Hanson v. Ponder

• Decision Date: 30 November 1927
• Docket Number: (No. 997-4866.)
• Parties: HANSON v. PONDER et al.
• Court: Texas Supreme Court

300 S.W. 35

HANSON v. PONDER et al.

(No. 997-4866.)

Commission of Appeals of Texas, Section A.

November 30, 1927.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Charles Hanson against A. R. Ponder, receiver of the San Antonio, Uvalde & Gulf Railway Company, and others. A judgment for defendants was affirmed by the Court of Civil Appeals (293 S. W. 219), and plaintiff brings error. Reversed and remanded in part, and affirmed in part.

James M. Taylor and E. B. Ward, both of of Corpus Christi, for plaintiff in error.

Kleberg & North and Boone & Savage, all of Corpus Christi, and Mason Williams, of San Antonio, for defendants in error.

NICKELS, J.

Hanson sought recovery for personal injuries. A peremptory instruction against him was given and the judgment rendered upon a verdict in response was affirmed by the Court of Civil Appeals. 293 S. W. 219. Whether negligence and cause be issuable are amongst the basic questions here.

Inter alia, common carrier obligations include the duty to supply such cars and equipment as may be reasonably suitable and safe for carriage and delivery of the particular sort of commodity offered for conveyance. 4 R. C. L. 682. That duty in its direct aspects is owed to the shipper and consignee and has particular reference to final delivery of the goods in the same condition as upon receipt. Yet it may have other relations. If the contract involve unloading at destination by the consignee, there is in contemplation the right to perform that duty through employees and the probability that it will be thus performed. Hence rightful presence in or near the car of persons not having direct contract relation with the carrier is to be anticipated. Their presence is by invitation of the carrier no less than of the consignee; they are in no sense trespassers, and they are something more than mere licensees. 22 R. C. L. 929, 930. At least the initial carrier which furnishes the equipment either as true or special owner and the final carrier which by adoption makes the equipment its own and delegates to the consignee but a partial control is charged with the use of ordinary care to prevent injury to the consignee and his agents through defective or insufficient equipment. That, we think. is incident to the contractual duty, as well as being included in the doctrine of reasonably safe premises for invitees. The same rule of substantive law is applicable, we think, to intermediate carriers and with respect to the equipment up to the point of delivery to an immediate successor.

The differences in the situation of the various carriers has reference to the means of knowledge, and, therefore, to the proof rather than to the standard of conduct.

Two flat cars coupled together (as a "twin-car") were used as means of conveyance. The lading consisted of 53 logs (each 50 to 55 feet long, averaging 18 inches in diameter and weighing from 2,000 to 4,000 pounds) so placed on the "twin-car" as to compose a mass about 55 feet long, 8 feet high, 10 or 12 feet wide, with much the larger part resting upon one of the cars. The weight of the mass ranged between 106,000 to 212,000 pounds. To hold it in place two pine saplings (from 4½ to 7 inches in diamter according to various estimates) were inserted in brackets fastened to each side of each of the two cars. Those standards were not otherwise attached to the bodies of the cars so as to prevent upward shifting and possible resultant weakening or escape. Each standard was attached to its correspondent across the car by three strands of wire (about the size of a "three penny nail") "twisted together" at each of three positions, viz., between the botton tier and the one next following, between the third and fourth tiers (from the bottom of the car) and immediately above the top tier. The cars, thus loaded, were to be transported several hundreds of miles, and with such switching at least as would be necessary to interchange as between five carriers.

The standards, or devices answering their purpose, whether inserted by the consignor or the initial carrier, must be regarded as a part of the equipment, for, manifestly, the commodity tendered by the consignor and accepted by the carriers was not subject to transportation and delivery without them. That it was so regarded, in point of fact, is shown by the testimony (that of Court and Stauder, for example) which exhibits special "loading rules" prescribed by the American Railway Association, Mechanical Department, for observance by the shipper (who loads) and the carrier and which deal with the matter of standards in such manner as to require the carrier to reject a "load" and to set it back for "readjustment" if proper standards, bracing, etc., do not appear, as also by the testimony of most (if not all) of the "inspectors" and conductors of the various railway companies to the general effect that their duties in respect to such shipments included special attention to standards and bracing and position of the "load."

