Jackson v. Chicago, M., St. P. & P.R. Co.

• Citation: 30 N.W.2d 97,238 Iowa 1253
• Decision Date: 16 December 1947
• Docket Number: 47107.
• Court: United States State Supreme Court of Iowa
• Parties: JACKSON v. CHICAGO, M., ST. P. & P. R. CO. et al.

30 N.W.2d 97

238 Iowa 1253

JACKSON v. CHICAGO, M., ST. P. & P. R. CO. et al.

No. 47107.

Supreme Court of Iowa

December 16, 1947

[Copyrighted Material Omitted]

Duncan Hughes & Bierman, of Des Moines, for appellant Chicago M., St. P. and P. R. Co.

Evans, Riley, English & Jones, of Des Moines, for defendant Chicago, G. W. R. Co.

Herrick, Sloan & Langdon, of Des Moines, and R. B. Hawkins, of Leon, for appellee.

GARFIELD Justice.

Plaintiff Jackson, age 40, employed by Swift & Co. in Des Moines, was injured by the fall of a heavy steel door from a boxcar loaded with soybeans consigned to Swift. Plaintiff and Michael, a fellow employee, under the supervision of Ashby, acting foreman at the Swift plant, were attempting to open the door preparatory to unloading the beans when the door fell out from the top and struck plaintiff. Defendant Milwaukee Railroad had delivered the car empty to a shipper at Hobarton, Iowa, to be loaded and transported to Swift in Des Moines. The Milwaukee delivered the loaded car in Des Moines to the Des Moines Union Railroad at 6:10 p. m., October 16, 1944. The car was delivered to the Swift plant by defendant Great Western Railway on October 20. Plaintiff was injured about 7:30 a. m. on October 21.

Plaintiff brought this action against the initial carrier, the Milwaukee, and the delivering carrier, the Great Western, claiming they negligently furnished a car in a dangerous and defective condition for Swift's employees to unload in that the door was insecurely fastened to the car and the mechanism by which it was held to the car was rotten and weak, bent and defective and did not securely hold the door upon the car, and that defendants knew or in the exercise of reasonable care should have known of such defective condition. The railroads' answers deny liability and plead assumption of risk.

Trial resulted in a verdict for plaintiff for $20,000 against the Milwaukee. The trial court overruled the Milwaukee's motion for new trial on condition plaintiff file a remittitur of $5000. The remittitur was filed and judgment entered against the Milwaukee for $15,000 from which it has appealed. Hereinafter we refer to the Milwaukee as defendant.

I. It is contended defendant was entitled to a directed verdict on the ground the evidence fails to establish its negligence as a proximate cause of plaintiff's injury.

When an initial carrier furnishes a car to a shipper to be loaded with freight and then delivered to a consignee whose servants are to unload the car, it is charged with the duty to exercise ordinary care to see that the car is in such state of repair that such servants, while exercising ordinary care themselves, can enter upon it with reasonable safety for the purpose of unloading it. Sykes v. St. Louis & S. F. R. Co., 178 Mo. 693, 77 S.W. 723, 728; Doering v. St. Louis & O'Fallon R. Co., Mo.App., 63 S.W.2d 450, 451. See also Louisville & N. R. Co. v. Freppon, 134 Ky. 650, 121 S.W. 454, 456; Missouri P. R. Co. v. Armstrong, 200 Ark. 719, 141 S.W.2d 25; Waldron v. Director General, 4 Cir., 266 F. 196, 198, and cases cited; Anno. 126 A.L.R. 1095.

Plaintiff as an employee of the consignee stood in the position of an invitee to whom defendant owed the duty of reasonable care. Spears v. New York Cent. R. Co., 61 Ohio App. 404, 22 N.E.2d 634, 637; Corbett v. New York C. & H. R. R. Co., 215 Mass. 435, 102 N.E. 648; Ryan v. New York, N. H. & H. R. Co., C.C.N.Y., 115 F. 197; Louisville & N. R. Co. v. Freppon, supra, which also holds an employee of the consignee has a right to assume a freight car delivered the consignee for unloading will be reasonably safe for his use.

It is not material that the car in question was the property of the Nickel Plate Railroad. Defendant had assumed control of it and was as much responsible for its condition as for one of its own cars. Ladd v. New York, N. H. & H. R. Co., 193 Mass. 359, 79 N.E. 742, 9 L.R.A.,N.S.., 874, 9 Ann.Cas. 988, and cases cited. See also 13 C.J.S., Carriers, § 50.

'The right of a servant of a consignee to recover for injuries sustained by reason of defects in a car which he was engaged in unloading has frequently been affirmed.' Anno. 41 A.L.R. 8, 125-127.

