Penn Central Transp. Co. v. Skaggs

• Decision Date: 06 October 1972
• Citation: 489 S.W.2d 26
• Parties: PENN CENTRAL TRANSPORTATION COMPANY and Community Grain Company, Inc., Appellants, v. Coakley D. SKAGGS, Appellee. Coakley D. SKAGGS, Cross-Appellant, v. PENN CENTRAL TRANSPORTATION COMPANY, Cross-Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 26

489 S.W.2d 26

PENN CENTRAL TRANSPORTATION COMPANY and Community Grain

Company, Inc., Appellants, v. Coakley D. SKAGGS, Appellee.

Coakley D. SKAGGS, Cross-Appellant, v. PENN CENTRAL TRANSPORTATION COMPANY, Cross-Appellee.

Court of Appeals of Kentucky.

Oct. 6, 1972.

Rehearing Denied Feb. 2, 1973.

Lively M. Wilson, Stites & McElwain, Galen J. White, Jr., R. Lee Blackwell, Tarrant, Combs, Blackwell & Bullitt, Louisville, for appellants and cross-appellees.

Frederick C. Dolt, Leibson, Dolt & McCarthy, James H. Polsgrove, Louisville, for appellee and cross-appellant.

PALMORE, Justice.

Penn Central Transportation Company (hereinafter Penn Central) furnished a boxcar to Community Grain Company, Inc. (hereinafter Community) for the purpose of shipping grain. Community loaded it with corn and sent it to Schenley Distillers, Inc. (hereinafter Schenley). While unloading the car, Coakley D. Skaggs, an employe of Schenley, was injured. He sued Penn Central and Community on the theory that his injury resulted from a defective condition of the car. The jury returned a nine-man verdict for $95,000 assessed against the two defendants equally. While motions for judgment n.o.v. or new trial were pending Skaggs filed a remittitur of $20,000 and a substituted judgment for $75,000 was entered. (A combined trial order and judgment had been entered five days after the verdict.) All of the parties, including Skaggs, appeal from this judgment.

The alleged defect in the boxcar consisted of one or more large nails, spikes or bolts protruding from the floor. Skaggs and a fellow-employe named Myers were removing the loose corn by running heavy two-wheeled grain scoops along the floor under it. As Skaggs shoved his scoop under the corn it caught against one of these nails, spikes or bolts, causing him to be thrown forward and tumbled over the handle of the scoop. According to evidence which the jury was authorized to believe, he sustained a disc injury in the lumbar area of his spine and became disabled to the degree that in the absence of successful corrective surgery he never again could have engaged in heavy manual labor or strenuous physical activity. Eventual prospects of performing that surgery were frustrated by a gunshot wound which left him paralyzed from the neck down.

Each of the defendants, Penn Central and Community, contends that the evidence was not sufficient to support a verdict against it. They contend also that the instructions were erroneous, the amount of the verdict was excessive, and the trial Court erred in excluding certain evidence bearing upon Skaggs' earning power.

For the reasons hereinafter stated we are of the opinion that the award must be set aside as excessive, but that there was no prejudicial error justifying a reversal on any other ground. Hence a new trial may be confined to the issue of damages.

Penn Central had the duty of exercising ordinary care to furnish the shipper, Community, a car that was in reasonably safe condition for its intended use. Louisville & N.R. Co. v. Powers, Ky., 255 S.W.2d 646 (1953). This duty extended to Community's consignee, Schenley, and Schenley's employe Skaggs. Louisville & N.R. Co. v. Freppon, 134 Ky. 650, 121 S.W. 454 (1909).

Community, the shipper, in undertaking to load the shipment had the duty of exercising ordinary care to do so in such a manner that employes of the consignee (or, for that matter, any other persons entitled to unload the car) exercising ordinary care for their own safety would not be injured in unloading the car. 13 Am.Jur.2d Carriers § 320; Annotation, 'Shipper's liability to consignee or his employe injured while unloading car because of improper loading,' 35 A.L.R.2d 609.

