Atlantic Coast Line Railroad Co. v. Shields, No. 15193

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON, , HOLMES, Circuit , and DAWKINS
Citation220 F.2d 242
Decision Date17 March 1955
Docket NumberNo. 15193,15072.
PartiesATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. W. A. SHIELDS and Southern Railway Company, Appellees. W. A. SHIELDS, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY and Southern Railway Company, Appellees.

220 F.2d 242 (1955)

ATLANTIC COAST LINE RAILROAD COMPANY, Appellant,
v.
W. A. SHIELDS and Southern Railway Company, Appellees.

W. A. SHIELDS, Appellant,
v.
ATLANTIC COAST LINE RAILROAD COMPANY and Southern Railway Company, Appellees.

Nos. 15193, 15072.

United States Court of Appeals, Fifth Circuit.

March 17, 1955.


220 F.2d 243

No. 15072:

Albert W. Copeland, John C. Godbold, Montgomery, Ala., for appellant.

Marion Rushton, Drayton Hamilton, Evans Hinson, Montgomery, Ala., Edgar A. Stewart, Selma, Ala., for appellees.

No. 15193:

Evans Hinson, John C. Godbold, Albert W. Copeland, Montgomery, Ala., for appellant.

Edgar A. Stewart, Selma, Ala., D. W. Hamilton, Marion Rushton, Montgomery, Ala., for appellees.

Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.

HUTCHESON, Chief Judge.

This is another case like O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187; Carter v. Atlanta & St. A. B. Ry. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236, and Affolder v. New York, Chicago & St. Louis R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683, in which a claimant, for injury resulting from defects in a railroad car, invokes both the absolute liability imposed by the Safety Appliance Acts, 45 U.S.C.A. §§ 1 to 46, and the qualified liability arising out of negligence. In those cases it was negligence under the Federal Employers Liability Act, 45 U.S.C.A. §§ 51 to 60. Here it is negligence at common law.

In those cases, particularly in the O'Donnell case, the Supreme Court points to the wide spread confusion attending the anomalous procedure employed in prosecuting such claims.1 The same difficulties have made themselves felt here with the result that on the appeal of the Atlantic Coast Line Railroad Company, the judgment must be reversed and the cause remanded.

The matter stands differently, however, on the appeal of plaintiff from the judgment upon a directed verdict as to the Southern Railway Company. For the reasons hereafter stated, as to it this judgment must be affirmed.

Brought against the Atlantic Coast Line Railroad Company, as the delivering, the Southern Railway Company, as the originating, carrier, the suit was for damages for personal injuries received by plaintiff, an independent contractor and invitee, as the result of the breaking when he stepped upon it of a dome step on a tank car which he had been engaged to unload.

Complying with the admonition of the court in the O'Donnell case, supra, the

220 F.2d 244
complaint was in two counts. Count One charged that the dome step was a safety appliance, and that its breaking was a violation of the Appliance Acts. Count Two charged that the defendants negligently furnished and tendered, for the unloading of the gasoline therein, a defective tank car

In addition to a general denial, the Atlantic Coast Line alleged as to the first count, (1) that the dome step was not a safety appliance within the meaning of the act, and (2) that if it was, plaintiff, not being a railroad employee, was not entitled to the benefits of the act.

As to the second count, the charge of common law negligence, it alleged: that the board which gave way had been newly painted; that the defect in it was not a patent but a hidden defect, which could not have been discovered by the use of ordinary care; and that the Atlantic Coast Line, as a delivering carrier, was not as matter of law, and could not be found, guilty of negligence in handling the car.

The Southern Railway alleged: that the Alabama Statute of Limitations of One Year had barred the cause of action as to it, and (2) that it was not the originating carrier, and that it had never had the car in its possession.

On the issues thus joined, the cause was tried to a jury on evidence which included uncontradicted evidence: that the New Orleans and Northeastern Railroad Company was the initial carrier of the car; that the Southern Railway Company had at no time had anything to do with its handling; and that, though the stock of the New Orleans and Northeastern Railroad Company was solely owned by it, Southern Railway Company was an absolutely separate corporation; that it did not operate its subsidiary; and that it had never handled the car.

The district judge, therefore, instructed a verdict for the Southern Railway and submitted the cause to the jury as to the Atlantic Coast Line on both counts and on a general charge.

There followed a general verdict and judgment for $7500.00 against Atlantic Coast Line from which that defendant has appealed, while plaintiff has appealed from the judgment in favor of the Southern Railway Company.

