St. Louis-San Francisco Ry. Co. v. Ewan

• Decision Date: 16 May 1928
• Docket Number: No. 7723.,7723.
• Citation: 26 F.2d 619
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. EWAN.
• Court: U.S. Court of Appeals — Eighth Circuit

26 F.2d 619 (1928)

ST. LOUIS-SAN FRANCISCO RY. CO. v. EWAN.^*

No. 7723.

Circuit Court of Appeals, Eighth Circuit.

May 16, 1928.

Hale Houts, of Kansas City, Mo. (E. T. Miller, of St. Louis, Mo., and Henry S. Conrad and L. E. Durham, both of Kansas City, Mo., on the brief), for plaintiff in error.

Ira B. Burns, of Kansas City, Mo. (Paul T. White, of Kansas City, Mo., on the brief), for defendant in error.

Before STONE, Circuit Judge, and OTIS, District Judge.

OTIS, District Judge.

The defendant in error, who was plaintiff below and will be referred to herein as the plaintiff, at the time of the injury on account of which this suit was brought, was employed by the Quality Coal Company, which was engaged in operating a coal mine near Arcadia, Kan. Cars for the transportation of coal mined by the plaintiff's employer were supplied by the plaintiff in error, herein referred to as the defendant. The cars were not directly ordered from the defendant by the Quality Coal Company, but by the Mackie-Clemens Company, a selling agency for the coal company. When the coal company needed cars, it would give notice to the Mackie-Clemens Company. That company in turn would give notice to the defendant, which then would place the number of cars required on a switch track above the mine. After a car had been loaded by the employees of the coal company, one of them would climb on the front end, release the brake, permit the car to move forward by gravity to a point where it would later be picked up by the defendant, and bring it to a stop at that point by applying the brake. It was this work which the plaintiff was doing, when a cotter pin which aided in holding the brake beam upright gave way, causing the upper portion of the beam suddenly to pitch forward, and precipitating the plaintiff, then engaged in manipulating the brake, to the track. The car ran over him, crushing him so that amputation of both legs was necessary, and otherwise injuring him. The plaintiff in his petition charged that these injuries were caused by the negligence of the defendant in providing for the use of the employees of the Quality Coal Company a car in an unsafe condition, "in that the cotter key or ring at the bottom of the shaft or stem of the hand brake on said car was old, rusty, worn, broken, cracked, bent, decayed, or loose." The jury assessed plaintiff's damages at the sum of $38,250.

It is urged upon us by the defendant that the trial court erred in refusing to direct a verdict for the defendant. In support of this contention it is insisted by the defendant, first, that "even if the defendant was negligent as charged its negligence was not the proximate cause of plaintiff's injury"; second, that "there was no privity of contract either between plaintiff and defendant and plaintiff's employer and defendant, and therefore defendant owed plaintiff no duty"; and, third, that "the evidence was insufficient to show that the cotter pin was defective prior to the delivery by the defendant of the car upon the switch track in question, or that there was any such defect discoverable by proper inspection."

1. Defendant's argument that it was the duty of plaintiff's employer to inspect the car in question, and that its failure so to do constituted negligence, need not here be questioned. That negligence was not an intervening cause of plaintiff's injury. It is a carrier's duty to use ordinary care to deliver cars reasonably safe for the use of shippers and their employees while the cars are being loaded or unloaded. Copeland v. Chicago, B. & Q. R. Co. (C. C. A.) 293 F. 12, 15. The employer's duty to provide for the employee a safe place in which to work may be added in the circumstances but does not supplant the carrier's duty. "The carrier cannot impose this duty to furnish cars reasonably safe on the shipper, to its own relief from liability for injuries to an employee of the shipper. If the carrier is negligent in furnishing a defective car to the shipper, and the shipper in turn is negligent in furnishing it to his employee to be loaded, the carrier and shipper are both liable to the injured employee; for the proximate cause of the injury is the defective car. But as between the...