Reed v. Missouri-K.-T. R. Co.

• Decision Date: 14 May 1951
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 41936,41936
• Citation: 362 Mo. 1,239 S.W.2d 328
• Parties: REED v.R. CO.
• Court: Missouri Supreme Court

Page 328

239 S.W.2d 328

362 Mo. 1

REED v. MISSOURI-KANSAS-TEXAS R. CO.

No. 41936.

Supreme Court of Missouri, En Banc.

May 14, 1951.

Carl S. Hoffman, St. Louis, A. E. Elliott, Nevada, for appellant.

Lynn M. Ewing, Amos Wight, and Ewing, Ewing & Ewing, all of Nevada, for respondent.

WESTHUES, Commissioner.

Respondent, Charles F. Reed, was injured on January 23, 1947, while unloading a carload of electric power line poles in the defendant's railroad yards at Fayette, Missouri. Suit was filed in Vernon County, Missouri, where upon a trial, a jury returned a verdict for plaintiff in the sum of $17, 992.17. From the judgment, the defendant railroad appealed.

The shipment originated at Picayune, Mississippi. The car was loaded by the Goodyear Yellow Pine Company. The car in question was a flatcar and belonged to the Chicago and Northwestern Railroad. The consignee was plaintiff's employer, J. R. Foree Construction Company, at Fayette, Missouri. The car was routed via the Pearl River Valley Railroad, then the Southern Railroad, then the Frisco Railroad to St. Louis, Missouri, where it was transferred to the defendant M-K-T Railroad and was delivered at Fayette on January 22, 1947. It was placed on a track south of the depot for unloading. Plaintiff and Clark Plybon, another employee of the Foree Company, were in the process of unloading the poles when plaintiff was injured.

The questions preserved for review in defendant's brief are: the sufficiency of the evidence to support the verdict; plaintiff's contributory negligence; refusal of the trial court to give an instruction limiting the amount of damages; admission in evidence of a book containing rules governing the loading of poles in carload lots; and the question of whether the verdict is excessive.

Plaintiff testified that the flatcar in question had 94 poles on it and the height of the load was slightly over six feet. To secure the poles on the car, three wooden stakes were placed in pockets on each side of the car and three steel bands were drawn around the load. Reed testified that he had had instruction and had had experience in unloading such poles; that he followed the usual method on this morning. He stated he first notched the stakes on the south side of the car to which side he desired the poles to roll; that he then went to the north side and cut the steel band on one end of the load and then on the other end; that he then went to the center of the car to cut the center band but before he could do so, the band and the stakes on the north side as well as those on the south side broke and some of the poles rolled off the car on each side. The poles that rolled to the north pinned plaintiff's right leg against the depot. He testified that he was not released for about an hour and that it required a wrecker to remove the poles and thus to effect his release.

Clark Plybon corroborated plaintiff and further testified that the stakes on the north side of the car were dry, brittle, and doty; that the stakes were not fastened across the top of the load by a wire or band.

Earl Johnson, another employee of Foree, testified that he examined the broken stakes; that they were brittle, dry, and doty; that the stakes broke at the tops of the stake pockets or sockets; that the lower ends of the stakes were still in the pockets when he made his examination.

The charge of negligence was failure of the defendant railroad to make a proper inspection of the carload to discover that it was unsafe and failure to warn the consignee of the danger before delivery.

There was ample evidence to justify a finding that the stakes used as supports on the north side of the car as it was placed at the station at Fayette were not as required by the rules governing the loading of poles. The rules governing the loading of flatcars with poles of the kind contained in the shipment required the use of saplings or hardwood such as southern pine, long-leaf pine, or others as named in the rules. There was evidence introduced by the defendant that saplings were used on the car in question. Plaintiff introduced substantial evidence that the stakes were dry, brittle and doty. Defendant also introduced evidence that each pair of stakes was fastened to each other by a band or wire across the load of poles. Plaintiff introduced evidence to the contrary. It was admitted that three steel bands had been drawn around the load.

The defendant argues that the trial court erred in admitting in evidence a book of rules governing the loading of commodities on open top cars. The rules were published by the Association of American Railroads. A number of the defendant's witnesses testified that they were acquainted with the rules. These witnesses also testified that they inspected the car in question and found it to be loaded in accordance with these rules. It was further shown that the defendant was a member of the association. One of these witnesses who was a conductor for the Pearl River Valley Railroad stated if the car in question had not been loaded according to these rules, the car would not have been accepted for transportation. W. L. Charles, a conductor for the defendant railroad, testified he inspected the train of which the car in question was a part and found the car in good condition; that the inspection was made at West Alton, Missouri, a few miles north of St. Louis. Note a portion of his evidence: 'The Witness: What I mean by perfect condition is as far as I am individually concerned the car was--the poles were securely fastened on the car, the stakes were wired and it was safe to handle. We have a very crooked railroad and we watch them things very close.'

In justice to the defendant railroad we quote the explanation of the above statement as given by the witness. He was further examined as follows:

'Q. (By Mr. Elliott) What do you mean by 'crooked railroad'? Just describe whether there are curves in the road running from St. Louis--A. Practically curves from Franklin to St. Louis. We have very little straight track. Not over 3 miles in any one place do we have a straight railroad down there.'

The rules governing the loading of flatcars were admissible in evidence on the question of whether the car had been properly loaded. The defendant offered evidence showing that all parties connected with the loading and shipment of the car while in transit were acquainted with the rules and governed themselves accordingly. The point must be ruled against the defendant.

The defendant says that its duty ended when the car was delivered in a safe condition at Fayette and spotted for unloading; that the defendant or other railroads hauling the car had nothing to do with the loading or unloading and, therefore, it was not legally responsible to plaintiff for his injuries. The defendant cites 10 C.J. 103, Sec. 120; 13 C.J.S., Carriers, Sec. 67; Anderson v. Southern Ry. Co., 4 Cir., 20 F.2d 71; Southern Ry. Co. v. Edwards, 5 Cir., 44 F.2d 526; Lewis v. New York, O. & W. Ry. Co., 210 N.Y. 429, 104 N.E. 944; Stokes v. Burlington-Rock Island R. Co., Tex.Civ.App., 165 S.W.2d 229. The text in 10 C.J., supra, deals with injuries or damages to the merchandise shipped and, therefore, is not authority on the question now under consideration.

In the Anderson case, supra, the court did say that the defendant railroad was not liable to an employee of the consignee where stakes holding poles on a flatcar broke and caused the poles to roll on the employee causing his death. The court, however, decided that the car had been loaded according to the rules of the Association of American Railroads. The court also decided that the deceased had been guilty of negligence as a matter of law. The case of Southern Ry. Co. v. Edwards, supra, was also a case involving the unloading of poles from a flatcar. The court held that the danger in that case was open and visible and any danger was assumed by the employee of the consignee.

In the Lewis case, supra, an employee of a consignee of a carload of baled hay was injured when a bale fell on him as he opened the boxcar door. The hay had been loaded by the consignor. The court held the railroad not liable because the car was delivered in a safe condition; that the improper loading of the car could not have been discovered by inspection without breaking the seal and opening the door which the railroad had...