Waldron v. Director General of Railroads

• Decision Date: 06 April 1920
• Docket Number: 1777.
• Citation: 266 F. 196
• Parties: WALDRON v. DIRECTOR GENERAL OF RAILROADS.
• Court: U.S. Court of Appeals — Fourth Circuit

266 F. 196

WALDRON v. DIRECTOR GENERAL OF RAILROADS.

No. 1777.

United States Court of Appeals, Fourth Circuit.

April 6, 1920

George W. Howard, of Welch, W. Va., for plaintiff in error.

Graham Sale, of Welch, W.Va. (Sale & Tucker, of Welch, W. Va., and F. M. Rivinus, of Philadelphia Pa., on the brief), for defendant in error.

Before KNAPP and WOODS, Circuit Judges, and WADDILL, District Judge.

WOODS Circuit Judge.

The plaintiff, an employe of the Solvay Collieries Company alleges liability of the Director General of Railroads for the loss of his arm in the operation of a coal car, on the ground that the accident was due to a defective brake on the car. The controlling question is whether the District Court was right in directing a verdict for defendant on the evidence offered by the plaintiff. Plaintiff's case was as follows:

The Norfolk & Western Railroad furnished on a side track cars to be loaded with coal at the tipple of the Solvay Collieries Company. The cars were selected by the railroad company without suggestion from the coal company. The railroad company knew they were loaded on a track of 2 per cent grade, while they were held by brakes. On May 30, 1919 plaintiff and Ed Clifton, his assistant, were engaged in loading a car from the tipple. When the car was about half loaded, Clifton, who operated the brake, told plaintiff it was weak, and he did not know whether it would hold or not. It was especially important to keep the coal car in control, because there was a car below on the same track from which several persons were unloading furniture. Under these circumstances, as a precaution, the plaintiff placed a scotch on the track about a car length below to stop the car in case the brake should not hold. In the course of loading the car, it was necessary to move and stop it several times. The brakes held the car at these stops. When the loading was completed, and Clifton released the brakes, so that the car might move forward by gravity, he called to the plaintiff that the brakes would not hold. Seeing the car was not controlled by the brake and the scotch, which he had placed on the track, and that it would collide with the furniture car in which men were working, the plaintiff, in the effort to control the car, placed another piece of timber before one of the rear wheels of the truck. In doing so his hand was caught by the wheel and his arm cut off. An experienced machinist and inspector examined the brake after the accident, and found a slack in the brake due to worn shoes.

When the empty coal cars were placed on the siding, the coal company took entire charge of them to the exclusion of the railroad company until they were returned loaded with coal for shipment. The railroad company sometimes furnished cars with defective brakes, and sometimes with no brakes. Plaintiff was in charge of the tipple, and either he or his helper, Clifton, was expected by the coal company to examine the brakes before the loading commenced. The outside foreman of the coal company testified:

'I give them instructions that, if they found a car that they couldn't load, to drop it on through. We have had cars in there without any brakes on them at all. If there was plenty of cars, and if there was a shortage of cars, to try to load everything there was there, if they could do it.'

He testified further there was no shortage of cars on that day. Plaintiff, according to his testimony, did not know very much about brakes, and did not examine them.

The following statement of the law will hardly be questioned, as required by reason and comparison of the principles announced in the cases below cited: A carrier, furnishing cars to be loaded for shipment, is liable for injuries to the shipper or his employe, due to a defect in the car which might have been discovered by reasonable care in inspection. The carrier cannot impose this duty to furnish cars reasonably safe on the shipper, to its own relief from liability for injuries to an employe 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 employe to be loaded, the carrier and shipper are both liable to the injured employe; for the proximate cause of the injury is the defective car. But as between the carrier and the shipper the liability of the carrier is primary, for the reason that the shipper has a right to assume that cars furnished have been inspected by the carrier and found reasonably safe. While neither the shipper nor his employe owe any duty to the carrier to search for...