L. & N. R. R. Co. v. Freppon
| Decision Date | 01 October 1909 |
| Citation | 134 Ky. 650 |
| Parties | L. & N. R. R. Co. v. Freppon |
| Court | Kentucky Court of Appeals |
Appeal from Henderson Circuit Court.
Judgment for plaintiff, defendant appeals. — Affirmed.
YEAMAN & YEAMAN, BENJAMIN D. WARFIELD and CHAS. H. MOORMAN for appellant.
MONTGOMERY MERRITT and W. P. McCLAIN for appellee.
The appellant company delivered to the Henderson Tobacco Extract Company at its factory one of its cars loaded with coke. The car was loaded at a mine on the line of the railroad company, and carried from there by it on its line of railroad to Henderson, its destination, and was placed by it on a switch owned by the railroad company that ran from the line of the railroad to the factory to be unloaded. A short while after the car was placed at the factory the appellee, Freppon, an employe of the extract company, in attempting to open the car door for the purpose of getting the coke out, was severely injured by the falling of the door upon him. To recover damages for the injuries thus sustained he brought this action, and the jury assessed the damages at $2,700. The company in asking a reversal of the judgment entered upon the verdict insist, first, that the petition was defective; second, that the injuries were the result of his own negligence; and, third, that the recovery was excessive.
It is argued that the petition is defective because it fails to aver (1) that the company knew of the defect in the car door, or by the exercise of ordinary care could have known it; (2) that Freppon did not know of the defect, and by the exercise of ordinary care could not have known it; and (3) because it does not contain any averment showing that the company owed a duty to Freppon that would make it liable to respond in damages to him for any injuries received.
The action is not based upon the assumption that the relation of master and servant existed between the company and Freppon, but proceeds on the theory that the railroad company was under a duty to have the car in reasonably safe condition, and that he was injured by its negligence in having and permitting the door of the car to be and remain out of repair and in a dangerous condition. It is only in actions by a servant against his master to recover damages growing out of negligence in respect to the failure of the master to perform some duty owing to the servant that it is necessary to aver that the master knew, or by the exercise of ordinary care could have known, of the defects in the appliances or premises that caused the injury, and that the servant did not known, and could not by the exercise of ordinary care have known, of such defects. The necessity for an averment like this in actions by the servant against the master grows out of the fact that, generally speaking, the servant assumes the ordinary risks of the employment, and can not maintain an action for injuries sustained by a breach of a duty on the part of the master, unless the master knew, or by the exercise of ordinary care could have known, of the unsafe appliances or place that brought about the injury, and the servant did not know and by the exercise of ordinary care could not have discovered the danger. But Freppon was not a servant of the railroad company; and so it is not necessary to further consider this phase of the argument of counsel, or the line of authorities fixing and defining the relative duties of master and servant. As the rule of pleading noticed has no application to an action brought by a person not a servant, and there is no other reason for holding the petition defective, it must be held to state a good cause of action.
It is, however, earnestly insisted that the company owed no duty whatever to Freppon, and therefore was not responsible to him in damages for an injury sustained by reason of the defective condition of its car, however negligent it may have been in failing to discover and repair the defect. This argument is put by counsel upon the ground that Freppon at the time he was injured was not in the employment of the railroad company or performing any service for it, but was an employe of the extract company, to which the car had been delivered for the purpose of unloading; and that, as there was no contractual relation existing between Freppon and the railroad company, it was under no obligation to furnish him safe appliances or a safe place in which to work for the extract company. This feature of the case presents an interesting legal question that in the light of the authorities we will endeavor to dispose of in harmony with the principles of law prevailing in this state and applicable to the matter in hand. In order that there may be no confusion or misunderstanding as to the issue, we will state the pertinent facts concerning which there appears to be no conflict in the testimony.
First. The car by which Freppon was injured was owned and used by the railroad company, and was placed by it on the switch only for the purpose of being unloaded.
Second. The extract company had no control over the disposition or movement of the car, or anything to do with it, except to unload it at the place where it was placed by the railroad company.
Third. Freppon was not in any capacity a servant of the railroad company. He was an employe of the extract company, and as such undertook for it to assist in unloading the car.
Fourth. The car door that fell upon him was in an unsafe and dangerous condition when it was placed at the unloading point by the railroad company, and its defective condition was at that time known to the employes of the railroad company.
So that upon these facts, the question may be thus stated: Is a common carrier under a duty to maintain its cars in a reasonably safe condition when they have been placed by it in the course of its business at a point for the purpose of being loaded or unloaded, and therefore liable to respond in damages for a failure to perform this duty to a person not an employe of the railroad company, but who is engaged in loading or unloading the car as the servant of the person for whose use the car has been so placed? Or is the common carrier when it places the car at the disposal of the consignee or consignor for the purpose of being unloaded or loaded relieved from all obligation to have the car at the time it is so placed in a reasonably safe condition for the purpose for which it is to be used, and free from liability for injuries received by the consignee or consignor or their servants while loading or unloading the car? If the railroad company owed no duty to Freppon under the circumstances stated, it is plain that the verdict in his behalf should be set aside and the action dismissed but we do not agree with counsel for the railroad company that a common carrier is relieved from the obligation of keeping its cars reasonably safe during the time they are being loaded or unloaded merely because during such time they are under the control of the persons loading or unloading them, at least in so far as it may be necessary to perform this service. When a carrier delivers a car to a consignor to be loaded, or a consignee to be unloaded, it must have the car in a reasonably safe condition for the purpose for which it is intended to be used. In the absence of an express agreement, the law will raise an implied contract to this effect, and, under and by virtue of this implied contract, a recovery for a breach of it may be had by any person injured while engaged in loading or unloading the car and exercising ordinary care for his own safety.
The duties and obligations of a common carrier to the public are not suspended during the time that its cars are being used by its patrons for purposes of loading or unloading. When it delivers a car for this purpose and invites its customers to use it, it undertakes that the car is in a reasonably safe condition to be used for the purpose intended. There is no sort of doubt about the proposition that a carrier must keep its depot grounds and premises in reasonably safe condition for use by persons having...
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