Carolan v. Southern Pac. Co.
| Decision Date | 20 December 1897 |
| Docket Number | 12,511. |
| Citation | 84 F. 84 |
| Court | U.S. District Court — Northern District of California |
| Parties | CAROLAN v. SOUTHERN PAC. CO. et al. |
Reddy Campbell & Metson and Ira D. Orton, for plaintiff.
McGowan & Squires, for defendant Southern Pac. Co.
Ward McAllister, for defendant Pacific Mail S.S. Co.
This action is brought by the plaintiff to recover damages for injuries alleged to have been received by him, by reason of the negligence of the defendants. The facts set out in the complaint are as follows: That on or about the 30th day of June, 1897, the Pacific Mail Steamship Company unloaded a large quantity of tea in boxes, and piled the same on its wharf in the Bay of San Francisco, in the city and county of San Francisco, near a track where the defendant Southern Pacific Company operated trains; that said tea was so piled in order that the same might be conveniently loaded by the said defendant Southern Pacific Company in its said cars that said boxes of tea were piled by said defendant Pacific Mill Steamship Company from 14 to 16 feet high on said wharf and were carelessly and negligently piled so as to easily fall and collapse when subjected to any weight or strain that on and prior to said 30th day of June, 1897, the said plaintiff was employed by defendant Southern Pacific Company as a laborer to assist in loading merchandise into the cars of defendant from the wharf of said Pacific Mail Steamship Company, in said city and county of San Francisco; that on said 30th of June, 1897, by direction of said defendant Southern Pacific Company, plaintiff was engaged in assisting to load a car of defendant with said tea contained in said boxes, piled as aforesaid upon said wharf; that, in the course of performing his duty of assisting to load said tea into said box cars, the plaintiff, by direction of defendant Southern Pacific Company, climbed on top of said boxes of tea, and was engaged in handing said boxes therefrom to other employees of the defendant; that, while he was so engaged, said pile of tea boxes collapsed, and precipitated the plaintiff about 12 or 14 feet to the floor of the wharf, causing him to be severely injured and bruised; that, by reason of being so precipitated, a bone of plaintiff's leg was fractured, and the skin and flesh thereof torn and lacerated, and he was hurt and bruised in other portions of his body, both internally and externally.
A party charging negligence as a ground of action must plead it. The complaint must show that the master, by his acts or by his omissions, has violated some duty incumbent upon him, which caused the injury complained of. The allegation of the complaint in this respect is:
'That said accident was caused solely by reason of the plaintiff being put to work on top of said tea boxes, which were carelessly and negligently piled in such a manner as to easily fall and collapse; that, by reason of said boxes of tea being so carelessly and negligently piled, the place where plaintiff was directed to work, and where he was working at the time of receiving the injuries aforesaid, was unsafe; that the unsafe condition thereof was unknown to plaintiff, but was known to defendants, or might have been known to them, and each of them, by the exercise of ordinary care.'
There is no allegation that the plaintiff did not know, or he could have known by the exercise of ordinary care, the unsafe condition of the boxes of tea. It does appear from the allegations in the complaint that the injuries which the plaintiff received were caused by any defective or unsafe appliances furnished by the master. The Southern Pacific Company had nothing to do with the piling of the boxes of tea on the wharf, which, according to the theory of plaintiff, was the only thing which made the place unsafe.
It is manifest, upon these facts, that the plaintiff is not entitled to recover, unless from other allegations of the complaint it clearly appears that the defendant failed in its duty to provide the plaintiff with a safe place in which to work, or failed to furnish him with safe appliances with which to perform his work. The Southern Pacific Company is not shown to have had any authority or duty to perform in piling the boxes. On the other hand, it is affirmatively shown that the injury which plaintiff received was not caused by any fault or negligence of the railroad company, but was occasioned by the handling and transportation of the boxes of tea in the performance of the work-- usual and ordinary in its character-- which the plaintiff was employed to do, and came within the risks of his employment, assumed by him at the time.
In Kohn v. McNulta, 147 U.S. 238, 13 Sup.Ct. 298, where an employee of a railroad company was injured by having his arm crushed between the deadwoods while he was attempting to couple two freight cars, differing with his employer's cars in structure, the court said:
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