Watkins v. Continental Can Co.

• Decision Date: 28 December 1963
• Docket Number: No. C-15-WS-63.,C-15-WS-63.
• Citation: 225 F. Supp. 449
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Robert Lee WATKINS v. CONTINENTAL CAN CO.

225 F. Supp. 449

Robert Lee WATKINS v. CONTINENTAL CAN CO.

No. C-15-WS-63.

United States District Court M. D. North Carolina, Winston Salem Division.

December 28, 1963.

COPYRIGHT MATERIAL OMITTED

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, Norwood Robinson, Winston Salem, N. C., for plaintiff.

Deal, Hutchins & Minor, Winston Salem, N. C., for defendant.

HAYES, District Judge.

At the close of plaintiff's evidence defendant moved for a directed verdict in its favor because the evidence failed to establish any actionable negligence against the defendant, and on the ground that plaintiff's evidence affirmatively showed that he was guilty of contributory negligence proximately causing his injury. Ruling on the motion was reserved until the close of the evidence under Section (b) of Rule 50. The motion was renewed at the close of all of the evidence and again the court reserved its ruling, permitting the jury to have the case. It returned a verdict in favor of plaintiff.

In apt time defendant filed motions in its favor notwithstanding the verdict, and a motion to set aside the verdict and for a new trial. The procedure complies with Rule 50 of Federal Rules of Civil Procedure as construed by the Supreme Court in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Johnson v. N. Y. etc. R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77.

The motion for a judgment N.O.V. tests the legal sufficiency of the evidence to support the verdict. The test is one of law, while the motion for a new trial is discretionary. McCracken v. Richmond, F. & P. R. Co., 4 Cir., 240 F.2d 484, 488. Judgment should not be entered if there is any substantial evidence to take the case to the jury when considered in the light most favorable to the party against whom the judgment is entered, and any conflict in evidence must be resolved in his favor and every conclusion or inference that can be legitimately drawn therefrom. Tedder v. Merchants & M. Ins. Co., 251 F.2d 250, at 254 (4cca); Burcham v. J. P. Stevens & Co., 209 F.2d 37(4cca). It should be granted if the evidence amounts to no more than a mere scintilla. Atlantic Coast Line R. Co. v. Collins, 235 F.2d 805 (4cca). In this case judgment was reversed and trial court was directed to enter judgment in favor of defendant.

The defendant on Feb. 17, 1961 shipped from its plant at Haverhill, Mass. to D. D. Beam and Sons at Winston Salem, N. C. a box car load of paper consisting of eighty rolls. This car was practically new bearing the date of August — 1960. Its inside measurement was fifty feet six inches in length and nine feet and four inches wide. A single layer of eight rolls of paper filled the car from side to side. There were ten rows which filled the car from end to end, excepting about six inches. The rolls of paper were round, weighing from 750 lbs. to 980 lbs. each. They averaged about five feet in diameter. The paper was machine cut 135/16 inches wide and was wrapped around a core as tightly as possible and was solid and practically as hard as a board. Eight rolls were put in a row across the car, by first completing the first row at each end of the car. In placing the next rows, each row was started against the wall and at the opposite side of the car. In this way the fifth row from each end made the two center rows. It will be seen that the eight rolls, standing side by side occupied 106½ inches, if the rolls were wound up perfectly straight but the evidence showed that some of the rolls bulged a little near the core. As the rolls were loaded the first row started against the side of the wall of the car which left a few inches of open space at the opposite end and the second row would be started at the opposite side staggering the rows, this way each row served to brace the row behind it. It was customary to insert in front of the rolls in each row pieces of 2 × 4 lumber of varying length but the pieces were driven tightly under the rolls. These pieces were called chocks. This method was followed on each row but a different method called bracing was used between the number five rows. Between these two rows triangular blocks, cut to fit the vacant space between these rows were inserted tightly and nailed to the floor of the car. Two pieces of 3 × 4 × 54 inches in length were placed in front of each of these rows and securely nailed. The total length of these two pieces was 108 inches, leaving only four inches from wall to wall but there was an inch or more of space between them at the center. These pieces between the center rows exerted pressure against all of the rolls in each end of the car, and normally held each roll securely.

