Settle v. Baldwin, 39524.

• Decision Date: 08 July 1946
• Docket Number: No. 39524.,39524.
• Parties: VIRGIL W. SETTLE, Administrator of Estate of JAMES G. SETTLE, Deceased, Appellant, v. L.W. BALDWIN and GUY A. THOMPSON, Trustees of the MISSOURI PACIFIC RAILROAD COMPANY, a Corporation.
• Court: Missouri Supreme Court

196 S.W.2d 299 VIRGIL W. SETTLE, Administrator of Estate of JAMES G. SETTLE, Deceased, Appellant,
v.
L.W. BALDWIN and GUY A. THOMPSON, Trustees of the MISSOURI PACIFIC RAILROAD COMPANY, a Corporation. No. 39524. Supreme Court of Missouri. Division One, July 8, 1946. Rehearing Denied, September 9, 1946.

[196 S.W.2d 300]

Appeal from Jackson Circuit Court. — Hon. John R. James, Judge.

REVERSED AND REMANDED (with directions).

Clarence C. Chilcott and T.W. Imes for appellant.

(1) The court erred in holding that the evidence was insufficient to support a verdict as it was the nondelegable duty of the defendants to furnish cars which were reasonably safe, fit and suitable for the purpose for which they were intended which defendant failed to do. This could not be shifted to another so as to exempt defendant from liability and the ownership of the car was immaterial. Stoutimore v. A., T. & S.F. Ry. Co., 338 Mo. 463, 92 S.W. (2d) 658; Markley v. K.C. Southern Ry. Co., 338 Mo. 436, 90 S.W. (2d) 409; Turner v. M., K. & T. Ry. Co., 346 Mo. 28, 142 S.W. (2d) 455; Willis v. A., T. & S.F. Ry. Co., 352 Mo. 490, 178 S.W. (2d) 341; Fassbinder v. Mo. Pac., 126 Mo. App. 563, 104 S.W. 1154; Roddy v. Mo. Pac., 104 Mo. 234, 15 S.W. 1112; Etchison v. Lusk, 195 Mo. App. 188, 190 S.W. 345; Secs. 5163, 5267, R.S. 1939; 2 Hutchinson on Carriers, sec. 498, p. 543; Waldron v. Director Gen. of Railroads, 266 Fed. 196; Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479; Ross v. Louisville & N.R. Co., 172 So. 752; McCoy v. K.C., St. J. & C.B. Ry. Co., 36 Mo. App. 445; Kirkland v. Charleston & S.C. Ry. Co., 60 S.E. 668; 51 C.J. 767, sec. 534; Hawkins v. Mo. Pac. Ry. Co., 182 Mo. App. 323, 170 S.W. 459; Sykes v. St. Louis & S.F.R. Co., 178 Mo. 693, 77 S.W. 723; Tyndall v. New York Cent. & H.R. Co., 141 N.Y.S. 879; Doering v. St. Louis & O'Fallon Ry. Co., 63 S.W. (2d) 450; Burns v. K.C., Ft. Smith & Memphis Ry. Co., 129 Mo. 41, 31 S.W. 347; Erie Co. v. Murphy, 108 F. (2d) 817; Swain v. Terminal Railroad Assn. of St. Louis, 220 Mo. App. 1088, 291 S.W. 166. (2) The court erred in holding that the plaintiff's injury was left to guess, speculation and conjecture, and that the manner in which plaintiff was injured was contrary to the law of physics, as the evidence was ample to fix liability, injury and disability and the falling of the cake of ice away from the corner in which plaintiff and Haney were attempting to set it was not, under the evidence, contrary to the law of