Emerson Elec. Mfg. Co. v. Terminal R. Ass'n of St. Louis

• Decision Date: 17 November 1953
• Docket Number: No. 28647,28647
• Citation: 262 S.W.2d 323
• Parties: EMERSON ELECTRIC MFG. CO. v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

Page 323

262 S.W.2d 323

EMERSON ELECTRIC MFG. CO. v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 28647.

St. Louis Court of Appeals, Missouri.

Nov. 17, 1953.

Ely & Ely, Robert C. Ely, Alphonso H. Voorhees, St. Louis, for appellant.

Warner Fuller, Arnot L. Sheppard, St. Louis, for respondent.

RUDDY, Judge.

This is an action brought by plaintiff, Emerson Electric Manufacturing Company, against the St. Louis Terminal Distributing Company and the Terminal Railroad Association of St. Louis for damages to a shipment of sheet steel. During the course of the trial in the Circuit Court the plaintiff settled its controversy with the defendant, St. Louis Terminal Distributing Company, and dismissed its claim against said defendant with prejudice.

Plaintiff proceeded against the Terminal Railroad Association of St. Louis and obtained a verdict against it in the sum of $7,199.36. Said defendant filed its motion for judgment, in accordance with its motion for a directed verdict, or for a new trial. Thereafter, the court entered its order sustaining said motion for judgment, in accordance with said defendant's motion for a directed verdict and made a further order that if the judgment entered in accordance with its previous order be reversed by any appellate court, the defendant's motion for a new trial was sustained, because of error in giving an instruction. An appeal by plaintiff to reverse these orders and to reinstate the verdict of the jury has been perfected. We will refer to the defendants as defendant Distributing Company and defendant Terminal Railroad.

Plaintiff purchased from the Inland Steel Company 535.51 tons of electrical steel sheets, .025 of an inch thick, wrapped in 104 packages, each weighing approximately five tons. The shipment of this sheet steel originated in Indiana Harbor, Indiana, and was shipped from Indiana Harbor by rail to Chicago, Illinois. From Chicago, Illinois, it was transported by the John I. Hay Barge Line to the Mississippi River dock of the defendant Distributing Company. It arrived at the dock in good condition. Upon arrival, Joseph Klostermann, Traffic Manager for plaintiff, talked to a Mr. Brennan, Superintendent of defendant Distributing Company, and told him that plaintiff was going to have some sheet steel come to the docks of the Distributing Company and asked Mr. Brennan to have his company handle this steel. Mr. Klostermann also told Mr. Brennan that plaintiff had an overhead crane at its plant and asked that the sheet steel be placed in gondola or open top cars. Mr. Klostermann, when testifying, was asked the reason for requesting this type of car and answered, 'To enable us to unload it at our plant, because that is the only way we can unload it.' He further testified the open top cars were necessary for use of the overhead crane. Mr. Klostermann also told Mr. Brennan, that plaintiff's plant was on the tracks of the Wabash Railroad Company.

The defendant Distributing Company loaded the sheet steel into nine open top cars which were taken by the defendant Terminal Railroad and were delivered by it to the Wabash Railroad Company who delivered the sheet steel to the plant of plaintiff.

The packages of sheet steel had been wrapped by the Inland Steel Company with waterproof paper. Tied into and running lengthwise with each package were two four by four wooden skids. When the steel sheets arrived at plaintiff's plant the water-proof paper wrappings were torn and the sheet steel was rusty. The packages of sheet steel 'had been double-decked or one lift on top of another' and the supporting four by fours were broken. These four by four supports had been placed on top of the bottom packages of sheet steel and were intended as a support for the packages placed on top. The breaking of these supports had 'allowed the bundles loaded on top to drop and bend the steel' sheets. The damaged sheet steel could not be used by plaintiff in this condition and was sent to the Granite City Steel Company for reconditioning. The cost of reconditioning, transporting, inspecting and handling the damaged sheet steel plus the loss from shrinkage totaled $14,449.36. The defendant Distributing Company in its settlement paid plaintiff $7,250, leaving the amount in dispute with defendant Terminal Railroad, $7,199.36.

