The Missouri v. Merrill

• Court: Kansas Supreme Court
• Writing for the Court: SMITH, J.:
• Citation: The Missouri v. Merrill, 70 P. 358, 65 Kan. 436 (Kan. 1902)
• Decision Date: 11 October 1902
• Docket Number: 12,553 12,620
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. L. T. MERRILL et al. KANSAS CITY SUBURBAN BELT RAILROAD COMPANY v. L. T. MERRILL et al

70 P. 358

65 Kan. 436

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. L. T. MERRILL et al. KANSAS CITY SUBURBAN BELT RAILROAD COMPANY v. L. T. MERRILL et al

No. 12,553 No. 12,620

Supreme Court of Kansas

October 11, 1902

Decided July, 1902.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

STATEMENT.

DEFENDANT in error L. T. Merrill, who was plaintiff in the court below recovered a judgment against the Kansas City Suburban Belt Railroad Company and the Missouri, Kansas & Texas Railway Company for personal injuries sustained by him in attempting to pass from a flat or coal-car to a box car in the yards of the Chicago Great Western Railway Company in Kansas City Kan. He was a switchman in the employ of the latter company. The flat car belonged to the Missouri, Kansas & Texas Railway Company. It was loaded with iron pipe at St. Louis and the contents consigned to St. Joseph, Mo. The line of the latter company terminates at Kansas City, Mo.

The car was provided with end-gates, which were held in an upright position by wooden cleats, nailed to the inside of the sideboards on the outside of the end-gates. There were no iron hooks or eye-bolts provided, which are generally used to hold the end-gates in place. Upon the arrival of the car in Kansas City, Mo., it was sent from the yards of the Missouri Kansas & Texas Railway Company to the yards of the Kansas City Suburban Belt Railroad Company, there inspected by the latter company, placed in a train with about twenty-five others, and pushed a distance of 2000 feet across the state line to a place where cars were usually left to be received by the Chicago Great Western Railway Company. There the car in question was inspected by an inspector of the latter company. The switching crew of the Chicago Great Western Railway Company, of which plaintiff below was a member, then took charge of the string of cars and hauled them to the yards of the latter company and proceeded to make up a train destined for St. Joseph, Mo., and places beyond. Plaintiff below was near the engine on a box car when, in the discharge of his duties, he started toward the rear of the train. Coming to the flat car, he walked over the iron pipe, which was about equal in height to the sides of the car and end-gates. The pipe had been pushed back from the end-gate so that the top of it was about fifteen inches therefrom. Plaintiff stepped with his right foot from the end of the pipe to the top of the end-gate and attempted to cross over to a box car attached. In doing so, the thrust of his body caused the end-gate to give way, and he fell between the cars while in motion. It would seem that the load on the flat car had pushed the sides outwardly so that the cleats nailed thereto did not hold the end-gate in an upright position, and permitted it to move past the cleats and topple over when stepped on.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury to Employee -- Liability of Connecting Lines. A railway company which delivers a defective freight-car to a connecting line is not liable in damages to an employee of the latter, who is injured by reason of such defects, after the car has been inspected by the company receiving it. The loss of control over the car and over the servants having it in charge relieves the delivering company from responsibility to the employees of the receiving company.

2. RAILROADS -- Case Overruled. That part of the decision in Railway Co. v. Merrill, 61 Kan. 671, 60 P. 819, indicated by the first paragraph of the syllabus, is overruled.

T. N. Sedgwick, and Silas Porter, for plaintiff in error Missouri, Kansas & Texas Railway Company.

Miller, Buchan & Morris, and Lathrop, Morrow, Fox & Moore, for plaintiff in error Kansas City Suburban Belt Railroad Company.

Angevine & Cubbison, for defendant in error L. T. Merrill.

SMITH J. All the Justice's concurring. DOSTER, C. J.