Here the Atlantic Coast Line insists that it should have had an instructed verdict on both counts, and that the judgment must be reversed and rendered for it. As to the first count, it claims: (1) that the dome step or platform was not a safety appliance; and (2) that if it was, plaintiff may not invoke the benefit of the act. As to the second count, its claim is that the evidence establishes as matter of law: that the defect in the board was not patent but latent; and that defendant had made the usual careful inspection of the car and the defect complained of was not discoverable upon such an inspection.

In the alternative, it urges upon us that if it was not entitled to an instructed verdict throughout, it was certainly entitled to an instruction as to Count One, and, finally, that if it was not entitled to an instructed verdict at all, there were errors in the charge and in the refusal of its requested instructions which require a reversal.2

220 F.2d 245

We find ourselves in complete agreement with the position taken and the reasons given for that position in the...

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12 practice notes
  • Barrera v. ROSCOE, SNYDER AND PACIFIC RAILWAY CO., No. CA 1-559.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • October 9, 1973
    ...of the railroad. The jurisprudence as we read it is to the contrary. Atlantic Coastline R. R. Co. v. Shields, 5th Cir., 1955, 220 F.2d 242; Garrett v. Southern R. R. Co., 6th Cir., 1960, 278 F.2d 424; Kentucky Electric Power Co. v. Norton Coal Mining Co., 6th Cir., 1938, 93 F.2d 923; Taylor......
  • Brown v. Margrande Compania Naviera, Civ. A. No. 6199.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 15, 1968
    ...not render the holding company responsible for the actions of its subsidiary. Atlantic Coast Line Railroad Co. v. Shields, 5 Cir., 1955, 220 F.2d 242. The circumstances here do not warrant a disregard of the separate entity of the two corporations. Plaintiff should have sued the New Orleans......
  • Hercules, Inc. v. Eilers, No. 7108
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • September 10, 1970
    ...sound law and particularly apropos to the contentions of the plaintiffs, Judge Hutcheson in Atlantic Coast Line Railroad Co. v. Shields, 220 F.2d 242, 245 (5th Cir., 1955), reversed on other grounds, 350 U.S. 318, 76 S.Ct. 386, 100 L.Ed. 364 (1955) 'He (the trial court) did correctly declar......
  • Atlantic Coast Line R. Co. v. Dunivant, 6 Div. 789
    • United States
    • Supreme Court of Alabama
    • November 29, 1956
    ...part of the carrier.' (Emphasis supplied.) the railroad could show that the knuckles 298; Atlantic Coast Line R. Co. v. Shields, 5 Cir., 220 F.2d 242. In some cases it has been said that a formal allegation of negligence should be disregarded as surplusage where the complaint charges a viol......
  • Request a trial to view additional results
12 cases
  • Barrera v. ROSCOE, SNYDER AND PACIFIC RAILWAY CO., No. CA 1-559.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • October 9, 1973
    ...of the railroad. The jurisprudence as we read it is to the contrary. Atlantic Coastline R. R. Co. v. Shields, 5th Cir., 1955, 220 F.2d 242; Garrett v. Southern R. R. Co., 6th Cir., 1960, 278 F.2d 424; Kentucky Electric Power Co. v. Norton Coal Mining Co., 6th Cir., 1938, 93 F.2d 923; Taylor......
  • Brown v. Margrande Compania Naviera, Civ. A. No. 6199.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 15, 1968
    ...not render the holding company responsible for the actions of its subsidiary. Atlantic Coast Line Railroad Co. v. Shields, 5 Cir., 1955, 220 F.2d 242. The circumstances here do not warrant a disregard of the separate entity of the two corporations. Plaintiff should have sued the New Orleans......
  • Hercules, Inc. v. Eilers, No. 7108
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • September 10, 1970
    ...sound law and particularly apropos to the contentions of the plaintiffs, Judge Hutcheson in Atlantic Coast Line Railroad Co. v. Shields, 220 F.2d 242, 245 (5th Cir., 1955), reversed on other grounds, 350 U.S. 318, 76 S.Ct. 386, 100 L.Ed. 364 (1955) 'He (the trial court) did correctly declar......
  • Atlantic Coast Line R. Co. v. Dunivant, 6 Div. 789
    • United States
    • Supreme Court of Alabama
    • November 29, 1956
    ...part of the carrier.' (Emphasis supplied.) the railroad could show that the knuckles 298; Atlantic Coast Line R. Co. v. Shields, 5 Cir., 220 F.2d 242. In some cases it has been said that a formal allegation of negligence should be disregarded as surplusage where the complaint charges a viol......
  • Request a trial to view additional results

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