Nashville, C. & St. L. Ry. Co. v. Myers

• Decision Date: 21 February 1917
• Citation: 192 S.W. 168,137 Tenn. 142
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. MYERS.
• Court: Tennessee Supreme Court

192 S.W. 168

137 Tenn. 142

NASHVILLE, C. & ST. L. RY. CO. v. MYERS.

Supreme Court of Tennessee.

February 21, 1917

Appeal from Circuit Court, Franklin County; Frank L. Lynch, Judge.

Action by G. C. Myers against the Nashville, Chattanooga & St. Louis Railway Company. From a judgment of the Court of Civil Appeals, affirming judgment for plaintiff, defendant appeals. Reversed, and suit dismissed.

LANSDEN J.

This is an action for personal injuries brought by Myers against the railway company. Myers was an employé of the mill company and as such it was his duty to load flour into the cars of the railway company. The mill company had received a carload of wheat which was placed by the railway company upon an unloading track and it was unloaded by the mill company. Later the railway company placed the same car upon the loading track of the mill company, which ran near to the mill building. The plaintiff below, under orders of his employer together with other servants, loaded the car with flour to be shipped over the line of the defendant railway company to customers elsewhere. After this was done, he attempted to close the door in the ordinary way. The door was suspended upon a track, and was intended to slide upon the track so as to close the opening in the side of the car. Its fastenings were insecure, and when Myers attempted to close it, it fell upon him and broke his leg.

He brought this suit against the railway company, and after averring the facts above stated, it was averred that plaintiff's injuries were caused by the negligence of the railway company in allowing the car to become and remain in a broken condition, which condition ought to have been known by it in the exercise of ordinary care. The railway company pleaded not guilty, and in the proof set up the following rule as explaining and excusing the condition of the car:

"Effective Monday February 23d, all cars that are to be loaded with articles that are liable to damage account of leaky roof or defect in car must first be examined by our car inspector, Mr. J. G. Sargent. If car is found to be in good condition he will place under the number of car inspection certificate form number 767 which must be detached from car and presented to me with bill of lading, as under the ruling I am prohibited from signing bill of lading unless this card is presented to me properly filled in and signed by Mr. Sargent.

This ruling has recently been made by the company to avoid claims account of shipments being loaded in defective equipment.

Mr. Sargent will accompany the switch engine every morning and inspect all cars in hand with you, if at any time during the day you wish to load a car that has not been inspected notify this office and we will arrange for Mr. Sargent to make inspection with as little delay as possible."

It is also shown without dispute that it was the practice at Tullahoma, under the foregoing rule, for an inspector of the defendant railway company to inspect cars anywhere on the yard wherever they were found. The facts averred in the declaration and stated above with respect to the accident and injury are also undisputed. The agent of the railway did not know that the car was being loaded by the mill company, and the mill company did not make application, under the rule, for inspection. The plaintiff was an employé of the mill company and not of the railway company, and did not know of the existence of the rule.

There were verdict and judgment for the plaintiff in the sum of $500, and this judgment, upon appeal, was affirmed by the Court of Civil Appeals.

That court was of opinion that the railway company is liable to plaintiff for two reasons: First, that placing the car upon the loading track of the mill company was an implied invitation to the plaintiff to load the car, and if he was injured by a defective condition of the car, the railway company would be liable to him for injuries sustained because of such defective condition; second, it was of opinion that the rule promulgated was not intended by the railway company to prevent the character of accident and injury which occurred, and therefore the violation of the rule by the mill company is not a defense to the railway company's liability.

The assignments of error in this court present the general question of the liability of the carrier for accidents of this nature when the shipper is acting in violation of the rule.

We think there is no doubt but what the railway company was bound to exercise ordinary care to avoid injuring the plaintiff while loading the car, other questions out of the way. Plaintiff was not a trespasser, nor a...