physics, or physical facts. Schupback v. Meshevsky, 300 S.W. 465; Pashea v. Terminal Railroad Assn. of St. Louis, 350 Mo. 132, 165 S.W. (2d) 691; Freeman v. Terminal Railroad Assn. of St. Louis, 341 Mo. 288, 107 S.W. (2d) 36; Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 120; Gutridge v. Mo. Pac. Ry. Co., 105 Mo. 520, 16 S.W. 943; Rose v. Mo. Dist. Tele. Co., 328 Mo. 1009, 43 S.W. (2d) 562; Dixon v. Frazier-Davis Const. Co., 318 Mo. 50, 298 S.W. 827; Ruch v. Pryor, 199 S.W. 750; McCurry v. Thompson, 352 Mo. 1199, 181 S.W. (2d) 529; Jenkins v. Kurn, 346 Mo. 904, 144 S.W. (2d) 76; Doyle v. St. Louis Merchants' Bridge Term. Ry. Co., 326 Mo. 425, 31 S.W. (2d) 1010; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W. (2d) 509; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W. (2d) 143; Wahl v. Cunningham, 332 Mo. 21, 56 S.W. (2d) 1052; Parrent v. Mobile & Ohio R. Co., 334 Mo. 1202, 70 S.W. (2d) 1068; Gunning v. Cooley, 281 U.S. 90, 50 S. Ct. 231, 74 L. Ed. 720; Hardin v. Ill. Central R. Co., 334 Mo. 1169, 70 S.W. (2d) 1075. (3) The court erred in holding that the defect in the car was not sufficient to constitute negligence as a matter of law. This was a jury question because as there was sufficient movement of the floor to topple the ice over upon decedent and injure him there was sufficient to constitute negligence and being sufficient to constitute negligence then such negligence was the proximate cause of plaintiff's injuries or at least was a question for the jury. Stewart v. George B. Peck Co., 234 Mo. App. 864, 135 S.W. (2d) 405; Slater v. A., T. & S.F. Ry. Co., 224 Mo. App. 824, 24 S.W. (2d) 660; Clark v. Union Iron & Foundry Co., 234 Mo. 436, 137 S.W. 577; Freeman v. Terminal Railroad Assn. of St. Louis, 341 Mo. 288, 107 S.W. (2d) 36; Gray v. Kurn, 345 Mo. 1027, 137 S.W. (2d) 558; Coble v. St. Louis-S.F.R. Co., 38 S.W. (2d) 1031; Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W. (2d) 924; Tateman v. C., R.I. & P.R. Co., 96 Mo. App. 448, 70 S.W. 514; Rattan v. Central Electric Co., 120 Mo. 270, 96 S.W. 735; Mastin v. Emery Bird Thayer D.G. Co., 236 Mo. App. 487, 140 S.W. (2d) 720; State ex rel. Shain v. Emery Bird Thayer D.G. Co., 348 Mo. 650, 154 S.W. (2d) 775; Gutridge v. Mo. Pac. Ry. Co., 105 Mo. 520, 16 S.W. 943; Erie v. Murphy, 108 F. (2d) 817; Clark v. S.L. & S.F. Ry. Co., 234 Mo. 396, 137 S.W. 583; Fassbinder v. Mo. Pac. Ry. Co., 126 Mo. App. 563, 104 S.W. 1154; Strayer v. Q.O. & K.C.R. Co., 170 Mo. App. 514, 156 S.W. 732. (4) The verdict should be reinstated. Sec. 140, General Code of Civil Procedure, Laws of 1943, p. 395; Secs. 1229, 1231, R.S. 1939; Block v. Guaranty Co., 316 Mo. 278, 290 S.W. 429; Cotton v. Ship By Truck Co., 337 Mo. 270, 85 S.W. (2d) 80.

Leslie A. Welch, Richard H. Beeson and David P. Dabbs for respondents.

