Griffin v. Missouri Pacific Railroad Company

• Decision Date: 27 June 1969
• Docket Number: No. 26579.,26579.
• Citation: 413 F.2d 9
• Parties: Alfred GRIFFIN, Plaintiff-Appellee-Cross-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant, and The Kansas City Southern Railway Company, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

413 F.2d 9 (1969)

Alfred GRIFFIN, Plaintiff-Appellee-Cross-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant, and The Kansas City Southern Railway Company, Defendant-Appellant-Cross-Appellee.

No. 26579.

United States Court of Appeals Fifth Circuit.

June 27, 1969.

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Arthur R. Carmody, Jr., Shreveport, La., Wilkinson, Woods, Carmody, Meadows & Hall, Shreveport, La., for defendant-appellant.

Everett R. Scott, Jr., Kaufman, Anderson, Leithead, Scott & Boudreau, Lake Charles, La., for Missouri Pac. R. Co.

Russell T. Tritico, Lake Charles, La., for appellee.

V. Farley Sonnier, Lafayette, La., A. Lane Plauche, Lake Charles, La., for other interested parties.

Before COLEMAN and GODBOLD, Circuit Judges, and SCOTT, District Judge.

SCOTT, District Judge:

This is an appeal by The Kansas City Southern Railway Company, defendant-appellant, from a judgment awarding Alfred Griffin, a laborer employed by The Port of Lake Charles, Louisiana, $26,117.18 in damages for personal injuries suffered when a 30-foot iron rail was shaken loose from the bulkhead side-wall of a railroad "hopper car". Jurisdiction was based on diversity of citizenship, 28 U.S.C. § 1332. We affirm.

Hopper Car No. 5816, built in 1941 and rebuilt in 1962, was owned by the appellant The Kansas City Southern Railway Company. The bulkheads along either side of this car were reinforced with a channel iron which was welded to the bulkhead for additional support. The car had been used continuously between Cities Service Refinery in Lake Charles and The Port of Lake Charles at the Lake Charles Harbor and Terminal District from 1962 until the time of the accident. It was one of several hopper cars which were loaded with petroleum coke at the Cities Service Refinery and taken by the Southern Pacific Railroad to the Southern Pacific — Kansas City Southern Interchange in Lake Charles where a Kansas City Southern crew inspected the car and then moved it over its tracks as connecting carrier to the Missouri Pacific Railroad at the Kansas City Southern — Missouri Pacific interchange. There a Missouri Pacific crew took over and two car inspectors made an additional inspection for safety appliances (described as "perfunctory" by the trial court). The Missouri Pacific crew carried the car over its tracks to the Port. The Port made a third inspection of the car.

Two days after the car arrived at the Port it was moved to the unloading area and ultimately positioned under a two-ton vibrator machine to assist in the customary unloading of the bulk coke. Griffin had been employed only a few hours before the unloading of the car took place. It was his job to open the hopper doors with a sledge hammer and to stand by to see that the coke was unloaded. Another man stood on the opposite side of the car, and a third man operated the vibrator.

The vibrator was lowered so that its metal claws grasped the outside bulkhead of the car, then the hopper doors under the car were opened and the vibrator turned on. The vibrator shook the car for about 30 minutes, and as it was being moved away the channel iron became dislodged and fell on Griffin. It is unclear as to whether the vibrator was actually in operation when the rail shook loose.

Griffin brought suit in the Western District of Louisiana and joined the Missouri Pacific Railroad Company and The Kansas City Southern Railway Company as defendants. The Port was not joined, since it had entered into a state court-approved settlement to pay workmen's compensation benefits to Griffin. The Bituminous Casualty Corporation, insurer for the Port intervened to recover the workmen's compensation payments. The case was tried without a jury.

The Missouri Pacific was made a defendant on the ground that it was negligent in delivering the car to the Port in a dangerous condition, which a reasonably careful inspection would have disclosed. However, the Court found that the car had a "latent defect" which could not have been discovered in a routine inspection and the Missouri Pacific was exonerated. The Court also found that the Port was negligent in its excessive use of the vibrator. It rendered a verdict against Kansas City Southern, holding that it had furnished a car which was not reasonably safe for the unloading process, and that the furnishing of the car in that condition was the proximate cause of the accident.

The Court further stated that Kansas City Southern, being well acquainted with the effects of the vibrator, should not have furnished cars with a structural defect in the welding. The plaintiff was awarded $26,117.18 and, from that amount, $5,087.18 was paid to the intervenor, Bituminous Casualty Corporation.

All of the appellant's allegations are closely related and consequently they will be discussed together. In holding for Griffin, the Court made the following findings of fact: The car, delivered to Kansas City Southern in 1962, was not made specifically for unloading service of the type which would subject it to the shaking process of the vibrator. As it was moved to the Port, Missouri Pacific employees made a "perfunctory" inspection for safety appliances. When the car was placed under the vibrator it appeared in good condition; there was no evidence that the support rail was loose before the shaking began.

The Court also found that for a "long time these channel irons on this type car were being loosened and dislodged by the `shaking' process". There was testimony by the mechanical foreman of Kansas City Southern that two of every ten cars returned from the Port revealed loosened channel irons. The Kansas City Southern knew that Port employees worked alongside the cars while they were unloaded. The channel iron on the car in question was held by one or two tack welds, not by a continuous seam weld, when it arrived at the Port.¹ The Court further found that Kansas City Southern knew the effect of the shaking process on the car and knew or should have known that the shaking might dislodge the irons.

From these facts the Court concluded that the car was not reasonably safe for the use to which Kansas City Southern knew it was being put, and that the furnishing of the unsafe car was the proximate cause of Griffin's injury. While so doing, the Judge noted that the negligence of the Port was obvious, as they too were aware of the condition of the car as the cars entered the Port and of the effects of the vibrator upon the bulkhead rails.

Much of the appellant's argument challenges the findings of fact by the lower court:

(1) That the channel iron was insecurely welded;

(2) That Kansas City Southern knew or should have known of the defect; and

(3) That Kansas City Southern knew of the use to which the car would be put.

With respect to these contentions of factual errors, the appellate court is guided by Federal Rule of Civil Procedure 52(a), which provides in part that:

"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness".

This Court has adhered to that rule in many instances. As it has previously said:

"A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Where the evidence would support a conclusion either way, a choice by the trial judge between two permissible views of the weight of the evidence is not clearly erroneous, and the fact that the trial judge totally rejected an opposed view impeaches neither his impartiality nor the propriety of his conclusions". Chaney v. City of Galveston, 368 F.2d 774, 776 (5th Cir. 1966).

The burden of proving that the findings are clearly erroneous is, of course, on the party attacking them. Cedillo v. Standard Oil Co. of Texas, 291 F.2d 246 (5th Cir. 1961).

On the question as to whether the rail fell because of defective welding, three witnesses were called. One, a lay witness, testified that the iron was attached by only one of two welds, thus creating a defective condition and ultimately causing the break. Two expert witnesses testified that the bar gave only an appearance of being welded in only a few places but was actually welded in a continuous seam. It was their opinion that the vibrations from the vibrator caused the break.

The appellant contends that the Court erred in not accepting the...