If no more than what has been stated were shown, it could not be said, as a matter of law, that the "twin-car" was sufficiently or properly equipped, even though it be true that numerous inspections were made between points of origin and destination and those who made them pronounced the cars and equipment and "load" in good and proper condition. Such reports of actual inspections would (in touching sufficiency of equipment) be no more than conclusions against whose probative force there would arise such inferences as may be predicated in the great weight of the "load" and its inevitable tendencies to shift en masse as well as by parts in response to the movements and shocks to which the cars were subject. The holding strength of the eight pine saplings, as used, is not shown, and there is for them in judicial knowledge no such characteristics as to justify a fiat of invincibility. Photographs of the cars in evidence exhibit many unfilled brackets, and, for aught that appears, additional standards or additional bracing could have been used without undue burden.

But in respect to that subject there is the testimony of Kelly, a man apparently qualified to have and to express an opinion, to the effect that there ought to have been sufficient standards wired together crosswise between each tier of logs. If it be said that the rules were met, it remains true that the rules might be insufficient, for the "man on the spot," who makes or applies rules, may be an expert and use his best judgment and yet be negligent. The Germanic, 196 U. S. 589, 25 S. Ct. 317, 49 L. Ed. 610. If the rules made a certain prescription and it was observed, that would but present a difference in judgment as between those who compiled the rules and Mr. Kelly.

The standards used were (as indicated) merely set into the brackets. There is testimony (that of Anderson, "car foreman" for the final carrier) that they were "tapered" at the lower ends so as to fit the brackets. It might be assumed, we think, that swaying of the cars and "load" in movement might well be expected to loosen the standards and give them a tendency to escape the sockets. Anderson remarked, "It is very often the case that the stakes" (holding loads of piling in place) "slip up," and that "the only practical way he had ever known to hold the stakes down" was by means of rods placed "up against the bottom of the load" and run (crosswise) through each pair of stakes. Kelly said that, in order to prevent "jumping up and down and sideways," the "load," if not the stakes, ought to be fastened to the bottom of the car. When the shipment reached Pleasanton 30 miles from San Antonio in the direction of Corpus Christi, Anderson discovered that two of the standards (on one side of one of the cars) had slipped upward "one and a half or two inches" from their original positions. One of the things which attracted his attention was the fact that the wires higher up on these standards had cut downward, "at an angle," through the "coarse bark" of the saplings. The standards were not driven back to original positions, but Anderson inserted two rods in the manner indicated by him as the "only practical way to hold the stakes down" in order to prevent further slipping during the remainder of the transportation to Corpus Christi. It cannot be ruled, as a matter of law, that such slipping of standards would not result in impaired strength or otherwise prevent their adequacy for the purposes used. Hence there is an issue about failure to secure the standards or the "load" itself to the body of the cars.

The "loading rules" mentioned require that piling be placed "butt to top and top to butt"; that is, alternation in each tier of large ends and small ends. Manifestly, the purpose is to secure, so far as possible, an evenly balanced mass. And that design, in part at least, has relation to the character, number, strength, and bracing of the standards or other holding devices. Inspectors for the consignor and initial carrier testified that this "load" was so placed; yet there is in the testimony of Kelly and that of Cook, witnesses for the plaintiff, statements which might properly be taken by a trier of facts as showing that "butts" very greatly preponderated in that part of the "load" which rested upon the most heavily taxed car. Existence of a recognized rule and proof of conformity would not inevitably disprove improper loading in this respect, but its existence and the claim of observance would be some evidence that, in fact, the "load" ought to have been made that way. And the testimony of Kelly and Cook is some evidence of failure to do what ought to have been done.

The "twin-car" was set on the spur track in the forenoon, and its unloading was undertaken about noon of the same day. The cross wires above the top of the "load" were cut and the standards...