The plaintiff introduced answers to interrogatories and the deposition of Ira B. Clairidge whose duty was to inspect and install the braces between the two center rows. He loaded two hundred cars a year and had averaged this number for ten years. The strongest evidence in favor of the plaintiff was his statement that if the load was properly braced it would be impossible for a roll to fall out of the door. The evidence about the function of the chocks was confusing; in some instances it appeared that the chock under each roll was to hold it in place, some of it indicating that their only function was to hold them from rolling forward until the braces at the center could be installed and thereafter they served no useful purpose. There was evidence to show that chocks were placed under rolls when they were loaded, and evidence to show that there was no chock in front of the roll immediately behind the end roll in row No. 5, the roll that fell out and injured plaintiff when the door was opened. There was evidence tending to show that the 3 × 4 in the center of the car was too short and did not extend toward the door enough to be in front of the roll that fell out.

When considered in the light most favorable to plaintiff these conflicts created a jury question as to the negligence of the defendant. While the regulations of the railroad associations do not require the high standard of care employed by defendant, that does not exclude the fact that this defendant had pursued this method for ten years in shipping two thousand car loads. The evidence tending to show that the brace in this car did not extend far enough to be under the roll that fell out raises a jury question as to the failure of the defendant to exercise its own standard of care in this instance. Admittedly, the question of foreseeability is extremely close. The braces were intended to prevent the roll of paper from rolling forward, not falling sidewise.

The standard of care required of the shipper is that of a reasonably prudent man which does not necessarily confine it to the standard approved by the Association of railroads or to the higher standard customarily employed by defendant.

The defendant contends that the opinion of shipper that a roll would not fall out if properly braced is insufficient, contending that such an opinion has no substantial probative value when considered in the light of all the evidence, citing Austin v. Overton, 222 N.C. 89, 21 S.E. 2d 887; Brown v. Wood, 201 N.C. 309, 160 S.E. 281; Lucas v. White, 248 N.C. 38, 102 S.E.2d 387; Jones v. Schaffer, 252 N.C. 368, 114 S.E.2d 105 and Burgess v. Mattox, 260 N.C. 305, 132 S.E.2d 577. But the evidence here presents a stronger case for the plaintiff as to the negligence of the defendant, and is not controlled by the above authorities.

The plaintiff was an experienced employee of W. A. Collins and Co., a draying company, with more than five years experience. He was the man in charge of unloading this car, having two fellow laborers under his control, to assist in the unloading. He had unloaded about twenty similar car loads of paper. He therefore knew the braces on the floor secured the rolls of paper. In this connection, Clairidge the inspector said that he had never had a complaint of damage to paper or persons on a single one of the 2000 cars he had braced.

On March 8, 1961, the plaintiff with his two helpers took a truck to the freight car to unload the paper. As the agent of the consignee he had the control and management of the car and its cargo and was free to choose the method and manner of unloading it. The plaintiff with a crow bar broke the seal on the car and prized the door open about 15 inches and saw rolls of paper standing upright, said everything looks Ok. and called the men to help him shove the door open. There were two doors on each side of the car, each eight feet wide. The door on his right was a corrugated door; the one on the left was smooth. Before lunch on the day of the trial he insisted repeatedly that it was the left door he prized open, but he testified in the afternoon that he was mistaken, that it was the corrugated door he prized open to peep in. He said he saw the tops of some rolls of paper but made no claim of seeing all of them or of even looking more than casually. But he repeatedly testified that he never thereafter looked into the car or on the floor where the braces and chocks could be seen or where he could have discovered they were missing or of the position of the roll that fell out.

He said it was desirable when you started to open a freight car door which has metal tracks on the side of the car with rollers mounted on the door, to keep it going; if you let it stop, you might have to pinch it with a crowbar to start it again. So he called one of his helpers to pull at the right end of the door and the one in the center of the door to hold the lever and pull, while he pushed at his end of the door. These three were engaged in ramming the door open, and at the instant it was opened, the end roll in No. 5 row fell out, striking plaintiff on his left shoulder, knocking him down, and falling on him. He said the instant he looked up, he saw it falling, but that he could not get out of the way. Fred Johnson who was at the center of the...