Inland Container Corp. v. Atlantic Coast Line R. Co.

• Decision Date: 10 June 1959
• Docket Number: No. 17576.,17576.
• Citation: 266 F.2d 857
• Parties: INLAND CONTAINER CORPORATION, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

266 F.2d 857 (1959)

INLAND CONTAINER CORPORATION, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.

No. 17576.

United States Court of Appeals Fifth Circuit.

May 13, 1959.

Rehearing Denied June 10, 1959.

William M. Howell, Jacksonville, Fla., Howell & Kirby, Jacksonville, Fla., of counsel, for appellant.

Clark W. Toole, Jr., Louis Kurz, Kurz & Toole, Jacksonville, Fla., for appellee.

Before TUTTLE, CAMERON and WISDOM, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment based on a directed verdict for appellee, suing to recover for the amount of a judgment it had been required to pay for the death of its employee. The suit was on an indemnity agreement executed by the appellant as an inducement for appellee railroad to construct its side tracks closer than safety would dictate to the side of appellant's building. The case is to be decided on the basis of Florida law.

During the latter part of 1955, the Inland Container Corporation built a new plant, in pursuing its business as manufacturer of corrugated containers and certain other paper products, and applied for and obtained an order of the Florida Railroad and Public Utilities Commission authorizing construction of this plant at less than standard clearance at a sidetrack or spur track of about 1,000 feet in length; that is, from a point in the center of the track between the rails to the building, the distance of five feet, ten inches, as compared with a standard clearance of eight feet, six inches, or a little more. The practical effect of this was that there was not room on the side of a car being spotted at the industry's building and the building itself to clear a man if that man should be riding or positioned on the side of the box car closest to the building, this distance being merely some six to eight inches.

The pertinent paragraph of the sidetrack agreement, specifically, Paragraph 11, reads as follows:

"Notwithstanding any other provisions herein, it is understood and agreed that the said building is located and maintained by the industry at substandard clearance as shown on attached blueprints between points `AA\' and `BB\'. By reason of the additional hazard created thereby the Industry shall and does hereby assume entire responsibility for all damage to property or injury to or death of any person or persons including, but not limited to the employees of the Railroad, caused by or in any manner arising out of the presence or use of said building at substandard clearance, whether caused by negligence of the Railroad or howsoever resulting, and the Industry further agrees to indemnify and save harmless against all loss, damages, claims, suits or judgments resulting from or arising out of damage, injury or death as aforesaid."

The following statement of appellant's case, stated most favorably to it, is taken almost verbatim from its brief. Some additional statements are made where appellant has omitted significant undisputed items:

On June 23, 1956, Joel Edwin McGill was employed by the railroad as a brakeman. He was working under Conductor W. W. Culp on a through freight train between Sanford and Tampa, Florida. They were to spot a certain box car at the Inland Container Corporation plant at Pinecastle, which is about five miles south of Orlando, and the particular car to be spotted was immediately behind the engine, in a train containing forty-four other freight cars. Their direction and progress was south. When they reached Pinecastle and the vicinity of this industry, the train crew detached the car to be spotted from the remainder of the train and jerked it into the side track by means of a flying switch, that is, the brakeman rode the car and as they approached the switch point leading into the industry, the car was uncoupled from the engine, a signal given and the engine speeded up, went on past the switch away from the rolling box car in a southerly direction, then the conductor threw the switch which allowed the box car to roll into the side track and toward the building. Instead of stopping on the side track past the switch point, this particular box car continued to roll on down the track, although brakeman McGill was turning the hand brake wheel in an apparent effort to get the car stopped; nevertheless, the speed was not retarded and the car traveled between seven hundred and eight hundred feet before it reached the northeast corner of the building. When McGill was about twenty feet from the building, he attempted to go down the ladder on the right hand side of the leading end of the rolling box car but, because of that short distance, only twenty feet, and the speed of the car, he succeeded in getting only two or three rungs down the ladder when it reached the building and he was crushed between the side of the car and the building and he died. Meanwhile, the offending box car continued to roll down the track adjacent to the building for some two hundred feet, crashed over some cross ties which were placed there at the dead end of the track and into some concrete steps reinforced with steel, knocking them down.

The track had a slightly descending grade toward the building and a "normal" speed for switching in situations where a flying switch was executed would be 4 m. p. h. The speed when it left the track was about 3 m. p. h. When it reached the end of the track it may have been going as much as 7-10 m. p. h.

Trainmaster Beach, who was called by the defendant under the adverse witness rule, stated that although in certain situations it was common practice "to jerk cars by into tracks when conditions are favorable, we usually shove the car in if it's possible to do so." There was a "team track" a quarter of a mile north of the Inland Container track — and which, therefore, had already been traversed by this train crew before reaching the industry — and "that side track could be used to get the engine behind the car." The train crew considered the matter of how to place this car and concluded the way used was appropriate.

This substandard clearance was known by both parties to be dangerous and hazardous. The railroad had issued a bulletin, No. 5566, dated November 7, 1955, which announced the opening of this side track and treated, in a separate paragraph, the dangerous aspects by saying, "Note: This track will not clear man on side of car." And a subsequent bulletin, No. 5589 dated November 14, 1955, likewise called attention to the close clearance, and there was a compulsory duty on each of the employees to read and sign these bulletins. The conductor, Culp, according to these exhibits, did sign both bulletins, but McGill signed only the second one, and it is considered a dereliction of duty if an employee does not sign this type of bulletin. Culp did not warn McGill, as indicated by the following question and answer:

"Q. Prior to drifting

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