Copeland v. Chicago, B. & Q.R. Co.

• Decision Date: 04 September 1923
• Docket Number: 6161.
• Citation: 293 F. 12
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: COPELAND et al. v. CHICAGO, B. & Q.R. CO. et al.

293 F. 12

COPELAND et al. v. CHICAGO, B. & Q.R. CO. et al.

No. 6161.

United States Court of Appeals, Eighth Circuit.

September 4, 1923

Anan Raymond, of Omaha, Neb. (Francis A. Brogan, A. G. Ellick, F H. Gaines, R. A. Van Orsdel, and F. S. Gaines, all of Omaha Neb., on the brief), for plaintiffs in error.

Wymer Dressler, of Omaha, Neb. (Robert D. Neely and Paul S Topping, both of Omaha, Neb., were with him on the brief) for defendant in error Chicago & N.W. Ry. Co.

J. W. Weingarten, of Omaha, Neb. (Byron Clark and Jesse L. Root, both of Omaha, Neb., on the brief), for defendant in error Chicago, B. & Q.R. Co.

Before LEWIS, Circuit Judge, and BOOTH and JOHNSON, District Judges.

LEWIS Circuit Judge.

This action was brought against Chicago, Burlington & Quincy Railroad Company and Chicago & Northwestern Railway Company to recover damages on account of injuries received by John Copeland at Omaha on October 4, 1917, while he and Charles Smith were attempting to open a sliding door on the side of a box car for the purpose of unloading a shipment of automobiles contained in it. While Copeland and Smith were pushing back one of the doors an iron plate in the frame above fell and struck Copeland on the head, and the negligence alleged was the failure of defendants to discover that the nuts on the downward ends of four bolts that passed through the frame and plate to hold the plate in place were off, and in not replacing the nuts on the bolts. It was charged in the complaint that the absence of the nuts was open and apparent to defendants. The car belonged to Chicago & Northwestern. It was stipulated that it was in the possession of the Erie Railroad prior to September 20, 1917, but for how long before that it was not stated; that on September 20th it was in the possession of the Pennsylvania Railroad at Indianapolis, and that road furnished it to the Cole Motor Company for loading with automobiles to be shipped to Omaha. When the car was loaded the Pennsylvania transported it to Chicago, and there delivered it to Chicago & Northwestern, which transported it to Omaha, where it arrived on October 2d and was turned over to the Chicago, St. Paul, Minneapolis & Omaha Railway Company, and that company placed it on the transfer track in the north yards at Omaha, from which it was taken by the Burlington on October 3d and set at a warehouse at 5:30 P.M. of that day for unloading. The car as set stood east and west, and the platform on which the automobiles were to be unloaded was on its south side. Smith testified that when he got to the warehouse about 7 o'clock on the morning of October 4th the doors of the car were closed. He made no statement as to whether there were then seals on the doors, nor whether he made any observations in that respect. The warehouse foreman testified that the warehouse record had this notation:

'10-- 3-- 5:30 119458 C&NW. 10-- 4-- 12 seal south door open. 2575535 NW.'

In answer to a question as to what sort of a record he kept of incoming cars at the warehouse, he answered, 'A car number, initials and the seals. ' He further said the notation in the record was in his handwriting, and that it meant there were no seals on the south side of the car, but he did not state the day or hour at which the information as to the seals disclosed by the notation was obtained. It would seem from the notation that this information was gained on October 4th and not on the 3d. He further said that he made the record when cars are set at the warehouse platform, and that this car was set at the platform at 5:30 P.M. on October 3d. Inasmuch as it was his duty, according to his testimony to put in his record the car number, initials and seals, and to do so at the time the car was set, it would appear from the record he made of date October 3d that there was nothing to be noted as to the seals, that they were then in place, and that the seal on the south door was removed after the car was set and prior to the time at which his notation was made on the next day. He explained the meaning of the phrase, 'seal south door open' as signifying that there were no seals on that side, the south side. He further testified that the north doors were 'apparently' sealed. There is no testimony as to when the seals on the south doors were removed nor by whom. After Smith saw the car at the platform about 7 o'clock in the morning he went to assist in unloading another car of automobiles, and came back to unload this car some time in the forenoon. He testified that he opened one of the doors and placed a gang-plank. He described how the doors could be opened and closed and made fast when they were closed. No other witness testified about the doors, their mechanism and the iron plate in the door frame overhead. They were made to slide back and forth on the outside of the car, running on a track at the top and bottom. When they were closed they came together, and each partly overlapped a post about 4x6 inches which stood on the inside of the closed doors and reached from the bottom to the top of the door frame, standing immediately under and in contact with the iron plate which was mortised into the frame above. His testimony indicates that the door which he first opened was held fast when closed by lugs in the floor and on the post; but there is confusion in his testimony as to how the other door was held to the post. He speaks of two latches, one at the top and one at the bottom of the post, by which that door could be hooked to and unhooked from it, and said that when he undertook to open the second door he unfastened the upper latch. But he also said that the second door was made fast to the post by bolts, and that it moved back and forth with the door. Again, when asked if the post was fastened to the door so that it is part of the door, he answered, 'Only to lock the door.' Again, he said, 'There is a latch at the bottom of this post and a latch at the top. You unloosen those latches and open the second door;' then he added, 'They don't exactly work like some of them work-- they work a little different. ' Nor is it clear what purpose the iron plate was intended to serve. Smith said there was a kind of a knob on it right in the center of its flat side, not on its edge, but that the doors when closed did not touch the iron plate, it was inside of the closed doors and was...