Illinois Cent. R. Co. v. Crawford, 42215

• Decision Date: 10 July 1962
• Docket Number: No. 42215,42215
• Citation: 244 Miss. 300,143 So.2d 427
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. Carl M. CRAWFORD.
• Court: Mississippi Supreme Court

Page 427

143 So.2d 427

244 Miss. 300

ILLINOIS CENTRAL RAILROAD COMPANY v. Carl M. CRAWFORD.

No. 42215.

Supreme Court of Mississippi.

July 10, 1962.

Sillers & Roberts, Rosedale, for appellant.

Jacobs, Griffith & Hatcher, Cleveland, for appellee.

RODGERS, Justice.

The appellee complains that this Court said in the original opinion rendered April 16, 1962, and reported in Miss., 140 So.2d 90, that, 'We fail to find in the record any evidence of negligence on the part of appellant, Illinois Central Railroad Company, that either caused or contributed to the plaintiff's injuries', and that the directed verdict requested by the defendant in the trial court should have been granted. The appellee cites the case of Williamson v. Inzer, 239 Miss. 707, 125 So.2d 77, in which the Court called attention to the following rule: 'When at the conclusion of plaintiff's case a motion is made to exclude the evidence and direct a verdict for defendant, the court must look solely to the testimony in behalf of plaintiff and accept that testimony as true; and if the facts testified to, along with reasonable inferences which could be drawn therefrom, would support a verdict for plaintiff, the directed verdict should not be given.'

The appellee argues that if there were any negligence shown by the evidence on the part of the Illinois Central Railroad Company, the case should have been submitted to the jury under the rule in the Williamson case, supra. It is said that the Railroad Company negligently adjusted the load of poles; that such negligence contributed to the injury of the appellee, and therefore the verdict of the jury in favor of appellee should not be set aside.

The appellee again points out, that the poles were not properly loaded by the shipper, so as to comply with the rules of the Associations of American Railroads which were promulgated for the proper loading of forest products on open top cars; that the freight had been improperly 'sealed' and that the poles had 'slipped seal.' It is said that the negligence on the part of the shipper 'triggered' the later events. It is again pointed out that when cars reached Jackson the load was in 'bad order' and that it was necessary for the Railroad Company to 'correct and adjust the load'; that in correcting the load the poles were pushed eastward, until the load was 'straight again' and that after moving the load out on the main track it was necessary to return it to a sidetrack to again 'adjust the load.' It is pointed out that the Railroad again adjusted the load and that it put a metal band around the north end of the load and made it taut, so that the poles were 'bunched' in a 'bundle' and pulled 'close together in a tight ball'; that the metal band was 'real tight'. It is asserted that such procedure was not proper because it destroyed the 'nesting' of the poles, and that the weight of the load was against the sides of the stakes instead of downward against the bed of the cars; that the tight metal band tended to make the poles spread on the south end of the poles so as to cause pressure against the sides of the load. It is also pointed out that the load of poles had spread out at that top of the load and was leaning against the 'green saplings.' The appellee deducts from this statement of facts that the Railroad Company was negligent, and concludes that such negligence proximately contributed to the hurt and injury of the appellee.

I

The appellee has cited the case of American Creosote Works of Louisiana v. Harp, 215 Miss. 5, 60 So.2d 514, 35 A.L.R.2d 603, as authority on the question of contributory negligence. In that case the employee of a consignee cut wires and iron bands on a load of poles at the direction of the foreman for consignee. When the last band had been severed the standards broke off at the cuffs and the load of poles rolled off the flat car and injured the servant of consignee. The Court held in that case that, under the facts presented, the alleged negligence of the shipper was a question for the jury. We think the Court was correct in its holding in the Harp case, supra. The shipper cannot, in effect, set a trap and avoid liability on the ground that the shipper had no contractual relation with the servant of consignee.

A custom has grown up in the transportation business, and is now accepted as a general rule of law, whereby the carrier usually loads all inanimate or ordinary freight tendered in less than car load lots, while the consignor loads in all cases where, for his convenience, the car is placed at his warehouse, or public tracks. The unloading of ordinary freight, is also governed by the same general rules. 9 Am.Jur., Carriers, Sec. 465, p. 701.