Our own research on the subject has not turned up any satisfactory discussion of what duties a shipper who loads the car owes toward those who unload it with respect to its physical condition. However, Community concedes that it had the duty of exercising ordinary care 'to inspect and load the car,' and in Louisville & N.R. Co. v. Powers, Ky., 255 S.W.2d 646, 649 (1953), it was held proper to submit (to the jury) the question of a shipper's negligence 'concerning its inspection and loading' of defective freight cars. Until further enlightened, we assume that the general duty of ordinary care in safe loading embraces the specific duty of a reasonable inspection to discover and eliminate (or warn against) any physical defect in the car itself that presents a foreseeable cause of injury to persons unloading it in a normal and customary manner.

The sufficiency of the evidence, then, is to be weighed in terms of these duties.

The railroad car was inspected by Penn Central at Indianapolis, Indiana, on March 24, 1967, and delivered to Community at Edinburg, Indiana, on March 29, 1967. It was thereafter inspected by Community and loaded on April 11, 1967. The accident took place at Louisville, Kentucky, on April 17, 1967.

Evidence for Penn Central was that when its cars are returned from customers they frequently have nails and spikes which must be and are removed before the cars are sent out for use by other customers. All debris is picked up and the cars are thoroughly swept out. This procedure was followed with respect to the car in question.

Evidence for Community was that each car received for loading is carefully inspected, coopered and swept out. Holes through which grain may escape are patched with tin held in place by flat-headed roofing nails. No large nails or stud bolts are used. If nails, spikes or bolts are discovered in the floor they are driven in or cut off flush with the surface. Again, as in the instance of Penn Central, this procedure was followed with respect to the car in question.

' reasonable probability is all that is required of evidence in order to support a (verdict).' Coleman v. Baker, Ky., 382 S.W.2d 843, 847--848 (1964). If it fairly appears that one theory is more probably correct than another, though both be consistent with the evidence, a jury may so conclude. Ibid.

Except for the testimony of a fellow-employe of Skaggs to the effect that the nails or spikes looked to him as though they had 'worked up' through a seam in the floor, it is obvious that they were in place and protruding from the floor of the car when it left Edinburg for Louisville. Since there was no occasion for Community to use large nails or spikes, whereas they are frequently found in cars upon their return to Penn Central, it seems such more likely that those which caused the injury in this case were in the car before it was delivered to Community than it is that they were put in the car afterward.

On the evidence as a whole we are of the opinion that it was reasonable for the jury to conclude that the nails or spikes had been driven into the floor of the car as against the possibility that they had 'worked up' through a seam. Once that conclusion is reached, it follows that they were there when the car left Edinburg. If Community's evidence is believed, they were not put there by Community. No one else had any reason to put them there while the car was at Community's siding. The greater probability is that they were there when Community received the car from Penn Central. If so, and if they were discoverable by the exercise of ordinary care on the part of either Penn Central or Community, then both Penn Central and Community were negligent, Penn Central because it failed to exercise ordinary care to furnish a car that was in reasonably safe condition for its intended use and Community because in loading the car without having discovered and eliminated the defect it concurred in exposing those who would eventually unload the car to an unreasonable risk of harm. We conclude that the evidence sustained a verdict against both defendants on this basis.

Penn Central argues that there is no evidence that it had any knowledge of the manner in which the car would be unloaded. The fact, however, that the railroad company has an established procedure for the discovery and removal of the very type of hazard that produced the injury to Skaggs is an implicit suggestion of its foreseeability. We do not hold that precautions actually taken by a party are to be regarded as a criterion of its duties. Cf. Hargadon v. Louisville & N.R. Co., Ky., 375 S.W.2d 834, 839 (1964); Louisville & N.R. Co. v. Stidham's Adm'x, 187 Ky 139, 218 S.W. 460, 461 (1920). Nevertheless, there can be circumstances...