Folsom v. Lowden

• Decision Date: 10 July 1943
• Docket Number: 35693.
• Parties: FOLSOM v. LOWDEN et al.
• Court: Kansas Supreme Court

139 P.2d 822

157 Kan. 328

FOLSOM v. LOWDEN et al.

No. 35693.

Supreme Court of Kansas

July 10, 1943

Syllabus by the Court.

Generally a railroad delivering a car of freight to the consignee to be unloaded, in absence of notice to the consignee to the contrary, represents to the consignee or his employee that the car is in a reasonably safe condition to be unloaded.

Where railroad delivers a car of freight to the consignee to be unloaded, the consignee or his employee is the invitee of the railroad for the purpose of unloading the car and while not an insurer of safety of consignee or his employee while unloading the car railroad is negligent if it furnishes a car so defective that consignee or his employee using due care is likely to be injured by such defect, and is liable under general rules if such injury results.

The "res ipsa loquitur" doctrine pertains to proof of negligence by circumstantial evidence.

In action by consignee's employee for injuries sustained when the end of coal car fell inward onto employee's foot after he had unloaded car, petition alleging that delivering railroad was negligent in failing to inspect car, to warn employee or to have car safe for employee to unload, was sufficient as against delivering railroad.

1. The general rule is that a railway company, when it delivers a car of freight to the consignee to be unloaded, in the absence of notice to the consignee to the contrary represents to the consignee or his employee that the car is in a reasonably safe condition to be unloaded.

2. In such a situation the consignee or his employee is regarded as an invitee of the railway company for the purpose of unloading the car.

3. While not an insurer of the safety of the consignee or his employee while unloading the car, the railway company is negligent if it furnishes a car defective to the extent that the consignee or his employee, using due care, is likely to be injured by reason of such defect, and is liable if such injury results.

4. This liability is not founded upon contract but upon negligence in furnishing a defective car, and the general rules relating to liability for negligence are, or may be, applicable.

Appeal from District Court, Wyandotte County, Division 2; Willard M Benton, Judge.

Personal injury action by David C. Folsom against Frank O. Lowden and another, as trustees of the estate of the Chicago, Rock Island & Pacific Railway Company and others. From a judgment sustaining named defendant's demurrer to the petition plaintiff appeals.

Reversed with directions.

J. Willard Haynes, of Kansas City, for appellant.

J. E. DuMars and Clayton M. Davis, both of Topeka, and E. S. McAnany and Thomas H. Van Cleave, both of Kansas City, for appellees.

HARVEY Justice.

This was an action for damages for personal injuries. The trial court sustained a demurrer to plaintiff's petition and he has appealed.

The pertinent allegations of the petition are as follows: Plaintiff was employed by Sturgis and others, retail coal dealers in Kansas City as a laborer unloading cars of coal. On October 4, 1941, he and a fellow employee had completed unloading a car of coal when the end of the car fell inward onto the floor, striking and crushing his left foot. It was alleged the car belonged to the Pennsylvania Railroad Company; that it was furnished by the Midland Valley Railroad Company to the Interstate Fuel Company and by that company loaded with coal at Excelsior, Arkansas, and shipped to plaintiff's employer; that the Midland Valley Railroad Company transported the car to Muskogee, Oklahoma, and delivered it to the Kansas, Oklahoma & Gulf Railway Company, which transported it to Baxter Springs, Kansas, and delivered it to the Kansas City Southern Railway Company, which transported it to Kansas City and delivered it to the trustees of the Chicago, Rock Island & Pacific Railway Company (hereinafter called the Rock Island), which received the car and transported the same to a switch track adjoining the place of business of plaintiff's employer on the north and extending east and west for the purpose of being unloaded. Plaintiff's employer and each of the railroad companies were made parties defendant. The demurrer here involved was filed by the Rock Island, the delivering carrier.