Plaintiff in its petition alleged that the defendant Distributing Company failed to use the proper equipment and devices to lift said sheet steel from the barge to the railroad cars; that said defendant placed timbers under the packages, when in the exercise of ordinary care such timbers should not have been placed in said cars; that said defendant negligently loaded some of the packages on top of other packages of sheet steel and failed to secure said packages of sheet steel so that said packages would not shift during transportation and that too many of said packages were loaded in each of the railroad cars. The petition further alleged that said defendant Distributing Company failed to load said packages of sheet steel in accordance with the 'Rules Governing the Loading of Commodities on Open Top Cars' promulgated by the Association of American Railroads, which were in effect at the time of the loading of said packages of sheet steel and further alleged that said rules represented the standard custom and practice in the railroad and shipping industry and alleged that in the exercise of ordinary care such rules should have been followed.

The petition alleged that defendant Terminal Railroad was negligent in the following respects: (1) in failing to inspect said railroad cars and the manner in which said cars were loaded, when such an inspection would have disclosed that said packages of sheet steel were not properly loaded; (2) in failing to discover that said packages of sheet steel were loaded improperly; and (3) in negligently accepting and transporting said packages of sheet steel when 'said packages of steel were not loaded in said railroad cars in accordance with the 'Rules Governing the Loading of Commodities on Open Top Cars' promulgated by the Association of American Railroads, which said rules represented the standard custom and practice in the railroad industry at said time, and which said rules required that railroad cars be inspected to determine the condition of the load before acceptance.'

It is practically conceded that the defendant Distributing Company did not load the cars in accordance with the rules pleaded. Plaintiff introduced in evidence the Rules Governing the Loading of Commodities on Open Top Cars published by the Association of American Railroads and read to the jury the following parts of rules:

General Rule No. 5: 'Gondola cars.--Loads not covered by individual figures and where the vacant space across car between the piles and between the load and car sides exceeds a total of 18 inches, must be secured so as to prevent moving or tipping towards sides of car.'

Figure 79 (This rule covers flat rolled steel less than 1/4 inch thick, in bundles, with high tension bands or high tension wires, strength 2000 pounds each, lengthwise, in gondola cars) 'Height of piles must not exceed 3/4 their base or 2 in. below top of car side.'

General Rule No. 1: 'Cars must be inspected to see that they are in suitable condition to safely carry loads to destination and that loads are properly and safely secured before being accepted from shippers.'

Evidence introduced by plaintiff showed that the packages of sheet steel were not blocked, nor was any material of any kind set between the packages of sheet steel or between the packages and the side of the car. The packages were loaded so that some of them rested on top of others with the height exceeding 3/4 of their base. The evidence further showed that the vacant space across the cars between the packages and between the packages and the car sides exceeded eighteen inches. There was testimony that steel sheets loaded in this manner would possibly shift and tip over.

It will be observed from what we have said, that this is not an action against the carrier for liability under the bill of lading. In such an action the carrier receives the goods for shipment and insures their delivery in accordance with the bill of lading, unless the loss is occasioned by the act of God, or of a public enemy; or by reason of inherent defect or vice of the goods shipped or on account of the fault of the shipper. Ford v. Wabash Ry. Co., Mo.App., 266 S.W. 1032, judgment affirmed 318 Mo. 723, 300 S.W. 769.

Plaintiff's petition charges specific negligence in the respects hereinbefore mentioned and the burden of proving at least one of the specific charges of negligence is that of plaintiff. Obviously, the Circuit Court must have found that plaintiff failed to make a submissible case for the jury when it sustained the motion of defendant Terminal Railroad for judgment in accordance with its motion for a directed verdict.

The first contention relied on by plaintiff to sustain the verdict of the jury is that defendant Terminal Railroad had a duty to inspect the cars and their contents before accepting or transporting them and that a failure to do so constitutes actionable negligence when damage results from such failure. It is admitted that none of said defendant's employees inspected these cars before accepting them for transportation. Plaintiff in support of this charge of negligence cites the case of Train v. Atchison, T. & S. F. Ry. Co., 214 Mo.App. 354, 253 S.W. 497. In this case a warehouse company, described by the court as an agent of the shipper, loaded an automobile onto one of defendant's cars. The railway company had nothing to do with the loading of the car. When the work of fastening the car was nearly, but not quite finished, McLane, a representative of the warehouse company, 'went over to the office of the Santa Fe teamtrack foreman, a man by the name of Freeman, and requested him to inspect the loading and place his O. K. on...