Seeden v. Great Northern R. Co.

• Decision Date: 18 June 1954
• Docket Number: No. 36159,36159
• Citation: 65 N.W.2d 178,242 Minn. 360
• Court: Minnesota Supreme Court
• Parties: SEEDEN v. GREAT NORTHERN R. CO. et al.

Page 178

65 N.W.2d 178

242 Minn. 360

SEEDEN v. GREAT NORTHERN R. CO. et al.

No. 36159.

Supreme Court of Minnesota.

June 18, 1954.

Syllabus by the Court

1. Where a railroad freight car is fully loaded and sealed by the consignor before delivery to carriers and where the carriers deliver it to consignee, said carriers have no duty to break the seals of the car doors and open the doors in order to inspect the position of the load carried in the sealed boxcar unless it is apparent from outside inspection that something has occurred in transit to disorganize or damage the contents within, and such carrier is not liable for any injury sustained by an employee of the consignee in unloading the contents under such circumstances.

2. Where a railroad boxcar is fully loaded and sealed by the consignor on consignor's premises before delivery to carriers, where after delivery of the car to the premises of the consignee said consignee by its own locomotive switched the car on its own track some distance to the unloading site, and where the railway carriers had no control over the unloading of the car, the doctrine of Res ipsa loquitur is not available to an employee of consignee injured during the unloading since that doctrine cannot be applied in the absence of exclusive control over the instrumentality on the part of the defendants. Arthur A. Sturdevant and John F. Dulebohn, Minneapolis, for appellant.

Edwin C. Matthias, Anthony Kane, W. P. Westphal, Don E. Engle, St. Paul, for Great Northern R. Co.

Faegre & Benson, Paul J. McGough, John S. Holten, Minneapolis, for Chicago Great Western R. Co.

NELSON, Justice.

The plaintiff, John Seeden, was employed by the Gopher Ordnance Works at Rosemount, Minnesota. A carload of rolls of paper pulp had been transported by the defendant railroads from Everett, Washington, to Rosemount, Minnesota. Defendant Chicago Great Western Railway Company, the connecting carrier, made final delivery of the car so loaded on the receiving track at the north gate inside the fence of the premises of the Gopher Ordnance Works, the consignee, at Rosemount. From this point a locomotive of the consignee took over on its own tracks and spotted it for unloading. The plaintiff and other employees of the Gopher Ordnance Works undertook the work of unloading the car, which is described as Pennsylvania Railroad boxcar No. 78939. When the plaintiff and other employees of consignee came to the unloading of this car as their second one for the day, plaintiff proceeded to push forward and up on a lever to start the door moving in the direction he faced. His fellow employees were at the same time pulling on the handle at the other end of the door. As the door opened, one of the paper rolls fell out of the car and struck plaintiff, causing serious injury to him.

The rolls of paper pulp weighed about 700 pounds each; the core, which may also be referred to as the flat side of each roll, was 39 inches in diameter; and the distance through the core from one flat side to the other was 29 inches. There were three tiers of paper rolls in each car. The bottom tier consisted of 36 rolls, arranged in three rows of 12 each running the length of the 40-foot car. The rolls in the middle or second tier were set in the troughs of the bottom layer, with 11 rolls in each row. The top or third tier had 12 rolls per row just as the bottom row. All the rolls were placed with their flat sides parallel to the sides of the car with the exception of the very last roll loaded on each side of the car, which was placed with its flat side down. Because this last roll was placed with its flat side down and because the diameter of the flat side was 10 inches more than the distance from one flat side to the other, this last roll and the roll next to the opposite door on the third tier each extended some five inches over the supporting second tier of rolls. A 1 8-inch fir board had been nailed across the supporting uprights inside the door at the level of this last roll. This was done by the shipper in the process of loading. The evidence indicates that this was the regular course followed in loading with the exception that at times one such fir board was nailed across the supporting uprights and at other times two such boards were nailed across in the same manner depending upon the amount of lumber at hand at the time of loading. After the loading was completed there was a space of six inches from the outside of this roll to the fir board and a space of five and five-sixteenths inches from the board to the door. An inspection made after the accident disclosed that the roll which was missing from the load and was then on the platform floor was the last roll loaded which had overhung the second tier, that this roll bore markings, and that the 1 8 fir board was down at one end. It was nine feet five inches from the top of the third tier, where the roll had been, to the platform.