It was alleged the car had steel sidewalls about five feet high; that the end walls, each of which weighed about 600 pounds, were hinged at the bottom in some manner unknown to plaintiff; that when the end walls were in an upright position and properly maintained "they were, by appliances or latches, a more accurate description of which plaintiff is unable to give, fastened securely in said upright position to each side wall of the car at the point where the ends of the top of each end wall met the ends of the top of each side wall"; that such latches were "in a position where they could be readily seen by the agents, servants and employees of the defendants, whose duty it was to make inspections thereof and to ascertain whether or not said latches were operative." It was further alleged that, unknown to plaintiff, the east end wall of the "coal car was either so warped or sprung itself as to cause said appliances or latches to fail to catch or fasten into or with said end wall, and thus be inoperative, or said appliances or laches themselves were so broken sprung, out of repair or inoperative that while said then east end wall of said coal car was in said upright position it had the appearance to the plaintiff, who was unfamiliar with the construction and operating of said end wall and the appliances or latches in connection therewith, of being securely fastened while in fact it was at said times unfastened, unsupported, dangerous, defective and unsafe, which was likewise unknown to plaintiff." That on October 4, 1941, "plaintiff and a fellow employee, *** completed the unloading of the coal car, *** and when plaintiff was at a point in said car approximately five feet west of the then east end of said car," *** and "in the act of turning *** to start walking westward, *** the then east end wall of said car, which, prior to said time, had been in an upright position, suddenly, and without warning to plaintiff, *** fell inward and folded into and upon the floor of said car, its top edge falling upon and striking the top of plaintiff's left foot with great force and violence, crushing and severely and permanently injuring plaintiff." The injuries were detailed.

It is alleged defendants were negligent in that they (1) failed to make reasonable inspection of the car to ascertain whether it might be safely unloaded when they knew, or should have known, that it was dangerous, defective and unsafe; (2) failed to give notice or warning to plaintiff of the dangerous, defective condition of the end of the car when they knew, or should have known, of its condition; (3) failed to exercise ordinary care to have the coal car safe for plaintiff to unload; (4) failed to discover the dangerous and defective condition of the car and repair it before delivering it to plaintiff's employers; (5) failed to have and provide a coal car in reasonably safe condition for the use for which it was intended; (6) failed to have the end of the car securely fastened, when to the eye of an ordinary observer, unfamiliar with the construction of the car and having no duty to discover defects therein, it had the appearance of being securely fastened.

With respect to his employers it was alleged "*** That plaintiff is not advised and does not know whether said defendants [his employers] had notice of any defect in said coal car, but said defendants intended to and did put said coal car to the use of a conveyor of coal and received said coal in said conveyance. ***"

The sole question presented here is whether, under the facts pleaded, the Rock Island, as the delivering carrier, is in any way liable to plaintiff for his injury.

Appellant relies strongly on the principle announced and applied by the United States Circuit Court of Appeals, Sixth Circuit, in Erie R. Co. v. Murphy, 108 F.2d 817, 818, 126 A.L.R. 1093. There plaintiff was injured while unloading a carload of beaver board, delivered by the railway company to his employer, because of a defect in the car consisting of a hole in the floor. He obtained judgment against the delivering carrier, and in affirming the judgment the court said:

"Appellant's first contention is that, as delivering carrier, it was under no duty so to inspect a sealed car received from another carrier as to ascertain whether it was safe for unloading, but that only such inspection was required as would reveal whether the car was reasonably fit for transportation. ***

"Appellant's first contention is contrary to the great weight of authority. When injury in unloading a car is the proximate result of the car's unsafe condition, the delivering carrier is almost invariably held liable, if a reasonable inspection would have revealed the defect and the carrier gave no notice thereof. (Citing cases.)

"Since appellant was under a duty to appellee to exercise reasonable care to discover and give timely notice of defects that might imperil appellee's safety, the only remaining question is whether there was substantial evidence that appellant failed to perform that duty."

The case is reported in 126 A.L.R. 1093, with an annotation which reviews cases supporting the decision in addition to those cited in the opinion. To this list may be added the more recent case of the Missouri Pacific R. Co., Thompson Trustee, v. Armstrong, 200 Ark. 719, 141 S.W.2d 25, where in a somewhat similar case the initial carrier was held liable, it being held that in such a case the action might be maintained against any or all...