Southern Pac. Transp. Co. v. Reed, 1

• Decision Date: 16 December 1976
• Docket Number: CA-CIV,No. 1,1
• Citation: 559 P.2d 1082,114 Ariz. 167
• Parties: SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellant, v. Harold T. REED and Lois Mary Reed, his wife, Appellees. 2972.
• Court: Arizona Court of Appeals

Page 1082

559 P.2d 1082

114 Ariz. 167

SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellant, v. Harold T. REED and Lois Mary Reed, his wife, Appellees.

No. 1 CA-CIV 2972.

Court of Appeals of Arizona, Division 1, Department A.

Dec. 16, 1976.

Rehearing Denied Jan. 13, 1977.

Review Denied Feb. 8, 1977.

Evans, Kitchel & Jenckes, P.C. by David L. Beaugureau, Phoenix, for appellant.

Rosen & McGroder, Ltd. by Patrick J. McGroder, III, Phoenix, for appellees.

OPINION

OGG, Judge.

In this appeal we must decide the duty a railroad owes to an employee of a consignee who is injured while working on a loaded flatcar which is located on the consignee's premises.

The plaintiff/appellee Harold T. Reed instituted this action in the Superior Court of Maricopa County against the defendant/appellant Southern Pacific Transportation Company to recover damages for personal injury allegedly sustained by Reed as the proximate result of the negligence of Southern Pacific. Trial of the case resulted in a jury verdict in favor of Reed and against Southern Pacific for the amount of $30,000. Southern Pacific has appealed from this judgment and from an order of the trial court denying its motion for judgment notwithstanding the verdict. A second defendant, Reliance Truck Company, was held to be not liable to Reed by the jury under the same cause of action and is not a party to this appeal.

At the time of his injury Reed was employed as a field service mechanic on heavy equipment by Copper State Equipment Company. Copper State was the owner of a large 'Payhauler' truck which had been sold to another party and which was to be shipped by rail. Copper State, in turn, hired Reliance Truck Company to load and secure the Payhauler on a railroad flatcar provided by Southern Pacific. Reliance Truck was to supply all labor and materials to accomplish the loading operations.

Reliance Truck was provided by Southern Pacific with a page from the Association of American Railroads' loading manual on procedures in loading a similar truck as an aid in the loading processes. Reliance Truck proceeded to load the truck on the railroad car and secure it, using wooden blocks at the wheels and eight tie-down cables at various points of the load, including cables at each corner. These cables were tightened by the use of a 'twist bar' which consisted of two pieces of two inch pipe welded in a cross which was twisted through a loop made in the end of each cable in order to create tension in the cable and take up slack. The twist bar was then secured to the railroad car by nails driven into the wooden bed of the car and bent over the top of the bar to form an arch.

The load was inspected on several occasions by an inspector for Southern Pacific; he found the cables and twist bar mechanisms to be secure in his opinion and the load was eventually cleared for shipment.

Line clearance was not obtained for the car, however, since the load was found to be excessively wide. Yet prior to the resolution of line clearance the loaded car was removed from the Copper State spur by Southern Pacific and taken to its Phoenix railroad yard. The car was taken through several switching operations and eventually returned to Copper State for width modification on December 29, 1972.

Upon its return to the Copper State spur, the car was inspected by representatives of Copper State and Reliance Truck, at which time it was observed that the tie-down cables on the car were slack. Copper State directed Reed and a co-employee to perform the necessary width modifications on the Payhauler and with this purpose in mind Reed went to the loaded railroad car on January 4, 1973. Reed testified that he was familiar with cable tie-down on railroad cars using a twist bar and noticed that the cables on the car were slack. Reed reached up and touched one of the cables with his hand, at which time the twist bar spun on its axis and struck him in the face causing him severe injury.

In general, the scope of duty owed by a railroad to injured third parties is contingent upon several variables. Duty may be contingent upon the type of railroad car involved in the injury, see 29 A.L.R.3d 1039 (1970), upon the relationship between the injured party and the railroad, and also upon the instrumentality...