McCurdy v. Union Pac. R. Co.

• Decision Date: 21 April 1966
• Docket Number: No. 37788,37788
• Parties: Wells B. McCURDY, Respondent, v. UNION PACIFIC RAILROAD COMPANY, Northern Pacific Railway Company, Appellants, Chicago, Wilwaukee, St. Paul & Pacific Railroad Company, Great Northern Railway Company, Defendants.
• Court: Washington Supreme Court

Page 457

68 Wn.2d 457

413 P.2d 617

Wells B. McCURDY, Respondent, v. UNION PACIFIC RAILROAD COMPANY, Northern Pacific Railway

Company, Appellants,

Chicago, Wilwaukee, St. Paul & Pacific Railroad Company,

Great Northern Railway Company, Defendants.

No. 37788.

Supreme Court of Washington, Department 1.

April 21, 1966.

Rehearing Denied Aug. 31, 1966.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Frederick V. Betts, James M. Lindsey, Jr., Seattle, for Union Pacific R.R.

Dean H. Eastman, Robert J. Allerdice, Seattle, for Northern Pacific Railway.

Hullin, Ehrlichman, Carroll & Roberts, John D. Ehrlichman, Seattle, for respondent.

COCHRAN, Judge. ^*

In November of 1959, respondent read a newspaper article about a private railroad car named the 'Spokane.' Respondent was interested in the car for his own business and pleasure and, as a result, telephoned Otto Gray in Portland, Oregon, the then owner of the 'Spokane,' to inquire about its purchase. Mr. Gray offered to sell the car for $2,500, and respondent immediately accepted the offer, sight unseen. This was within 2 months after Gray had made his purchase. This car, which had been originally built in 1909, had a living room, dining room, bedrooms and baths. The car had been rebuilt in 1927 and a new heating system was installed. In 1957, it had been refurbished.

The car had been purchased by Gray from the Spokane International Railroad, an almost wholly owned subsidiary of Union Pacific Railroad Company. In addition, Mr. Gray is the brother of Omar Gray, claims agent for the Union Pacific.

A Mr. Wallen, master mechanic of the Spokane International, had kept the car in condition for immediate use at all times. However, in 1954, in attempting to repair the independent auxiliary hot water heating plant, he found the circulating pipes so corroded that the heater was no longer used. The primary heating source for the car was a steam vapor circulating system, the steam being obtained from a locomotive or a stationary source. Mr. Wallen became concerned about this system as well and, as a result, would not permit more than 5 pounds of steam to be introduced into the car. This was accomplished by means of a reducing valve set for 5 pounds maximum pressure and attached to the station steam line leading to the car.

When respondent purchased the car, it was in Spokane, Washington, where it had been stored indoors except for the last 2 years. Respondent had no notice of the condition of the steam pipes. Mr. Wallen became an employee of the Union Pacific in 1959, when Union Pacific acquired the Spokane International and, with it, the car 'Spokane.' It was the Union Pacific which offered the car for sale at the time it was purchased by Gray. However, Mr. Wallen's department made a survey report indicating that the car was unfit for service.

After respondent purchased the 'Spokane,' he made arrangements to have the car moved from Spokane, Washington, to Seattle, and for that purpose he went to Spokane on January 2, 1960. Respondent had the car inspected by the Great Northern Railway Company prior to bringing it to Seattle. This report noted no defects in the steam heating system or in any other system inspected.

The car was moved from Spokane to Seattle by the Great Northern and was later taken to Tacoma and placed at the Milwaukee Railroad train yards and was kept locked while there. There were three keys to the 'Spokane,' one of which was in the possession of the Milwaukee.

In early March, 1960, respondent asked the Union Pacific to bring some school children to Seattle in the car on March 10th. No other instructions were given by respondent. The Milwaukee was informed and that railroad moved the car to an interchange track where Union Pacific-Northern Pacific joint employees picked it up the afternoon of March 9th. Leonard Jacobsen, a joint employee, went to the 'Spokane' at about 4:20 p.m. of that day for the purpose of putting it on steam. There was no reduction valve and the pressure on the line was about 60 pounds and the steam was 260 degrees Fahrenheit. After turning on the steam, Jacobsen looked in a window from the observation platform and walked around the car and left the area. Returning about 8:00 p.m. to service a passenger train, he noticed steam escaping from a kitchen vent. After servicing the passenger train, Jacobsen got a Mr. Cossins, a special agent, to accompany him to look at the car. Looking into the car, they saw that steam was escaping into it, but no damage was then apparent. They tried the door but, it being locked, and they having no key, could not open it. At that time, the doorknob was cold. The escaping steam was reported to a Mr. Ackley, who was in charge of operations that night and who directed Jacobsen to turn off the incoming steam, which was done at about 8:30 p.m. Ackley said he would see if he could locate a key. Nothing else was done to ventilate the car.