In determining the sufficiency of the evidence of defendant's negligence, of course the record must be considered in the light most favorable to plaintiff. When this is done we think the evidence upon this issue sufficient.

The track on which the car of beans was 'spotted' runs north and south on the west side of the Swift plant. The beans were to be unloaded into a pit beneath the track. The car was of wood with two doors on each side, but only one door on each side would open. The door on the west side had been opened. When plaintiff appeared on the scene Michael was attempting to open the east door for more ventilation. That this was a proper purpose see Corbett v. New York C. & H. R. R. Co., 215 Mass. 435, 102 N.E. 648.

The east door was of steel, 6 2/3 feet wide and about 9 feet high. Fastened to the bottom of the door were rollers which moved upon a track attached to the outside bottom of the car and parallel with its side. The top of the door was held in place by a steel angle iron about 1/4 inch thick fastened to the top of the car, which projected out from the car about 2 inches and then turned down 1 to 2 inches over the top of the door. The door was designed to move forward or back inside this guide or housing.

The door was sticking and Michael was attempting to pry it open with a steel pinch bar about 3 feet long. Plaintiff procured a similar bar and assisted Michael in prying the door. They succeeded in prying open the door about 2 inches but were unable to widen the opening. The two men then examined the lower track and found nothing wrong. It is common practice to use pinch bars in opening car doors. See State v. Sprague, 201 Minn. 415, 276 N.W. 744, 745.

Plaintiff and Michael then decided they would hook a tractor onto the door and pull it open. Michael got a small tractor and a half-inch cable 25 to 30 feet long. Michael placed the tractor, headed north 'astraddle' the east rail on which the car was resting and just north of it. One end of the cable was hooked to the drawbar of the tractor, the other end to the handle on the door about 6 inches above the center of the lower edge of the door. However the hook on the cable could not be securely fastened to the door handle and plaintiff held the hook in the handle with one end of his pinch bar.

Just before plaintiff attempted to fasten the cable to the door handle Ashby, Swift's acting foreman, arrived on the scene to supervise the work. Ashby picked up another pinch bar and he and plaintiff again tried to pry the door open with bars but without success. When plaintiff was holding the cable hook to the door handle he was standing about 6 inches from the car, even with the center of the door, on a concrete platform east of the east rail. Plaintiff then directed Michael to move the tractor forward. Michael 'inched ahead' to take the slack out of the cable and then stopped the tractor.

Before the slack was entirely out of the cable and when the tractor was not moving, Michael 'hollered' to 'look out.' Plaintiff looked up and saw the door falling out from the top. He ran from the car but the door fell on his head and caused serious permanent injury.

Soon after the door fell it was discovered the angle iron at the top of the car was bent up in an arc from 3/4 inch or 1 inch to 1 1/2 inches above its normal position. Probably the greater part of the angle iron above the door opening was raised 1 1/2 inches. At the places where the angle iron was fastened to the side of the car the wood was rotten and decayed.

Defendant argues the only permissible inference is that the pull of the tractor moved the door and forced the angle iron out of position, thus causing the door to fall, or in any event, such inference is as reasonable as that the angle iron was defective when the car left defendant's possession. One answer to defendant's argument is that plaintiff testified emphatically and repeatedly the door did not move after the tractor was attached but, on the contrary, as stated, the slack was still in the cable when the door fell.

It is true Ashby gave it as his recollection the door 'just slightly moved,' 'moved just a little bit,' 'moved a very little if any' from the pull of the tractor. But Ashby, with considerable experience in opening boxcar doors, also said positively he was watching the door while the tractor was attached and the door did not move upward in any way, the angle iron was not raised by the pull of the tractor and they did not pull on the door hard enough or do anything to cause the iron guide to be raised.

There is no evidence in conflict with Ashby's testimony last referred to. Michael, in army service in the Philippines at the time of trial, was not a witness. Of course the credibility of plaintiff and Ashby was for the jury. We certainly cannot reject their evidence as a matter of law on the ground it is unbelievable.

The testimony as to the defective condition of this angle iron immediately after the accident, coupled with the positive showing such condition was not caused by the pull of the tractor, is sufficient evidence such condition existed before defendant delivered the car to the intermediate carrier. Further, it is surely proper to infer the rotten and decayed condition of the wood at the places where the angle iron was attached to the side of the car, as shown by the undisputed evidence, was in existence before the car left defendant's possession. Defendant offered no evidence the car was not in a defective condition when delivered by it to the shipper at Hobarton.

We conclude...