Norfolk and Western Ry. Co. v. Anderson's-Black Rock, Inc., 9869.

• Citation: 350 F.2d 917
• Decision Date: 17 September 1965
• Docket Number: No. 9869.,9869.
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY, Appellant, v. ANDERSON'S-BLACK ROCK, INC., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

350 F.2d 917 (1965)

NORFOLK AND WESTERN RAILWAY COMPANY, Appellant, v. ANDERSON'S-BLACK ROCK, INC., Appellee.

No. 9869.

United States Court of Appeals Fourth Circuit.

Argued May 5, 1965.

Decided September 17, 1965.

Zane Grey Staker, Williamson, W. Va. (W. Graham Smith, Jr., and Slaven & Staker, Williamson, W. Va., on brief), for appellant.

Edwin W. Conley, Huntington, W. Va. (Huddleston & Bolen, Huntington, W. Va., on brief), for appellee.

Before BRYAN and BELL, Circuit Judges, and LEWIS, District Judge.

OREN R. LEWIS, District Judge:

The original plaintiff, Franklin D. R. Halstead, an employee of Anderson's-Black Rock, Inc., received $20,000.00¹ from the Norfolk and Western Railway Company after instituting a tort action in which he alleged that he lost an arm by reason of Norfolk and Western's simple negligence in that: one, Norfolk and Western altered a gondola by welding some braces or angle irons on the inside walls; two, Norfolk and Western allowed that car to be loaded with limestone to a height concealing the angle iron; and three, Norfolk and Western did not warn him of the presence of the hidden angle irons; so that as he was assisting in unloading that car, his accident occurred. Norfolk and Western's answer admitted the allegations but denied negligence. A co-defendant, John W. Lowe, was dismissed from the case on motion of the plaintiff.

By third-party action against Black Rock Norfolk and Western seeks reimbursement of the $20,000.00 paid Halstead via indemnity.

The contract relied upon by Norfolk and Western consisted of a standard form of bill of lading and certain tariff rules and regulations applicable thereto, all on file and approved by the Interstate Commerce Commission and contained in Uniform Freight Classification 5 — specifically, Rule Number 27, Section 1 — which reads as follows:

"Owners are required to load into or on cars, freight for forwarding by rail carriers, and to unload from cars freight received by rail carriers, carried at CL ratings or rates, except where tariff of carrier at point of origin or destination or stopover station (as the case may be) provides for loading or unloading of CL freight by carrier."

Black Rock in its answer admitted its employees, including Halstead, unloaded the car and that Halstead was injured while so doing, but denied liability to Norfolk and Western by reason of any matter concerned with the accident, and further, pleaded as affirmative defenses that: (one) the third-party complaint failed to state a claim upon which relief could be granted, and (two) that it was shielded from liability to the Railway Company by virtue of the exclusive liability provisions of the West Virginia Workmen's Compensation Act.²

Black Rock in its motion for summary judgment admitted that its negligence in unloading the car was a proximate cause of Halstead's injury. There being no factual differences, the District Court granted the defendant's motion and dismissed the third-party complaint.

Norfolk and Western seeks reversal upon the ground it was deprived of a trial on the merits. Had it been granted a trial, the Railway says, it would have adduced evidence that Black Rock negligently unloaded the limestone with their clamshell shovel and would have put in evidence the bill of lading under which the shipment moved.

This argument is without merit. Black Rock in its motion for summary judgment admitted that its negligence in unloading the car was a proximate cause of Halstead's injuries, and the introduction of the bill of lading would not have added anything to the record.³ It could only have shown that the shipment of limestone was moved subject to the tariffs in effect and regulations applicable thereto, namely, Rule Number 27, Section 1. This was disclosed by the Railway in its answer to interrogatories.

There being no...