The Union Pacific called and left a message for respondent at his home, and when he arrived home at about 11:00 p.m., he called the Union Pacific and was told to come to Tacoma with a key to the car because of some unspecified problem. When he arrived at the car some time between 12:30 and 1:00 a.m., the car was still closed up and steam was still escaping. The doorknob was so hot it could hardly be touched.

The steam had entered the interior of the car because of a broken steam pipe in the car, located in such a position that it could not be seen by a person walking through the car. Serious damage to the car resulted.

The jury returned a verdict in favor of the respondent in the sum of $56,000 against the appellants, Union Pacific Railroad Company and Northern Pacific Railway Company, and dismissed the Chicago, Milwaukee, St. Paul and Pacific Railroad Company.

The appellants make the following assignments of error:

1. Error in refusing to grant defendants' motion for a directed verdict at the close of plaintiff's case, and again in failing to grant defendants' motion for a directed verdict at the close of all the evidence.

2. Error in denying defendants' post trial motion for judgment notwithstanding the verdict of the jury.

3. Error in denying defendants' motion for a new trial on all issues because the court--

(a) Failed to allow the defendants to have their theory of the case presented to the jury by proper instructions;

(b) Failing to instruct that a carrier is not liable for damages arising from latent defects within a railroad car owned and furnished by the shipper (respondent);

(c) Failing to instruct that a carrier owes only the duty of exercising ordinary care in inspecting a railway car owned and furnished by the shipper (d) Failing to instruct that the owner of a railroad car must exercise reasonable care in inspecting for defects and he impliedly warrants its fitness to the common carrier to whom it is delivered for transportation.

4. Error in giving the court's instruction No. 14 relating to damages.

Assignments of error Nos. 1 and 2 may be disposed of by saying that our examination of the evidence in the record, in the favorable light required, (Gregory v. Shannon, 59 Wash.2d 201, 367 P.2d 152, 29 A.L.R.3d 397; Boyd v. City of Edmonds, 64 Wash.2d 94, 390 P.2d 706) satisfied us that the trial court did not err. Upon the evidence presented, the minds of reasonable men could well differ upon the issue of whether or not appellants were guilty of neglibence in one or more of the manners alleged.

Assignment of error 3(a): It is the opinion of the court that appellants had the opportunity to and did present their theory of the case to the jury. The theory of both parties on the question of liability was grounded upon the duty of the railroads and the duty of the owner.

The duty of a common carrier toward the property of others being transported is summarized in 13 C.J.S. Carriers § 40, at 84, as the duty to exercise such care as is required to protect that property from loss or injury during the transportation. As stated in Conger v. Cordes Towing Service, Inc., 58 Wash.2d 876, 878, 365 P.2d 20, 22: 'A common carrier is charged with the highest degree of care consistent with the trade, in both the maintenance and operation of its vehicles.'

In a correct instruction on the law, the court, in instruction No. 6, said to the jury:

Ordinarily 'negligence' is defined as a failure to exercise reasonable and ordinary care such as an ordinarily careful and prudent person would use under the same circumstances, but in this case the defendants owed plaintiff a greater degree of care. A railroad which carries or moves the property of the public is a common carrier. While not an insurer of the safety of such property, the carrier owes the owner of the property the highest degree of care for the safety of such property from loss or injury during the transportation which is consistent with the practical operation of the railroad.

The car was in transit at the time of the damage. The car was in the course of one movement from the Milwaukee yards in Tacoma to the Union Station in Seattle. The way-stop at the Tacoma station was incidental to that journey.

It will be noted that the court used the words 'consistent with the practical operation of the railroad.' Thus any contention that the appellants could or could not do more than they did and still be able to properly perform the business of operating a railroad was before the jury.

In other instructions, the court instructed the jury on 'proximate cause' so that the jury knew that any negligence of the appellants would have to be shown to have proximately caused the resulting damage.

The conduct of appellants through their employees, both before and after the break in the steam pipe, was in issue.

Appellants' assignments of error 3(b), (c) and (d) will be considered together.

Appellants requested an instruction which reads as follows:

If the defect in the steam pipe in the plaintiff's car was a latent...