West Jersey & S.R. Co. v. Cochran

• Decision Date: 14 August 1920
• Docket Number: 2539.
• Parties: WEST JERSEY & S.R. CO. v. COCHRAN.
• Court: U.S. Court of Appeals — Third Circuit

266 F. 609

WEST JERSEY & S.R. CO. v. COCHRAN.

No. 2539.

United States Court of Appeals, Third Circuit.

August 14, 1920

Walter H. Bacon, of Bridgeton, N.J., for plaintiff in error.

Victor Frey and Augustus Trask Ashton, both of Philadelphia, Pa and James M. Davis, of Camden, N.J., for defendant in error.

Before BUFFINGTON, WOOLLEY, and HAIGHT, Circuit Judges.

WOOLLEY Circuit Judge.

E. I Du Pont de Nemours Powder Company loaded a Mobile & Ohio freight car with nitro-cellulose at its plant at Hopewell Virginia, and delivered it to the Norfolk & Western Railroad Company for shipment to its plant at Carney's Point, New Jersey. In its interstate journey the car passed over the roads of several intermediate carriers, and in due course came on the road of the West Jersey & Seashore Railroad Company, the terminal carrier. On May 30, 1916, this railroad company delivered the car to the Du Pont Company on its Interchange Track, located in the yard of its powder plant at Carney's Point. There, movement by the carrier ceased. From this track the Du Pont Company moved the car by its own engine and crew, and unloaded it on June 5. From that day until July 24, the Du Pont Company used the car, together with several hundred other cars similarly consigned, in its intra-mill service, without permission from anyone, yet paying the prevailing demurrage charges. During this period it was loaded and unloaded several times. On July 24, the car, loaded with cannon powder for the British Government, was being moved by the Du Pont Company in a train operated wholly by its employes, from a powder magazine to Deep Water Point, where the powder was to be transferred to a steamship. Cochran, one of the crew, in attempting to set the brake to prevent an impending collision with another car loaded with high explosives, pulled the brake wheel from the brake rod, and, falling to the ground, sustained injuries for which later he brought this suit.

Cochran brought this action, it is to be observed, not against his employer, but against that one of the several carriers engaged in the interstate shipment which had made delivery of the car to his employer, and charged it with negligence by two counts. By the first count he averred that the defendant carrier knew the Du Pont Company would cause the car to be moved and shifted about its private tracks by its employes; charged the defendant with the duty of inspecting the car before delivering it to his employer, relying upon Pennsylvania R.R. Co. v. Hummel (C.C.A. 3d) 167 F. 89, 92 C.C.A. 541, and McGinley v. Central Railroad of New Jersey, 235 Pa. 576, 84 A. 579, and alleged a breach of that duty by the defendant as the negligence which constituted the proximate cause of his injuries. The ground of action declared on by the second count, we shall consider presently. The court submitted the case to the jury on both counts. The verdict was for the plaintiff. To the judgment entered, the defendant sued out this writ of error.

The questions of fact mainly controverted at the trial were whether the brake was defective; and, if so, whether the defendant had properly inspected it before delivering the car to the consignee. On these issues the defendant assigns as error the court's refusal to grant its motion for a directed verdict on the ground that no negligence on its part had been shown. The testimony on these issues was in sharp conflict and was clearly susceptible of opposite findings according as the jury believed the witnesses for one party or the other. The court therefore committed no error in submitting to the jury the question of the defective brake and of the defendant's failure to perform its duty of inspection-- if the defendant owed that duty to the plaintiff. Whether the defendant owed such duty to the plaintiff is the point on which we think the case turned and with reference to which we are of opinion the trial court fell into error.

If the injury to the plaintiff had occurred when, as an employe of the consignee, he was unloading the car, Pennsylvania Railroad Co. v. Hummel (C.C.A. 3d) 167 F. 89, 93, 92 C.C.A. 541; Rick v. N.Y., C. & St. L.R.R. Co., 232 Pa. 553, 81 A. 650, or when, as such employe, he was engaged in moving the car from the delivery siding to an unloading siding, McGinley v. Central Railroad Co. of New Jersey, 235 Pa. 576, 579, 84 A. 579--unloading the car or moving it to an unloading track being in each instance a purpose for which the defendant had delivered the car-- the duty of inspection which the defendant owed the consignee would manifestly have extended to its employe. So long as the car was held or used for one of these purposes, a breach of that duty by the defendant might with equal certainty have been the proximate cause of a consequent injury. But when the transaction of carriage had been completed by unloading the car, and the consignee had taken over the empty car for new purposes, such, as in this instance, for its own business of intra-mill trans partition, there arose a new situation involving changed relations and new duties as affecting the employe of the consignee operating the car. The consignee, so using the car, then assumed the primary duty of a master to give his servant reasonably safe instrumentalities with which to work, and, such being a freight car, it owed him the duty of inspecting the car to that end. The consignee master could not in such case avoid performance of its duty of inspection because a like duty had previously devolved upon another; and if it failed in performing that duty, its failure, and not that of the other, was the negligence of which the employe should complain.

While a carrier's duty of inspection extends in some instances to an employe of a consignee, it would seem that it does so only when a duty of the consignee to exercise like care for its employe has not arisen. The Supreme Court of Pennsylvania in McGinley v. Central Railroad Co. of New Jersey, supra, and this court in Pennsylvania Railroad Co. v. Hummel, supra expressly held the carrier in each...