OPINION

SMITH, J.:

The question for consideration is whether a railway company which delivers a defective car to a connecting carrier is liable for injuries sustained by an employee of the latter by reason of such defect, after the receiving company has inspected the car and taken it in charge for transportation over its line. In a former decision of this case, it was held to be within the contemplation of the first carrier that the car would be delivered to another for transportation, and it was also known that connecting carriers employ switchmen to handle such cars, and that their services are necessary in the work of making up trains. It was said:

"With this knowledge, it was the duty of both the plaintiffs in error to provide a car which would be reasonably safe for the service to be performed and for employees of connecting lines to handle, to the end that freight might be expeditiously carried to its destination. . . . Negligence on the part of the Chicago Great Western Railway Company will not excuse the plaintiffs in error either for their failure to inspect, or, having inspected the car, permitting it to be delivered to a connecting line in a condition which might be dangerous to switchmen and other employees engaged in the practical part of the business of railway transportation." (Railway Co. v. Merrill, 61 Kan. 671, 675, 60 P. 819.)

We are now fully convinced that the doctrine announced in the former decision on the subject in hand runs counter to an unbroken current of authorities, and fails to stand the test of reason. A critical examination of the cases cited in the former opinion to sustain the view then taken will show that they are distinguishable from the case at bar. We will review some of them.

In Pennsylvania Railroad Co. v. Snyder, 55 Ohio St. 342, 45 N.E. 559, 60 Am. St. Rep. 700, there was a traffic arrangement between the different railway companies forming a fast-freight line by which they were to share in the earnings of the transportation in proportion to the distance the car should be hauled over their respective roads. Under the arrangement, the Pennsylvania company, before delivering its cars to the Lake Shore company, agreed to have them properly inspected and put in safe condition for hauling. The car, when delivered to the Lake Shore company to be taken over its road, was defective and unsafe, which proper inspection would have discovered, and prevented the injury caused thereby to an employee of the Lake Shore company. The case differs from the present one. It was argued in the briefs in that case that, by reason of the traffic contracts between them, the two railroads were partners; and it is stated in the opinion that under the arrangement the Pennsylvania company, before delivering its cars to the Lake Shore road, was to have them properly inspected and put in safe condition for hauling. While there is much said in the opinion favorable to the defendant in error on the question before us, yet the peculiar contractual relations of the two roads as to inspection and payment of the cost of repairs do not exist in this case.

In the case just commented on, Moon v. Northern Pacific R. Co., 46 Minn. 106, 48 N.W. 679, 24 Am. St. Rep. 194, is cited and approved. That decision was given prominence as a precedent in the former opinion in this case. In the Moon case the Northern Pacific and Manitoba railroad companies were connecting carriers and interchanged cars at certain common points under a traffic agreement. According to a rule adopted by the companies, cars received and delivered were required to be inspected by the car inspectors of both on the transfer track, and, if any repairs were needed, they were to be made by the Northern Pacific company before they were transferred and received by the Manitoba company. Accordingly the car was so inspected by the car inspectors of both companies. It was examined by them together and they agreed that it was in good order. Afterward, while the car was being operated by the Manitoba company, the plaintiff's intestate was injured by a defective brake. It was claimed that the brake-staff was defective, and also that the car was not properly or carefully inspected by the inspectors of the respective companies.

It is to be observed that in the Moon case the inspection by the two companies was substantially one act. The Northern Pacific company, through its inspector, at the time the inspection was made, knew that no other or further inspection would be made for the protection of the employees of the Manitoba company. Hence, he is held in law to have anticipated that, if his inspection was careless or negligent, the employees of the Manitoba company would be subjected to whatever dangers should arise therefrom. The court said:

"In this case the inspection by the two companies was substantially one transaction, in pursuance of a mutual arrangement under which it was made jointly by the two car inspectors." (Page 100.)

The case of Heaven v. Pender, 11 L. R. (p. 503) Q. B Div. 359, was also cited in the former opinion, and is referred to in Moon v. Northern Pacific R. Co., supra. The facts on which that decision rested were as follows: The defendant, a dock-owner, supplied and put up a staging outside a ship in his dock under a contract with the ship-owner. The plaintiff was a workman in the employ of a ship-painter who had contracted with the ship-owner to paint the outside of the ship, and in order to do the painting the plaintiff went on and used the staging, when one of the ropes by which it was slung, being unfit for use when supplied by the defendant, broke, and by reason thereof the plaintiff fell into the dock and was injured. In that case the staging was supplied for immediate use, and it was not within the contemplation of the parties that the plaintiff's employer...