Kansas City Southern R. Co. v. Guillory, 6662
| Decision Date | 06 February 1964 |
| Docket Number | No. 6662,6662 |
| Citation | 376 S.W.2d 72 |
| Parties | KANSAS CITY SOUTHERN RAILROAD COMPANY, Appellant, v. Wilbert GUILLORY, Appellee. |
| Court | Texas Court of Appeals |
Orgain, Bell & Tucker, Beaumont, for appellant.
Woodson E. Dryden, Jack M. Carson, Beaumont, for appellee.
Appellee sued appellant for damages because of an injury received by him in the course of his employment for Gulf States Asphalt Company. He alleged he was loading cartons of asphalt in a freight car placed upon the asphalt company's siding in its yard in Beaumont, and while working in this freight car he slipped and fell on small plastic pellets which were on the floor in a dark end of the boxcar causing him to sustain a broken leg and other injuries. As basis for his action he alleged that in furnishing the car to the shipper, the asphalt company for loading asphalt, appellant was negligent in failing to clean out the boxcar, in failing to warn him of the plastic pellets on the floor of the car, in furnishing the car in a dangerous condition and in failing to furnish plaintiff a safe place to work. Appellant will sometimes be referred to herein as the Railway Company.
Several grounds of negligence were submitted to the jury. These were: whether the Railway Company failed to properly clean the boxcar and whether this was negligence; whether it delivered said car to the asphalt company with plastic pellets on the floor and whether this was negligence; whether the Railway Company failed to warn appellee that said boxcar had plastic pellets on the floor and whether this was negligence; whether the Railway Company delivered said car in a dangerous condition and whether this was negligence. Following these several issues were issues of proximate cause. All of said issues were found favorably to appellee. There were a number of issues submitted on contributory negligence but they were also found in favor of appellee. Judgment was rendered upon said verdict for appellee and this appeal resulted.
Appellant attacks the judgment from various standpoints. We will not attempt to state all the points but content ourselves with a summary of the pertinent questions involved. The primary question, as readily recognized and stated by the parties, is this: 'The jugular vein of this case is the trial court's assumption throughout its charge, of one basic duty--the duty to clean or sweep the floor of a boxcar.' The Railway Company asserts the trial court erred in such assumption. The briefs of the parties indicate much research on this question and we have done some on our own. Although there seems to be a general unanimity of authority that a railway company is required to exercise ordinary care in order that a reasonably safe car may be furnished for those using it, 75 C.J.S. Railroads Sec. 924, pp. 333-336, the cases all appear to imvolve some defect of construction or maintenance of the car itself. In the research made, no case has been found which defines the duty, if any, of a railway company furnishing a boxcar to ascertain whether the car contains a foreign substance which may injuriously affect a shipper's employees while working therein.
Texts are quoted in appellee's brief. These are: Sec. 392, Restatement of the Law of Torts, which reads in part:
'One who supplies to another, directly or through a third person, a chattel to be used for the supplier's business purposes is subject to liability to those for whose use the chattel is supplied, or those whom he should expect to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied:
'(a) if the supplier has failed to exercise reasonable care to make the chattel safe for the use for which it is supplied.'
'* * * the prevailing view is that a railway company is under a duty of reasonable inspection before turning over its cars, and that the obligation extends to employees of a shipper, of a consignee, and of a connecting carrier.' Handbook of Prosser on Torts, p. 686.
It is singular that there is a dearth of adjudicated cases on the very point involved. Is that, however, to be taken necessarily that no duty rests upon the part of the furnishing carrier to see that the car furnished is free of foreign substances that would be a hazard for those who would work in the car loading it? Paucity of authority is signal to 'stop, look and listen'. However, that alone is not decisive.
If it is the duty of the furnishing carrier to see that its chattel, the freight car, is free of hazards for those who would use it, what is the test to apply? As set forth in 75 C.J.S. Railroads Sec. 924, p. 333, we think the proper general rule is that the railroad is under a duty to use ordinary care to furnish a car that is reasonably safe. See also, 3 Elliott on Railroads, 2nd Ed., Sec. 1265-c, p. 641. The boxcar is a chattel and the duty of one who furnishes a chattel for use is likened to that of an occupier of land to an invitee. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99. It is recognized that those who work in a freight car, as was appellee, are invitees of the railroad--they have a lawful right there. Fort Worth & D. C. Railway Co. v. Hambright, Tex.Civ.App., 130 S.W.2d 436; 75 C.J.S. Railroads Sec. 905, p. 289; 3 Elliott on Railroads, 2nd Ed., Sec. 1265-c, p. 641. It is said that an occupier of premises owes ordinary care to see that the premises are in a reasonably safe condition for use by his invitees. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073. This is a general and broad statement. So, also is the statement above that a railway company owes the duty of ordinary care to furnish a reasonably safe car for those who would work in it. While general and broad in statement the application of these legal duties is somewhat narrower. As said in commenting upon this broad statement of a land occupier's duty, we quote Justice Pope in Camp v. J. H. Kirkpatrick Co., Tex.Civ.App., 250 S.W.2d 413 at p. 416:
'A more correct statement of an owner's duty would be that he is under a duty to use reasonable care to make and keep the premises free from danger to invitees when the danger is known or should be known by the proprietor.'
The duty is not due an invitee that the premises be altered or changed to obviate known and obvious dangers for he takes the premises as they are. Marshall v. San Jacinto Building, Inc., Tex.Civ.App., 67 S.W.2d 372, 374...
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