(1) The so-called "nondelegable duty" to furnish reasonably safe cars is only applicable when the cargo is to be transported by a railroad under its duty as a common carrier as a commercial shipment under a bill of lading at published tariff rates. It is not applicable to facts such as are involved here where the ice was to be transported for the railroad's own use. Santa Fe Ry. Co. v. Grant Bros. Const. Co., 228 U.S. 117, 57 L. Ed. 787, 33 S. Ct. 474; Dominices v. Monongahela Con. R. Co., 195 Atl. 747; Northern Pac. Ry. Co. v. Helvering, 83 Fed. 508; B. & O.S.R. Co. v. Voight, 176 U.S. 498, 20 S. Ct. 385; Robinson v. B. & O.R. Co., 237 U.S. 84, 35 S. Ct. 491; Southern Ry. Co. v. Stearns Bros., Inc., 28 F. (2d) 562; 13 C.J.S. 229, sec. 117. (2) The fact that the ice was moved under a waybill is immaterial. A waybill is not a contract for carriage. 44 Words and Phrases, "Waybill," p. 760. (3) There was insufficient evidence to justify a finding that plaintiff's injuries were caused by a negligent condition of the car, because: The cause of plaintiff's injury was a matter of guess, speculation and conjecture. The mere occurrence of the falling of the long, slender cake of ice, when hurriedly stood on its small end by Mr. Settle and his helper, is not proof that it was caused to fall by the slight sag of the floor in the corner of the car, as claimed by plaintiff, to the exclusion of many other things that might cause it to fall. Watkins v. Bird-Sykes-Bunker Co., 16 S.W. (2d) 38, 322 Mo. 830; Warner v. St. Louis & M.R. Co., 178 Mo. 125, 77 S.W. 67; Bates v. Brown Shoe Co., 116 S.W. (2d) 31, 342 Mo. 411. (4) Appellant's claim is contrary to the law of physics. If the floor sagged downward toward the corner, the cake of ice would lean into the corner of the car rather than away from it. State ex rel. K.C.S. Ry. Co. v. Shain, 105 S.W. (2d) 915, 340 Mo. 1195. (5) The mere fact that the floor of the car sagged an inch or an inch and a half under the pressure of loading cakes of ice weighing 375 pounds, does not establish negligence. Cars used for hauling heavy freight cannot be kept in the perfect condition demanded by plaintiff. Wecker v. Grafeman-McIntosh Ice Cream Co., 326 Mo. 451, 31 S.W. (2d) 974. (6) Defendants were further entitled to a directed verdict on the ground that defendants were the statutory employers of plaintiff under the Missouri Workmen's Compensation Act, and all liability of defendants was fully discharged by payment of compensation to plaintiff by his immediate employer, Mountain Ice Company. The trial court erred in not sustaining the motion of defendants for a directed verdict on this ground. Sec. 3698 (Subsections (a), (d)), R.S. 1939; Pruitt v. Harker, 328 Mo. 1200, 43 S.W. (2d) 769; Simpson v. New Madrid Stave Co., 52 S.W. (2d) 615; Bunner v. Patti, 121 S.W. (2d) 153, 343 Mo. 274; Atlas Powder Co. v. Hanson, 136 F. (2d) 444. (7) The following cases are not in point: Perrin v. American Theatrical Co., 178 S.W. (2d) 332; State ex rel. Long-Hall Laundry Co. v. Bland, 188 S.W. (2d) 838.

VAN OSDOL, C.

Action for personal injuries. A jury returned a verdict for plaintiff awarding damages in the sum of $10,000; but the verdict was set aside by the trial court and judgment rendered for defendants, notwithstanding the verdict. Plaintiff (now deceased) appealed.

Plaintiff was an employee of Mountain Ice Company, a wholesaler of ice. When injured, plaintiff was engaged in loading ice manufactured by Ice Company into a car belonging to American Refrigerator Transit Company, a New Jersey corporation.

American Refrigerator Transit Company, hereinafter referred to as ART, was under contract dated January 1, 1925, to furnish a sufficient number of suitable refrigerator cars to defendants-respondents, trustees of the Missouri Pacific Railroad Company, hereinafter referred to as Railroad Company, to enable Railroad Company to accept perishable commodities for carriage on its lines. Under the provisions of the contract, ice-storage houses, ice stations and platforms, elevated tracks, machinery and other appliances, together with the lands upon which the facilities were located, were leased by Railroad Company to ART with a lessee's privilege of subleasing any of the land and the facilities upon the written consent of Railroad Company. By the contract, ART also undertook to perform, "as the agent of the Carrier, all of the services necessary to the effective refrigeration" of perishable commodities transported in the cars of ART or in cars of other ownership in possession of Railroad Company; and ART agreed, "as agent for the Carrier, to furnish ice and salt necessary for the protection of all perishable freight handled by...