This car had been loaded by the Soundview Pulp Company upon its premises at Everett, Washington, by its own employees and under its supervision, and the car doors had been sealed by its employees and under the supervision of the company. The bill of lading named the Soundview Pulp Company as consignor and the Gopher Ordnance Works as consignee. The original bill of lading was sent to the consignee. There was noted on the bill of lading the letters 'S.L. & C.' meaning 'Shipper's Load and Count' a well-understood term in railroad and shippers parlance which may be found in the Federal Bill of Lading Act.

The matter of distribution of railroad cars for shipping purposes was governed at the time by a statute of the state of Washington, 11 Remington's Rev.Stat. of Washington, § 10347. ¹ The defendant Great Northern Railway Company had, pursuant to a request of the Soundview Pulp Company, delivered the empty car to its premises. It was thereafter loaded by the employees of the Soundview Pulp Company, and after it had been fully loaded by its employees and under its supervision, the Great Northern switched the car from consignor's loading platform to its railroad yards at Everett, Washington, and then transported it over its rails to St. Paul, Minnesota, where it delivered the car to the other defendant, Chicago Great Western. The latter transported it to the receiving track of the Gopher Ordnance Works. Thereafter the Gopher Ordnance Works took charge and by its own locomotive switched the car on its own tracks some distance to building 101-C, its warehouse, where it was spotted for unloading.

It is undisputed from the testimony that no employee of either defendant was present in a supervisory capacity or otherwise during either the loading or the unloading of the car; that it had been loaded on the premises of the consignor and was unloaded on the premises of the consignee. The seal that had been placed on the car door was the seal of the consignor, placed thereon by it. This constituted a lock on the car door, and it had not been broken in transit but remained intact until broken by an employee of the consignee.

It appears undisputed that neither defendant supervised the loading or unloading of the car or inspected the inside of the car after loading before sealing or at any time during the unloading, and there is no claim that they had a duty so to supervise or inspect. It also appears without dispute that at no time was it apparent from the outside appearance of the car or its doors that anything unusual had happened on the inside to the rolls of paper pulp as originally loaded therein. Whatever condition was found to exist upon the opening of the car door by an employee of the Gopher Ordnance Works was not visible by inspection from the outside.

This accident occurred on April 3, 1945. Plaintiff brought suit on March 27, 1951, against the transporting and connecting carriers as defendants. Plaintiff alleged that the car was negligently loaded and that the defendant railway companies negligently transported the car. At the close of the plaintiff's case, the trial court directed a verdict in favor of both defendants and against the plaintiff. Plaintiff moved the court below to set aside the directed verdict for the defendants and for a new trial. The court denied the motion, and the plaintiff appeals from the order.

The legal questions involved appear to be as follows:

(1) Is it any part of the duty of reasonable inspection of the delivering railroad carriers here, under the existing circumstances as disclosed by the evidence, to break the seals on the car doors, open the same, and inspect the position of the load contained in a sealed boxcar which has been shipped under 'Shipper's Load and Count' bill of lading unless it is apparent from outside inspection that something has occurred in transit to disorganize or damage the contents within?

(2) If an employee of a consignee which assumes the entire burden and supervision of unloading is injured while unloading a boxcar loaded and sealed by the shipper and consignor and finally switched and spotted for unloading by the consignee into and over its enclosed area as was done here, the injury resulting from the fall of a part of the load which was not securely fastened down or in place, does the doctrine of Res ipsa loquitur apply against the transporting carriers, the car having been transported under the shipper's seal and 'Shipper's Load and Count' bill of lading?

We construe plaintiff's argument on appeal as falling into two parts, dealing first with the negligent loading of the car and next with the application of the doctrine of Res ipsa loquitur.

Plaintiff in his brief argues that the negligence lies in the violent, rough handling of the car in transport by defendant carriers, which caused the pulp roll in question to shift in the top tier, thus forcing down the dunnage board which shipper had nailed across between the door and the roll, as was its customary practice in loading and shipping the...