Robirtson v. Gulf & S. I. R. Co.

• Decision Date: 07 January 1935
• Docket Number: 31472
• Parties: ROBIRTSON v. GULF & S. I. R. Co. et al
• Court: Mississippi Supreme Court

158 So. 350

171 Miss. 628

ROBIRTSON v. GULF & S. I. R. Co. et al

No. 31472

Supreme Court of Mississippi

January 7, 1935

Division A

1 BAILMENT.

Supplier of chattel for another's use is subject to liability for injury caused by use in manner for which and by a person for whose use it is supplied if supplier knows or should realize that chattel is or is likely to be dangerous for use for which it is supplied, has no reason to believe that those for whose use chattel is supplied will realize dangerous condition, and fails to exercise reasonable care to inform them of its dangerous condition or of facts making it likely to be so.

2 BAILMENT.

Supplier of chattel to another to be used for supplier's business purposes is liable for injury resulting from use if he has failed to exercise reasonable care to make chattel safe for use for which it is supplied or failed to exercise reasonable care to discover dangerous condition and give warning.

3 RAILROADS.

In action by employee of Creosote Company for injuries sustained on railroad car, declaration alleging railroad supplied cars to Creosote Company to aid in production and facilitate speedy loading and shipment by railroad held insufficient to charge railroad with liability for furnishing a defective chattel to another, where cars at time of injury were being used solely in Creosote Company's business.

HON. W. A. WHITE, Judge.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE, Judge.

Action by J. H. Robirtson against the Gulf & Ship Island Railroad Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Affirmed.

T. J. White and Carl Marshall, both of Gulfport, for appellant.

The rule is very familiar in our jurisdiction, we believe, that whenever one contractually undertakes with another to perform an act, a duty arises from the mere operation of law to so perform the contractual obligation as to avoid injury to third persons, with whom there is no privity of contract, but who might reasonably be expected to have legitimate contact with the performance; and especially is this true as to injuring such third persons by concealed dangers negligently arising from the performance, of which they are not aware.

45 C. J., Negligence, 650.

No proposition is more firmly established in the law of these cases than that the duty of the railroad to avoid injury to any person that it might reasonably expect to make use of one of its cars does not arise out of contract, but is a duty created by law.

St. Louis-San Francisco Ry. Co. v. Swan, 26 F.2d 619; Continental Fruit Co. v. Leas, 110 S.W. 129; Sasnowski v. M. & O. R. R. Co., 207 S.W. 865; Owens v. Y. & M. V. R. R. Co., 94 Miss. 378, 47 So. 578; Mississippi Central Railroad Co. v. Lott, 118 Miss. 809, 80 So. 277; Moon v. Northern Pacific R. Co., 46 Minn. 106, 48 N.W. 679, 24 Am. St. Rep. 194; 1 Shearman and Redfield on Negligence, sec. 116; Bigelow on Torts, 614.

The Mississippi authority holding that a railroad company that leases its property to another road is not liable for injuries received by the lessee's employees from defectiveness of the leased equipment, on the facts is not opposed to the plaintiff's contention here; because as the court will observe from a perusal of the authority, in each instance the property leased was of patent defectiveness, known to the employees of the lessee when they were using the property.

Teal v. American Min. Co., 87 N.W. 837; Mehegan v. Railroad Company, 178 Mich. 694, 141 N.W. 905.

Burch, Minor & McKay, of Memphis, Tennessee, and Gardner & Backstrom, of Gulfport, for appellees.

Negligence can proceed only from a duty imposed by the contract, or by the statutes of the state, or by a well defined public policy.

Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73.

There were no contractual relations between the defendants and the plaintiff. He could claim no right thereunder.

Warner v. Synnes and West Oregon Lumber Co., 114 Ore. 451, 230 P. 362, 44 A. L. R. 904; Necker v. Harvey, 49 Mich. 517; Curtain v. Somerset, 140 Pa. St. 70, 23 Am. St. Rep. 220.

There is no statute fixing liability on the defendants under the facts pleaded in this case irrespective of whether the contract is considered or left out of view entirely.

Public policy does not require the defendants to respond in damages to the plaintiff in this case under the facts alleged in the amended declaration irrespective of the invalidity of the alleged contract.

Buckner v. Railroad Company, 72 Miss. 873, 18 So. 49; Illinois Central Railroad Company v. Price, 72 Miss. 862, 18 So. 415; Thompson on Negligence, sections 4374 and 4377; Railway Co. v. Avery, 109, Ill. 314; Citizens Light Co. v. Kendrick, 6 Ala.App. 423, 60 So. 526; Pacific Telephone Co. v. Starr, 206 F. 517, 124 C. C. A. 223, 46 L. R. A. (N. S.) 1123.

If the defendants furnished the flat car in question either by loaning or renting the same to the Creosoting Company, the burden of inspection was on the Creosoting Company, and it was not thereby relieved from its non-delegable duty to furnish its servants safe instrumentalities with which to work. There is no principle of law nor any well defined public policy which would absolve the Creosoting Company from liability, and place the responsibility on the defendants.

M. K. & T. Ry. Co. v. Merrill, 65 Kans. 436, 70 P. 358, 93 Am. St. 287; McCallion v. Missouri P. R. Co., 88 P. 50, 9 L. R. A. (N. S.) 866; Fowles v. Briggs, 116 Mich. 425, 72 Am. St. Rep. 537; Mahogany v. Ward, 27 Am. St. Rep. 754; 39 Cyc. 333, sec. 452; Ladd v. R. R. Co., 193 Mass. 359, 79 N.E. 742, 9 L. R. A. (N. S.) 874.

Plaintiff went upon the car charged with the knowledge that the duties owing to him by the Creosoting Company were not delegated to the defendants and were neither curtailed nor enlarged by the contract in question.

Louisville & Nashville Railroad Co. v. Mottley, 219 U.S. 467, 31 S.Ct. 265; McNeill v. Railroad Co., 132 N.C. 510, 48 S.E. 34, 95 Am. St. R. 641; Railroad Co. v. Burnseed, 70 Miss. 437, 12 So. 958, 35 Am. St. Rep. 656.

Argued orally by Carl Marshall, for appellant, and by Oscar Backstrom, for appellee.

OPINION

Cook, J.

The appellant instituted this suit in the circuit court of Harrison county against the Gulf & Ship Island Railroad Company and the Illinois Central Railroad Company seeking to recover damages for personal injuries alleged to have been sustained by him on account of the negligence of the defendants in furnishing his employer, the Gulfport Creosoting Company, a defective flat car. The original declaration was amended, and thereafter demurrers of the defendants to the amended declaration were sustained. The appellant declined to further amend his declaration, and final judgment was rendered against him, from which this appeal was prosecuted.

The amended declaration charged, in substance, that the appellees are common carriers engaged in the transportation of freight and passengers for hire; that the Gulfport Creosoting Company owns and operates a plant for treating timber, which is located, near the main line of the railroad of the appellees and is connected therewith by a spur track constructed by the appellees; that all of the rail shipments of the Creosoting Company's products moved initially over the appellees' railroad on freight cars furnished by them to the creosoting plaint; that in moving its products from the treating tubes or cylinders to the storage yard where the same were assembled, stored, and stacked for ultimate shipment, it was necessary to use railroad cars; that on account of an excess of freight cars and a great deficiency of railroad freight traffic, it was necessary for the appellees, and other railroad enterprises, to stimulate the shipment of freight by aiding in the production of all commodities, including the products of the Gulfport Creosoting Company; that for this reason, and in order to assist the said Gulfport...