Parker v. Seaboard Coastline R.R.

• Decision Date: 01 May 1978
• Docket Number: No. 77-1090,77-1090
• Citation: 573 F.2d 1004
• Parties: Glendon PARKER, Administrator of the Estate of Donald Wayne Parker, Deceased, and Raymond Moore, Administrator of the Estate of Albert Jacob Moore, Deceased, Appellants, v. SEABOARD COASTLINE RAILROAD and ACF Industries, Inc., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1004

573 F.2d 1004

Glendon PARKER, Administrator of the Estate of Donald Wayne

Parker, Deceased, and Raymond Moore, Administrator of the Estate of Albert Jacob Moore, Deceased, Appellants, v. SEABOARD COASTLINE RAILROAD and ACF Industries, Inc., Appellees.

No. 77-1090.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 16, 1977.

Decided April 4, 1978.

Rehearing and Rehearing En Banc Denied May 1, 1978.

Henry Woods of McMath, Leatherman & Woods, Little Rock, Ark., for appellant; Sidney S. McMath, Little Rock, Ark., filed brief.

J. C. Deacon and G. D. Walker, Jonesboro, Ark., for appellee.

Before MATTHES, Senior Circuit Judge, STEPHENSON, Circuit Judge, and WANGELIN, ^* District Judge.

STEPHENSON, Circuit Judge.

Appellant-plaintiffs brought two separate actions for wrongful death against ACF Industries, Inc., the manufacturer of a hopper car, and Seaboard Coastline Railroad, the supplier of the hopper car, on theories of negligence and strict liability after plaintiffs' decedents suffocated while unloading the hopper car of fertilizer. The cases were consolidated for trial by jury. At the close of plaintiffs' evidence, the trial court ¹ granted defendants' motions for directed verdicts and dismissed plaintiffs' complaints with prejudice. ² Plaintiffs contend in this appeal that the court erred in directing a verdict and should have submitted to the jury their cause against ACF on the theory that the hopper car was negligently designed, and against Seaboard on the grounds the car was defective so as to be unreasonably dangerous. The thrust of defendants' response is that aside from insufficient proof on negligence and defective condition plaintiffs failed to present proof sufficient to create a jury issue on proximate cause. We reverse and remand for a new trial. ³

Donald Parker, age 18, and Albert Moore, age 16, were found dead in a railroad hopper car at approximately 10:30 a. m. on September 15, 1973, at Hoxie, Arkansas. They were employees of Farm Services, Inc. and at the time were engaged in unloading a fertilizer known as ammonium phosphate, which had been delivered in a hopper car manufactured by defendant ACF and delivered by defendant Seaboard Railroad to Farm Services. The foreman directed the young men to unload the fertilizer from the hopper car by positioning the equipment and opening the unloading gates at the bottom of the hopper. The fertilizer was discharged into an auger device which carried it into the storage shed of Farm Services. Approximately 30 minutes later Parker and Moore reported that the unloading had commenced and in response to the foreman's inquiry indicated they were having no trouble. The foreman had been busy with other duties for about 30 minutes when he noticed the belt conveyor was still running but no fertilizer was coming out. He then undertook to locate Parker and Moore. He climbed on top of the hopper car when they did not respond to his call and noticed that two hatch covers were open and saw the boys lying in the bottom of the car partially covered by fertilizer. Examination disclosed fertilizer in their mouths and noses, and on their skin. Death was determined to have been caused by suffocation.

Plaintiffs claim ACF, the hopper car manufacturer, was negligent in designing and constructing the hopper car without protective grates or meshes on the hatches, without adequate ladders or means of escape from within the car, and without conspicuous and legible warnings of the hazards involved in working in and about the hopper car to persons such as decedents. It was plaintiffs' theory that decedents in furtherance of their duties, either fell or entered down into the hopper car where they were trapped. As no means of escape had been provided, they suffocated. Plaintiffs contend that it was foreseeable to the manufacturer that persons such as decedents would become floundered in the manner just described, ⁴ and such negligence was a proximate cause of plaintiffs' damages. ACF denies it was negligent and further denies that its negligence, if any, was the proximate cause of plaintiffs' damages.

