New Amsterdam Casualty Co. v. Novick Transfer Co.

• Decision Date: 06 January 1960
• Docket Number: No. 7957.,7957.
• Citation: 274 F.2d 916
• Parties: NEW AMSTERDAM CASUALTY COMPANY, Appellant, v. NOVICK TRANSFER COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

274 F.2d 916 (1960)

NEW AMSTERDAM CASUALTY COMPANY, Appellant, v. NOVICK TRANSFER COMPANY, Inc., Appellee.

No. 7957.

United States Court of Appeals Fourth Circuit.

Argued November 20, 1959.

Decided January 6, 1960.

Paul F. Due, Baltimore, Md. (Due, Nickerson, Whiteford & Taylor, Baltimore, Md., on brief) for appellant.

Frederick J. Green, Jr., and Melvin J. Sykes, Baltimore, Md., for appellee.

Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

This is an action for contribution brought by New Amsterdam Casualty Company (hereinafter referred to as "New Amsterdam") as subrogee of certain parties trading as E. A. Gallagher & Sons (hereinafter referred to as "Gallagher"), William W. Sechrist and Buster Miller against Novick Transportation Company, Inc. (hereinafter referred to as "Novick") as an alleged joint tort-feasor. The case was tried before a jury and, from a judgment entered upon a verdict in favor of Novick, New Amsterdam appeals.

New Amsterdam insured a tractor-trailer which was, on November 21, 1955, driven by William W. Sechrist, owned by Buster Miller, and being used to haul a heavy load of flat steel in interstate commerce for Gallagher on U. S. Route 40 near State Route 72 in the State of Maryland. It was traveling in a generally northeasterly direction. At the same time and place, Harold Dyke was driving his own tractor in the same direction, hauling steel rods, bars or rails for Novick in interstate commerce in a trailer owned by Novick, an I. C. C. carrier, under a lease agreement between Dyke and Novick.

Shortly before five o'clock in the morning, and in darkness, an accident occurred in which Dyke sustained severe and permanent personal injuries. The highway at that point consisted of two divided paved surfaces with two traffic lanes in each direction, the right or outside lane of each division of the highway being referred to as the "slow lane", and the left or inside lane of each division being described as the "fast lane".

The pieces of steel being transported in the Novick trailer were manufactured by Cumberland Steel Company and were loaded in the trailer by the manufacturer in Cumberland, Maryland. The surface of the steel was delicately textured with a highly polished finish and special equipment was used in the loading process to prevent damage. The rods or rails were covered with a greasy substance, described as similar to "vaseline", to protect the surfaces from moisture and other damage. The Novick trailer load consisted of 252 pieces of "cold finished bars" running from 1¼ to 2 1/16 inches in diameter, from 20 to 24 feet in length and weighing about 16½ tons. After the loading was completed, the trailer was taken to the Novick Terminal at Cumberland for inspection by Novick employees. The sides and ends of the body of the trailer were of steel construction. After inspection, a canvas covering was placed over the top of the trailer and a seal of some sort was placed in position so that further inspection was impossible without breaking the seal. The trailer was then hauled to the Novick Terminal at Winchester, Virginia, where it was picked up by Dyke with his tractor on the night of November 20 for transportation to its ultimate destination.

The tractor, which was described as a "cab-over-engine" type, provided the motive power and was attached to the trailer by an appropriate coupling device, leaving a space between the front end or wall of the trailer and the rear of the driver's cab of the tractor. The brakes on both the tractor and trailer were operated and controlled from the tractor cab.

The evidence is conflicting as to some of the circumstances of the accident. It was testified that Dyke, driving in the slow lane, suddenly attempted to avoid a collision with some object (almost indiscernible but apparently the Gallagher tractor-trailer) in the same lane, applied the full power of his tractor and trailer brakes and swerved to his left. It is clear that the load of steel rods went hurtling through the front end of the trailer and through the tractor cab, carrying Dyke and the cab with it. Dyke, portions of the cab and the steel rods were thrown to the fast lane of the highway some thirty or forty feet ahead of the Dyke tractor and alongside the Gallagher tractor-trailer outfit in and on the slow lane of the highway. Following the accident, Dyke was hospitalized and his left leg was amputated below the knee. The evidence was conflicting as to whether, at the time of the accident, the Gallagher tractor-trailer was moving or stationary, whether its lights were on or off, and whether there was a collision between the front of the Dyke tractor and the rear of the Gallagher trailer.

