"On May 29, 1935, the Atlantic Commission Company bought a carload of fresh tomatoes at Crystal Springs, Mississippi to be shipped to itself as consignee at Nashville, Tennessee. That day or the next the tomatoes (packed in lugs or crates) were loaded at Crystal Springs in a ventilated refrigerator car (I.C. 4827) belonging to the Illinois Central Railroad Company. This car was carried over this company's line from Crystal Springs, Mississippi to Martin, Tennessee, where the Illinois Central Railroad connects with the Nashville, Chattanooga & St. Louis Railway, and from there the car was carried over the latter's line to Nashville. The car arrived at 10:55 A. M. May 31, the consignee, the Atlantic Commission Company, was notified at 12:55 P. M., and at 2:20 P. M. the car was placed on team track 179 at College Street `for inspection and disposition after inspection'. The Atlantic Commission Company had paid for the tomatoes, and, though the bill of lading was not admitted in evidence, it appears without dispute that the car was shipped under a straight bill of lading to the consignee, the Atlantic Commission Company, and traveled under seals from the loading point to the destination. At 4:30 P. M. May 31 Mr. Graves, the Atlantic Commission Company's Nashville manager, accompanied by Mr. George Hobbs, president of the Hobbs Banana Company, broke one of the seals to the car, entered, inspected the tomatoes, and sold the entire carload lot to the Hobbs Banana Company. Thereupon the Atlantic Commission Company gave the Nashville, Chattanooga & St. Louis Railway a diversion order (on printed form with the blanks filled in in typewriting), dated June 1, 1935, asking that the car `be diverted to new consignee Hobbs Banana Co., destination, Nashville, Tenn.', and stating, `Hobbs Banana Co. pays all freight charges to date'.
"At 2:30 P. M. June 1, 1935, at the request of the new consignee, the Hobbs Banana Company, the car was placed on the Harrison Street team track for delivery to the Hobbs Banana Company, and this company was notified by the railroad that the car had been so placed. After receiving such notice, the consignee had `forty-eight hours free time' in which to unload the car before the railroad began to charge demurrage on the car, under the regulations of the Interstate Commerce Commission.
"The Harrison Street yards are located within the limits of Nashville, between Fourth and Fifth Avenues and just south of Harrison Street. Many produce dealers have their places of business near these yards and large quantities of produce are daily brought into these yards. There are about ten tracks with concrete driveways between them so as to enable freight to be unloaded from the railroad cars and loaded directly into trucks of consignees or purchasers of the produce. The N. C. & St. L. Railway has a freight office in these yards to look after the handling of cars here. These yards are owned and operated jointly by the L. & N. Railroad Company and the N. C. & St. L. Railway under the name of the Nashville Terminals. The Hobbs Banana Company was a wholesale produce dealer and its place of business was near the track in the Harrison Street yards on which the car of tomatoes had been placed by the railroad for delivery to this company.
"For twelve or fourteen years it had been a custom permitted and sanctioned by the railroads for produce dealers or consignees receiving carload lots of produce in the Harrison Street yards to unload the cars by taking their customers into the cars, selling them the produce and delivering it to them directly from the cars into the customers' trucks. By thus using the railroad car as a sales room for selling and delivering the produce directly from the cars
the produce dealer saved the expense and delay of removing the produce from the car to his warehouse; and this custom prevailed in the Harrison Street yards especially with reference to fresh vegetables or perishable produce which must be moved quickly. It appears that a similar custom prevails in Birmingham, Paducah, Chicago, St. Louis, New York, Philadelphia and perhaps other large cities; but the Illinois Central Railroad does not run to Nashville and it was not shown that this company had actual knowledge of this custom.
"Upon purchasing the car of tomatoes the Hobbs Banana Company put its own lock on the car and shortly after the car was placed on the Harrison Street track it began to unload the car by taking its customers to the car and selling and delivering to them the produce directly from the car. At about 5 A. M. June 5, 1935, Nichols, who was a grocery merchant in Nashville, and who had been for several years a customer of the Hobbs Banana Company, came to the Company's warehouse to purchase some tomatoes. Not finding any there satisfactory to him, he was taken to the car by R. E. Hobbs, vice-president of the Hobbs Banana Company, who wished to sell him some of the tomatoes in the car. Hobbs opened the door of the car and he and Nichols entered. The floor of the car was about five feet above the concrete driveway and entrance was gained by means of an iron step or stirrup fastened underneath the car below the door. The lugs or crates of tomatoes had been packed in each end of the car so as to leave an aisle or open space in the center of the car where the door was located. The bracings by which the crates had been held back from the aisle had been taken out and some of the crates had been taken out of the center, so as to leave a clear space through the center of the car. Hobbs and Nichols were in the car several minutes, opening the crates, inspecting the tomatoes and talking about the price and the quantity which Nichols would purchase. While Hobbs was nailing the tops back on the crates, Nichols was standing on the edge of the false floor in the car near the center of the doorway, with his back to the door and his right hand against the door jam. Preparatory to climbing out of the car, he took his right hand from the door jam, turned his body to the left, but the heel of his left shoe was hung or fastened in the false floor of the car so that his foot could not move, which caused him to fall out the door several feet to the concrete, and his left leg to be twisted so that he suffered serious fractures of both bones of this leg.
"As stated the car was a ventilated refrigerator car. It was so constructed as to allow the air to circulate around the cargo. On the floor proper was a false floor, which consisted of slats running crosswise, fastened on top of timbers resting on the floor and running lengthwise of the car. The timbers were of such thickness as to make five or six inches of open space between the floor and the slats. The slats were three or four inches wide, and the open spaces between them were on an average of from one-half to one and one-half inches in width. The false floor was made in sections and was removable, each section being about four feet square. The particular section involved herein was exhibited on the trial below and sent up with the transcript. Four photographs of it were also sent up.
"The defects complained of were that what are called in the record slats numbers one and two of this section were old and worn, with their edges rounded or beveled, so that the space between these two slats was about two inches wide at the bottom and about three inches wide at the top. On the timbers to which these slats were fastened were some nail holes and some bent, rusty nails, indicating that there had been a narrow slat in this space between slats numbers one and two, which in some way had been taken out or removed. Across the ends of these slats was a metal bar fastened to...
