Missouri Pac. R. Co. v. Armstrong

• Decision Date: 27 May 1940
• Docket Number: No. 4-5978.,4-5978.
• Parties: MISSOURI PAC. R. CO. et al. v. ARMSTRONG.
• Court: Arkansas Supreme Court

Page 25

141 S.W.2d 25

MISSOURI PAC. R. CO. et al. v. ARMSTRONG.

No. 4-5978.

Supreme Court of Arkansas.

May 27, 1940.

Rehearing Denied June 24, 1940.

Appeal from Circuit Court, Pike County; Minor W. Millwee, Judge.

Suit by Calvin Armstrong against the Missouri Pacific Railroad Company and others for injuries suffered while unloading a coal car. From a judgment on a verdict for plaintiff against named defendant and another, named defendant and another appeal.

Affirmed.

Henry Donham, of Little Rock, and Richard M. Ryan, of Hot Springs, for appellants.

Alfred Featherston, of Murfreesboro, for appellee.

HOLT, Justice.

Appellee, Calvin Armstrong, while unloading a gondola coal car at Murfreesboro, Arkansas, received personal injuries on account of an alleged defect in the floor of the car and sued jointly the Murfreesboro-Nashville Railroad Company, Missouri Pacific Railroad Company and Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, Kansas City Southern Railway Company and the Binkley Coal Company.

A demurrer filed by the Kansas City Southern Railway Company was sustained by the trial court, and appellee dismissed his cause of action against the Binkley Coal Company. The cause proceeded to trial against the remaining railroad companies, the Missouri Pacific and the Murfreesboro-Nashville. A verdict was returned in favor of the Murfreesboro-Nashville Railroad Company but against the Missouri Pacific Railroad Company and Guy Thompson, trustee, in the sum of $2,000.

The negligence charged against the Murfreesboro-Nashville Railroad Company is that appellee, while in its employ, unloading a car of coal, was injured through failure of the railroad company to furnish him a reasonably safe place in which to work.

The negligence charged against the Missouri Pacific Railroad Company and Thompson, as trustee, is that they "negligently and carelessly furnished to the Binkley Coal Company, the original shipper of said car of coal, one (1) Kansas City Southern gondola car Number 27198, without notifying said shipper of the dangerous and unsafe condition of said car and without making any inspection to ascertain the dangerous and unsafe condition of said car".

Appellant denied every material allegation in the complaint, and in addition defended on the ground that appellee's injuries were "due to and brought about by his own fault and carelessness in not watching and looking where he was stepping while working in the car and unloading the same; and in not using ordinary care for his own safety while unloading said coal from said car; in observing said hole and defective condition of said car, which plaintiff well knew was in the floor of said car at the time, and plaintiff's injuries, if any, were due to his own contributory negligence, and same is pleaded as a complete bar and defense to this suit". The evidence is to the following effect:

The Missouri Pacific Railroad Company was the initial carrier. It furnished Binkley Coal Company at Jenny Lind, Arkansas, the gondola coal car in question which belonged to the Kansas City Southern Railway Company. The Murfreesboro-Nashville Railway Company is the consignee and the coal car was delivered to it by the Missouri Pacific Railroad Company at Nashville, Arkansas, and it moved the car over its own track to Murfreesboro, where it placed the car on a siding and employed appellee Armstrong to unload the car at ten cents per ton.

At about eleven a. m. on March 17, 1939, appellee, while shoveling the coal, and after he had finished about half of the work, uncovered a hole in the car floor about an inch and a half to two inches wide and some fourteen inches long. His attention was called to the hole for the first time by bringing a board up on his shovel and then observing the slack coal running through the hole. This board contained two "rusty" nails on each side bent outward. Appellee testified that the board was not nailed down and that he placed it back as he found it and proceeded with his work. Shortly thereafter, while lifting a lump of coal which weighed about 150 pounds, and just as he turned around with this lump of coal in his arms, he stepped into this hole, injuring his leg, and sustained other injuries which resulted in a hernia developing, about the size of a "hen egg". He also had a tooth knocked loose which later had to be extracted.

There is evidence that appellee stepped on the edge of this board covering the hole and that on account of the "rotten" condition of the floor his foot broke through, enlarging the hole.

There was the additional testimony of two other witnesses, Mr. Griffin and Mr. Ferrett, that they saw the board covering the hole at the time the car was loaded at its origin.

Appellee's hernia could probably be corrected by an operation costing about $250.

It is earnestly insisted by appellant that the trial court erred in sending the case to the jury for the reason that no substantial evidence appears upon which to base a verdict. After a careful review of the record, however, we have reached the conclusion that this contention cannot be sustained.

It was the duty of appellant to furnish its shipper with a car in such condition that it could be used with reasonable safety by appellee in unloading same and its failure to exercise ordinary care in this respect would subject it to liability in damages to appellee when damaged by reason of such neglect.

In 22 R.C.L. 932, Sec. 177, the textwriter says: "It is well settled that a common carrier owes a duty to consignors and consignees of goods shipped over its railroad to exercise ordinary care to provide reasonably safe cars, and that it is liable for injuries received...