Plaintiffs claim Seaboard supplied the hopper car involved in a defective condition which rendered it unreasonably dangerous, and that the defective condition was a proximate cause of plaintiffs' damages. The defects alleged are similar to those set out in plaintiffs' negligence claim against ACF. Seaboard denies liability on the basis it was not a supplier of the car under Arkansas' strict liability in tort statute, Ark.Stat.Ann. § 85-2-318.2 (Supp.1975). It denies that the car was defective in any respect, and further claims that a defect, if any existed, was not a proximate cause of plaintiffs' damages.

As previously indicated, both defendants contend that plaintiffs failed to present proof sufficient to create a submissible issue on proximate cause and the trial court therefore properly directed a verdict in favor of defendants at the close of plaintiffs' evidence. It is our view that this contention is the closest issue on this appeal, and therefore our discussion with reference to alleged negligence and defects in the hopper car will be limited to that necessary to place the proximate cause issues in proper focus.

In determining whether the trial court erred in granting a directed verdict we must review the record under well established principles that it should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the non-moving party. The evidence together with all reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. It should not be granted unless the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion. Lisa-Jet, Inc. v. Duncan Aviation, Inc., 569 F.2d 1044 (8th Cir. 1978); Barclay v. Burlington Northern, Inc., 536 F.2d 263, 267 (8th Cir. 1976); Hernon v. Revere Copper & Brass, Inc., 494 F.2d 705, 709 (8th Cir.), cert. denied, 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974). The parties agree that the foregoing substantial evidence test of the federal courts is essentially the same as that of the Arkansas courts. See Marshall v. Humble Oil & Refining Co., 459 F.2d 355 (8th Cir. 1972).

The covered hopper car consisted of two completely separate hoppers, each hopper having four hatchways located on top of the car for loading purposes. They could also be used as a means for entering and leaving the interior of the car. However, only one of the four hatchways was equipped with an interior ladder. This ladder consisted of three rungs attached to the inside wall of the hopper. The space between the rungs was about 16 or 18 inches. There were two unloading gates separated by a partition about three feet high at the bottom of the hopper. The distance from the bottom of the hopper to the opening of the hatchway was about 12 feet.

On some occasions employees of Farm Services had gone into the hopper with a pick or hoe to dislodge fertilizer in order that it would flow through the unloading gate. One employee testified that decedent Moore had been with him inside the car for this purpose and the fertilizer (a different type white urea) caved in on them up to their waists and they reached up with the pick and hoe to grab the ladder in order to get out. Farm Services officials testified that all employees, including decedents, were instructed not to go in the hopper without getting someone from the office to supervise. Some employees testified they never received such instructions. When the bodies were removed, no pick, hoe, prod or auxiliary ladder was found inside the hopper or on the hopper car. The hatch door above the only interior ladder was locked from the outside. There was testimony by Farm Services' foreman that this fertilizer was free-flowing and not the type that would stick. However, the fire chief testified that at the time the bodies were removed he noted fertilizer was sticking to the sides of the bin.

Plaintiffs introduced evidence that the hatchways were sometimes opened by workers who unloaded the cars so they could see how close the compartment was to being empty. It was sometimes necessary to open two hatchways because the angle of light was such that it was too dark to see inside the compartment. The morning of the accident the foreman opened one of the hatches for the purpose of confirming the type of fertilizer shipped. In summary, taking the evidence most favorable to plaintiffs, it was reasonably foreseeable that loading and unloading personnel would have occasion to climb on and enter into the hoppers.

Plaintiffs offered expert testimony that the hopper car had been negligently designed and for safety purposes was defective in the following respects: (1) On top of the hopper there were too many hatches with large open areas through which one could accidentally fall. There should at least have been a grill or grating over the hatchway entrance when the hatches were open. (2) There were no warnings on the hopper or hopper hatches to indicate the absence of an interior ladder where none existed, or warnings as to hazards including commodity cave-in, suffocation, and entrapment. ⁵ (3) There should have been two ladders in each hopper to provide adequate egress from the hopper in case of accidental fall into the car or need for escape purposes, and two more rungs on each ladder so as to place the ladders within reach of one standing on the bottom of the car. Since the hopper car in the present case was not equipped with such safety features, plaintiffs' expert opined that its design was negligent and defective so as to be unreasonably dangerous.

With respect to the issues of negligence and defective product, defendants, through cross-examination of plaintiffs' witnesses, offered evidence that: the design of the hopper car was...