railroad Company for the operations on both series of tracks. The dinkey engine, however, belonged to the Pipe Company.

The casting of the pipe was accompanied by the emission of quantities of steam from large kilns along side the tracks, as well as clouds of dust from the cement employed. The operation also involved the use of a number of vibrators and cement mixers as well as the cranes located on the tracks for the handling of the material, and the result was that the operations were accompanied by loud noises. Hence it was sometimes difficult either to see or to hear the dinkey engine as it moved on the center tracks.

Robertson was also occasionally called upon by the Pipe Company to inspect and repair the flat cars on the center tracks, incuding the track on which he was injured. He himself made minor repairs to these cars and to the cars on the outside tracks. It was also his duty to inspect and repair the cars on the main track between the yard of the Pipe Company and the railroad station where delivery was made to the bomb plant. In view of these circumstances the Railroad Company furnished Robertson with a pick-up truck and the Pipe Company gave him space for spare parts and tools in the plant warehouse in the northwestern corner of the yard. A road which gave access to the leading tracks crossed the yard on the south side but did not cross the manufacturing area; but it was possible for the truck to reach the tracks on both sides of the area.

The dinkey engine of the Pipe Company was operated by a driver who sat on the right hand side of the cab. He could see the tracks immediately in front of him but his view to the left was obstructed by the housing of the motor which was in the middle of the vehicle forward of the cab. Ordinarily another employee of the Pipe Company rode on the engine to operate the switches and uncouple the cars. Sometimes he rode in the front of the engine where he could see and give warning to persons crossing the track, but as often as not he rode on the rear of the engine in order to do his work the more quickly. He was in the latter position at the time of the accident.

No regular crossings of the center tracks were provided, but at or near the place where the accident happened a switch was located and the workmen in the plant were accustomed to cross the track at this point in going about their work in connection with the manufacture of the pipe and tying down sections of the pipe on the flat cars. Certain outdoor toilets for the workmen were located a short distance south of this switch. It was also the practice of the workmen in the yard and of Robertson to cross the central tracks at any other place they saw fit, and this practice was well known to the defendant Pipe Company.

On the day of the accident Robertson, while inspecting the cars on the southern loading tracks, noticed that a brake shoe was needed on one of the cars. He had one in his truck which was then parked on the north side of the yard, and in order to get it he endeavored to cross the central tracks from south to north when he was struck down by the dinkey engine coming from the east on his right side. He could have reached the truck without crossing the central tracks by walking a much longer distance around their ends, but he followed his usual practice of going directly to his objective. Crossing the tracks he looked to the right but did not see the approaching engine as it was obscured by the steam and dust, and he did not hear it because of the noise caused by the manufacturing operations. He also looked to his left and saw a large crane about 50 feet distant which was standing on the track he was about to cross, swinging its boom and picking up forms. He testified that under these conditions he had no idea that anything else would be approaching on the same track in the direction of the crane and hence he ventured to cross and was hit.

The Pipe Company contends that under these conditions it owed no duty to look out for Robertson crossing the middle tracks unless they called upon him to inspect or repair cars placed thereon. They argue that as he was not their employee and was not obliged to cross the central tracks in order to reach the loading cars north and south, it had no reason to anticipate his crossing at a place where no crossing was provided and no reason to keep a special lookout for him. They contend that at most he was a licensee to whom they owed no duty except to avoid injury when they had actual knowledge that he was in a position of danger. See Restatement of Torts, §§ 341, 342, 343.

This view, however, leaves out of account the circumstances which led to the employment and fixed the status of Robertson at the plant, and created the obligations which the defendant corporations owed him in the performance of his duties. On November 1, 1951 the Railroad Company and the Pipe Company entered into an agreement under which the track facilities, referred to therein as a "sidetrack" were constructed for "the economical and convenient conduct of the business of the Industry." The agreement provided for the construction and maintenance of the side track to the satisfaction of the Railroad Company, the operation thereof by the ...