Chicago, Rock Island & Pacific Railway Company v. Lewis

• Decision Date: 11 March 1912
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. LEWIS
• Court: Arkansas Supreme Court

145 S.W. 898

103 Ark. 99

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. LEWIS

Supreme Court of Arkansas

March 11, 1912

Appeal from Logan Circuit Court, Southern District; Jeptha H. Evans Judge; affirmed.

Judgment affirmed.

Thos S. Buzbee and Geo. B. Pugh, for appellant.

1. Appellant can not be held liable under the proof. Appellee's complaint that no notice that the car was in bad order was posted on the car or given to him or to the consignee is without merit, because he himself discovered the hole in the car and knew that it was such a hole as one might step into and get hurt. A railroad company is not an insurer of the safety of persons who come upon its premises on business with the company. If such a person discovers a defect and appreciates the danger therefrom, yet continues to use the premises and receives an injury by reason of such defect, the company is not liable. 63 Ark. 427; 98 Ark. 462; 23 N.E. 233; 30 N.E. 580; 19 A. 939; 49 F. 690; 25 N.E. 354; 45 P. 310; 49 N.Y.S. 341; 85 Ark. 460.

2. Under the facts in this case appellant was under no duty to inspect the floor of the car in order to ascertain whether or not it was in a safe condition for persons to go into and unload it. 60 Ill.App. 444.

Carmichael Brooks & Powers, for appellee.

1. As a matter of law, appellee was entitled to the same protection against defects as the owner of the contents of the car. As to the rights of persons having business on the premises of a railway company, see 117 S.W. 1066; 55 Ark. 432; 48 Ark. 491; 69 Ark. 489; 89 Ark. 122; 3 Elliott on Railroads, § 1265c, p. 461. And as applied to persons engaged in unloading cars see 77 S.W. 726, 727; 88 Mo.App. 193; 85 Ark. 463; 108 S.W. 841; 112 S.W. 1017; 132 Mo.App. 687; 100 S.W. 870; 30 Ry. L. Rep. 1193; 114 S.W. 425; 110 S.W. 135; 112 S.W. 177; 107 S.W. 868.

2. Appellant was under the duty to inspect the car and to exercise ordinary care to see that it was in safe condition for the use of employees or other persons having business with the company. 82 Ark. 378; 101 S.W. 738; 100 S.W. 958; 93 S.W. 684; 77 S.W. 728. And the fact that appellant handled the car in switching service only, if a fact, did not absolve it from this duty of inspection. Labatt on Master and Servant, 382, 383; 55 Kan. 525; 202 Mass. 491; 53 Ark. 347; 18 F. 304.

MCCULLOCH, C. J. KIRBY, J., dissents.

OPINION

MCCULLOCH, C. J.

The plaintiff, John S. Lewis, while unloading a car of tiling at Hartford, Arkansas, received personal injuries on account of an alleged defect in the car, and sues the defendant, the Chicago, Rock Island & Pacific Railway Company, which was the delivering carrier, to recover the damages.

The carload of tiling was shipped to Hartford, consigned to Baldwin & Smith, a firm of merchants at that place, and came over the Midland Valley Railroad. In order to make delivery to the consignee, the car was turned over to the defendant company, and by its servants transported over its main track and side track, a distance of about a mile, and placed on a side track to be unloaded. The defendant thus became the delivering carrier.

There was a hole in the bottom of the car, about eight inches wide and twenty or twenty-four inches long. The hole was covered by the heavy tiles, which were stacked in the car in tiers, and the defect could not be readily discovered except by examining the bottom of car from underneath or after moving the tiles. Plaintiff is a drayman, and was employed by the consignees, Baldwin & Smith, to unload the car and deliver its contents at their place of business in Hartford. It is shown to have been customary there to deliver freight in carload lots in this manner, that is to say, for the car to be conveniently placed on a side track and for the consignee to unload same. The plaintiff and his fellow workmen proceeded to unload the car, and, after having taken out several tiers of the tiling, discovered the hole in the bottom of the car, when it became thus exposed by the removal of the tiling which hid it from view. After they had unloaded all but the last tier of tiles, while plaintiff was rolling one of the heavy pieces toward the door, it jostled or "teetered," as expressed by the witnesses, and, on account of its heavy weight and movement, it caused plaintiff's foot to slip, and before he could recover his balance, he stepped in the hole, and the heavy piece of tiling rolled down across his leg and broke it.

The evidence shows that one of defendant's car inspectors, whose duty it was to inspect the outside and running gear of cars, but not the inside of cars, in inspecting the running gear of the car, discovered the hole, but did not report it, that not being within the line of his duty, and no notice thereof was given to the plaintiff or any of his associates, or to the consignees.

There is no conflict in the statements of any of the witnesses, though different inferences of fact may be drawn therefrom as to the questions of negligence and contributory negligence.

The jury returned a verdict in favor of plaintiff, assessing his damages in the sum of $ 500, and defendant appealed.

The defendant denied that it was guilty of negligence in any respect, and also pleaded contributory negligence and assumption of the risk on the part of the plaintiff.

The question of negligence in failing to give warning to the plaintiff concerning the hole in the car passed out of the case, for the reason that plaintiff actually discovered the hole before his injury occurred, and the failure to warn him could not have been the cause of the injury.

It was the duty of the defendant to make delivery of freight to the consignees, and where, in accordance with the custom or for the convenience of both parties, the delivery is made, as in this case, by placing the car on a side track, to be unloaded by the consignees, an obligation rested on the carrier to exercise ordinary care to furnish cars in such repair that they could be unloaded with reasonable safety to those engaged in that work. 3 Elliott on Railroads, § 1265c; Cincinnati, N. O. & T. P. R. Co. v. Vaught, 25 Ky. L. Rep. 1766, 78 S.W. 859; Sheltrawn v. Michigan Central R. Co., 128 Mich. 669, 87 N.W. 893; Sykes v. St. Louis & S. F. Rd. Co., 88 Mo.App. 193; Roddy v. Missouri Pacific Ry. Co., 104 Mo. 234, 12 L. R. A. 746, 15 S.W. 1112.

This duty rested upon defendant as the delivering carrier, even though it received the car in this condition from another carrier, and had nothing to do with it except to switch it a short distance over its tracks and deliver it to the consignee. It was bound to...