It is now a well-established rule that a shipper who negligently loads a flat car is liable in damages to the employees of the unloading consignee for injuries proximately resulting from the negligence of the shipper in loading the car. See the following authorities: Edwards v. Southern Railway Company, 233 Ala. 65, 169 So. 715, 106 A.L.R. 1133; Fouraker v. Hill & Morton, Inc., 162 Cal.App.2d 668, 328 P.2d 527; Owen v. Rheem Mfg. Co., 83 Cal.App.2d 42, 187 P.2d 785; Pacific States Lumber Company v. Bargar, (9th C.C.A.), 10 F.2d 335; Yandell v. National Fireproofing Corporation, 239 N.C. 1, 79 S.E.2d 223; Anno. 130 Am.St.Rep. 450.

The question of the respective liabilities of the shipper and consignee were settled before the case reached this Court and we are no longer burdened with this question, except insofar as this question has to do with acts of the shipper, who is said to have 'triggered the later events', and the order of the consignee, through its agent, directing the appellee to cut the bands holding the poles. The question presented and determined in the original opinion in this case was whether or not the carrier was liable, and not whether the shipper was liable as was true in the case of American Creosote Works of Louisiana v. Harp, supra, cited by the appellee.

II

The claim of liability against the carrier must be based upon some duty owed to the consignee and its servants. This rule is expressed by the textwriter in the following language: 'The liability of a railroad company for personal injuries and for damage to property caused by its negligence in the equipment, maintenance, or operation of its roads, as in the case of negligent injuries by other owners or proprietors of property generally, depends upon a breach of the duty to exercise the care which the law prescribes in the given circumstances, proximately resulting in damage to the plaintiff.' See 44 Am.Jur., Railroads, Section 412, p. 625.

What duties did the delivering carrier in this case owe to the consignee and its servants? The general rule as to these duties is set out in 44 Am.Jur., Railroads, Section 434, p. 655, as follows: 'The delivering carrier also owes to the consignee and to his employees engaged in unloading a railroad car which the delivering carrier has received from a connecting carrier the duty of making reasonable inspection of such car to determine whether it is safe for unloading, and to give the consignee notice or warning of defective conditions in the car which are discoverable by such inspection.' See Note American and English Annotated Cases, Vol. 16, p. 1155-6; Vincent & Hayne v. Yazoo & M. V. R. Co., 114 La. 1021, 38 So. 816.

This rule is expressed in American and English Annotated Cases, Vol. 9, p. 991, as follows: 'But when a car is loaded for a through shipment, and must pass over one or more connecting roads before it finally comes into the possession of the ultimate carrier for delivery to the consignee, it is the duty of the ultimate carrier, before delivering it, to examine it to ascertain whether it is in such a state of repair that the servants of the consignee, * * * can enter upon it with reasonable safety for the purpose of unloading it; and if it is not in such a condition, it is the duty of the railroad to make the necessary repairs, or to notify the consignee of the unsafe condition of the car, so that the consignee can warn his servants before they enter upon it.' There are many cases cited, including the following: Sykes v. St. Louis & S. F. R. Co., 178 Mo. 693, 77 S.W. 723; Gulf, W. T. & Ry. Co. v. Wittnebert, Tex.Civ.App., 104 S.W. 424.

In the case of Yandell v. National Fireproofing Corporation et al., 239 N.C. 1, 79 S.E.2d 223, the Court said: 'A delivering carrier by rail, which delivers to the consignee for unloading a car received by it from a connecting carrier, owes to the employees of the consignee, who are required to unload the car, the legal duty to make a reasonable inspection of the car to ascertain whether it is reasonably safe for unloading, and to repair or give warning of any dangerous condition in the car discoverable by such an inspection.' The great weight of authority is in accord with the foregoing authorities. See Anno. 152 A.L.R. 1313; 126 A.L.R. 1095; Erie Railroad Company v. Murphy (C.C.A. 6th), 108 F.2d 817, 126 A.L.R. 1093; Stokes v. Burlington-Rock Island R. Co., Tex.Civ.App., 165 S.W.2d 229; Edwards v. Southern Railway Company, supra.

III

The burden of proof was upon the plaintiff to show that the carrier did some act of negligence or failed to perform some duty which proximately contributed to the injury of the plaintiff and which was violative of a duty owed to the plaintiff by the carrier. 38 Am.Jur., Negligence, Sec. 285, p. 973; Thompson v. Mississippi Cent. R. Co., 175 Miss. 547, 166 So. 353; Scoggins v. Vicksburg Hospital, Inc., 229 Miss. 770, 91 So.2d 837, 70 A.L.R.2d 368.

The evidence on which the plaintiff sought to establish the negligence of...