On January 2, 1957, Dyke brought action in the U. S. District Court for the District of Maryland against Gallagher, Sechrist and Miller. He alleged that his injuries were due to negligence in that the Gallagher tractor-trailer, with which his tractor collided, was standing on the highway, without lights, in the dark hours of the early morning. Gallagher attempted to implead Novick as a third-party defendant on the ground that the accident was due, in part, to the negligence of Novick in loading its trailer in such manner that the trailer's cargo of steel shifted its weight and penetrated the cab of the tractor, thus contributing to Dyke's injuries. The trial court denied the right to implead Novick but without prejudice to Gallagher's right to later seek contribution. Gallagher appealed to this court but the appeal was dismissed as premature. Sechrist v. Dyke, 4 Cir., 1958, 256 F.2d 881.

Thereafter, New Amsterdam, Gallagher's liability insurer, settled with Dyke for $43,000, took from Dyke a release which forever released Gallagher, Sechrist, Miller, Novick "and any and all other persons, firms and corporations who may be joint tort feasors" from claims for damages growing out of the accident, and brought this action for contribution against Novick as a joint tortfeasor under the Uniform Contribution among Tort-Feasors Act, Art. 50, §§ 16-24, Annotated Code of Maryland (1957 Edition), and particularly Section 17 thereof.¹

New Amsterdam's complaint contains two counts. The first alleges that Dyke's injuries were caused in part by the negligence of Sechrist in stopping the Gallagher trailer on the highway without lights, and in part by the negligence of Novick in failing to provide protection against shifting of the cargo of steel "rails" carried in the Novick trailer, as required by Sec. 193.85 of the Interstate Commerce Commission Regulations (49 C. F. R. 193.85)² applicable to motor carriers. In this count it was charged that, under said regulation, Novick was required, "in the carriage of cargo such as steel rails, which would be likely to penetrate or crush the driver's compartment upon rapid deceleration or accident, to have the load securely fastened or braced and to provide the trailer involved with header boards or similar devices of sufficient strength to prevent such shifting and penetration by the cargo."

The second count alleges substantially the same facts except that Novick's negligence is asserted by way of breach of Novick's common law duty of due care toward Dyke to load the cargo in a safe and secure manner and, "in addition, Defendant Novick owed Dyke the duty to construct or equip said trailer with adequate cargo fastening devices, so that the load would not penetrate the cargo compartment wall when subjected to maximum braking deceleration of which the vehicle is capable."

Both counts allege that, when Dyke applied his brakes, the steel rails penetrated the trailer wall, penetrated, crushed and carried away the driver's compartment (and Dyke himself), depriving him of all control of the tractor-trailer; and that the shifting of the cargo "immediately upon the application of his brakes" caused Dyke to lose control, which loss of control "contributed to the happening of said accident". There is no direct and affirmative allegation in either count that there was a collision between Dyke's tractor and the Gallagher trailer, although there is a recital in each count that Dyke, in his earlier action against Sechrist, Miller and Gallagher, alleged such a collision.

The regulation (49 C. F. R. 193.85) mentioned in the first count, and upon which New Amsterdam greatly relies, was issued by the Interstate Commerce Commission pursuant to authority granted to it by 49 U.S.C.A. § 304 and is one of a series of regulations pertaining to the transportation by motor carriers of goods in interstate commerce. These regulations have been in effect since June 1, 1952, and must be complied with by all motor carriers (49 C.F.R. 193.1). Having been made in pursuance of constitutional statutory authority, they have the same force as though prescribed in terms by the statute. Atchison, T. & S. F. R. Co. v. Scarlett, 1937, 300 U.S. 471-474, 57 S.Ct. 541, 81 L.Ed. 748; Interstate Motor Lines, Inc. v. Great Western Ry. Co., 10 Cir., 1947, 161 F.2d 968.

New Amsterdam offered in evidence the regulation here involved and the trial judge, after first expressing some doubt as to its admissibility and after some delay, permitted it to be introduced before the jury. There was evidence that, at the time of the accident, the Gallagher tractor-trailer was standing in the slow lane of the highway, without lights, and that the tractor driven by Dyke collided with the rear of the Gallagher trailer immediately before the load of steel rods crashed from the Novick trailer, through the tractor cab and onto the highway. Sechrist testified that the Gallagher tractor-trailer outfit, which he was driving, was in motion at the time of the accident and that there was no collision, although the testimony of other apparently disinterested witnesses tended to contradict him and to corroborate other testimony as to collision. Sechrist testified also that, following the...