Spears v. New York Cent. R. Co.

• Decision Date: 06 March 1939
• Docket Number: 4795.
• Citation: 22 N.E.2d 634,61 Ohio App. 404
• Parties: SPEARS v. NEW YORK CENT. R. CO. et al.
• Court: Ohio Court of Appeals

22 N.E.2d 634

61 Ohio App. 404

SPEARS v. NEW YORK CENT. R. CO. et al.

No. 4795.

Court of Appeals of Ohio, First District, Hamilton.

March 6, 1939

Harmon Colston, Goldsmith & Hoadly and J. Louis Kohl, all of Cincinnati, for appellants.

Leo J. Brumleve, Jr., and John W. Wilke, both of Cincinnati, for appellee.

HAMILTON Presiding Judge.

This is an appeal on questions of law.

The plaintiff Larry Spears, appellee here, brought an action against the defendants, appellants here, for damages for personal injuries suffered by him while engaged in unloading a shipment of materials at the plant of The Joslin-Schmidt Corporation, located in Lockland, Ohio.

The Joslin-Schmidt Corporation operates a fertilizer plant at Lockland, Ohio. In May, 1934, it purchased a carload of fleshings or tanners offal. The tannery company was engaged in the tanning business, and the so-called fleshings consisted of refused and damaged hides and parts thereof and scrapings. The tannery company consigned the shipment to The Joslin-Schmidt Corporation at Lockland, Ohio.

The material was loaded in a car belonging to the Reading Railroad. The car was of the gondola type, with steel sides and two and three-fourths inch oak plank floor. The car was shipped over The Cincinnati, New Orleans & Texas Pacific Railway Company as the initial carrier, which railroad delivered the car at the Millcreek yards of the defendant The New York Central Railroad Company in Cincinnati Ohio. The New York Central Railroad Company picked up the car in the Millcreek yards and attached it to its train going north, and the car was carried by The New York Central Railroad Company to its yards in Sharonville, Ohio, where the car was given the Carmack Amendment inspection requirements after which it was picked up by The New York Central Railroad Company and conveyed to Lockland, Ohio, and was there placed at the unloading platform on the private siding of The Joslin-Schmidt Corporation. The Joslin-Schmidt Corporation put its servants and employees at work unloading the car of fleshings. Among the workmen was the plaintiff in this case. They unloaded the car with forks. A portion of the car had been unloaded, but while the floor of the car was still covered with the offal, and Spears was engaged in lifting a fork full of the material, his foot shoved through the floor of the car. His leg went through to the groin, causing serious injuries. After the car was entirely unloaded, it was discovered that there were three or four other holes similar to the one at the place in the car where Spears was injured. It is not clear whether the hole existed at the time or whether the floor board gave way through rottenness or decay.

The charge of negligence in the petition is in substance that the defendant, The New York Central Railroad Company, was the delivering carrier at the time it placed the car on the siding for the purpose of unloading, and knew that in order that the car might be unloaded with an ordinary degree of safety by the agents and employees of The Joslin-Schmidt Corporation, the consignee, it was necessary that the car should be in an ordinary and reasonably safe condition for the agents and employees of The Joslin-Schmidt Corporation to unload; that the defendant, The New York Central Railroad Company, neglecting its duty in the premises and in utter disregard of the safety of the agents and employees of The Joslin-Schmidt Corporation, carelessly and negligently used and furnished a car which was in a dangerous and defective condition for the agents and employees of The Joslin-Schmidt Corporation to unload, in that one of the floor boards of the car had become and was rotten, weak and cracked, and in such defective condition that the floor board was not strong enough to bear the weight of anyone who should go into and upon the car and floor board for the purpose of unloading; that the defendant railroad company had full knowledge that this car, because of the dangerous and defective condition of the floor board, was not in an ordinary and reasonably safe condition for the agents and employees of The Joslin-Schmidt Corporation to unload, or, if the defendant had exercised ordinary and reasonable care in the premises, the defendant would have had such knowledge; and that as a direct result of this negligence of the defendant, the plaintiff received certain injuries, which are set forth in the petition.

The answer of the railroad company was a general denial, after admitting its corporate existence and its operation of the railroad.

The trial court submitted the question to the jury under the proposition of law that there was a responsibility on the part of the railroad company as the delivering carrier to furnish a car reasonably safe for unloading, and on the sole ground that the defendant railroad company knew it was furnishing a defective car, unsafe for the purpose, or that, if the defect was a patent one, it would only be liable for failure to make reasonable inspection to ascertain the defect, and to use due care under the circumstances.

The court charged the jury that the railroad company would not be liable for latent defects.

The trial resulted in a verdict and judgment for plaintiff in the sum of $11,000. On considering the motion for a new trial, the court found the verdict was excessive, but not sufficient to show passion and prejudice, and that the excessive amount would be corrected by requiring a remittitur of $4,000, to which counsel for plaintiff agreed, and judgment was entered for the sum of $7,000. From that judgment the railroad company appeals to this court, specifying fourteen grounds of error, which may be summed up in the proposition that the railroad company, under the circumstances, owed no duty to the plaintiff. This question was presented on the motion for an instructed verdict, which was overruled, and that constitutes one of the assignments of error. Others, going to question of the weight of the evidence, are presented in different ways, such as excessive verdict and verdict under passion and prejudice, verdict contrary to law and contrary to the weight of the evidence, not sufficient evidence, and so forth.

Another proposition, which counsel for appellant claims requires a reversal is that The New York Central Railroad Company was not in a position of line carrier or delivering carrier, that at most it was but a switching carrier, and simply the agent of the line carrier to spot the car at consignee's place of business, and, therefore, there was no liability as a delivering carrier, and that in fact the initial carrier and the line carrier were the carriers for the switching agent, The New York Central Railroad Company, defendant.

We do not find any authorities, with the exception of one or two cases, making such distinction between a delivering carrier and a switching carrier. It is possible that a railroad company might move a car in transit at the direction of the initial carrier, in which it might be placed in the category of switching carrier, but that is not this case, if there is a difference in the liability between the switching carrier, line carrier, and the delivering carrier.

In the statement of facts it is disclosed that the car was consigned to Lockland, Ohio, and placed in the yards of the defendant company in Cincinnati, that the car was picked up by the defendant railroad company, placed in its train and shipped north over its tracks, through the country...