Yandell v. National Fireproofing Corp., 522

• Decision Date: 16 December 1953
• Docket Number: No. 522,522
• Citation: 79 S.E.2d 223,239 N.C. 1
• Court: North Carolina Supreme Court
• Parties: YANDELL, v. NATIONAL FIREPROOFING CORP. et al.

Page 223

79 S.E.2d 223

239 N.C. 1

YANDELL, v. NATIONAL FIREPROOFING CORP. et al.

No. 522

Supreme Court of North Carolina.

Dec. 16, 1953

W. S. O'B. Robinson, Jr., Charlotte, and W. B. McGuire, Jr., Charlotte, for defendants Piedmont & Northern Railway Company and S. P. Kestler, appellees.

Helms & Mulliss, Charlotte, and Garland & Garland, Gastonia, for defendant National Fireproofing Corporation, appellant.

ERVIN, Justice.

The only question arising on this appeal is whether Judge Pless erred in overruling the demurrer of the National Fireproofing Corporation to the cross-action of the Piedmont & Northern Railway Company and S. P. Kestler.

The National Fireproofing Corporation makes these assertions by this demurrer:

1. That the allegations of the cross-action do not state facts sufficient to subject the National Fireproofing Corporation to liability to the Piedmont & Northern Railway Company and S. P. Kestler for either indemnity or contribution in case the plaintiff recovers judgment against the Piedmont & Northern Railway Company and S. P. Kestler upon the cause of action for actionable negligence alleged against them in the complaint.

2. That the former judgment sustaining the former demurrer of the National Fireproofing Corporation to the complaint constitutes an estoppel by judgment, barring the Piedmont & Northern Railway Company and S. P. Kestler from prosecuting their cross-action against the National Fireproofing Corporation.

The demurrer rests its first assertion upon two theories, which are alternative in character. It asserts primarily that the allegations of the cross-action do not disclose the breach of any duty owed by the National Fireproofing Corporation to the plaintiff, and that consequently they fail to charge the National Fireproofing Corporation with any negligence whatever. It insists secondarily that although the allegations of the cross-action may charge the National Fireproofing Corporation with negligence, they make it affirmatively to appear that negligence on the part of the Chesapeake & Ohio Railway Company, the Piedmont & Northern Railway Company and S. P. Kestler constituted intervening or superseding efficient causes, which insulated the negligence of the National Fireproofing Corporation and exempted it from all legal accountability, either direct or indirect, for the plaintiff's injuries.

In passing on the validity of the first assertion of the demurrer and the theories underlying it, we necessarily look to the relevant rules of law prescribing the duties of carriers and shippers by rail with respect to the employees of consignees who unload railroad cars, all of the factual allegations of the cross-action, and such of the factual averments of the complaint as charge the Piedmont & Northern Railway Company and S. P. Kestler with actionable negligence.

An initial carrier by rail, which furnishes a car for moving freight, owes to the employees of the consignee, who are required to unload the car, the legal duty to exercise reasonable care to supply a car in reasonably safe condition, so that the employees of the consignee can unload the same with reasonable safety. Copeland v. Chicago, B. & Q. R. Co., 8 Cir., 293 F. 12; Missouri Pac. R. Co. v. Armstrong, 200 Ark. 719, 141 S.W.2d 25; Powell v. Pacific Naval Air Base Contractors, 93 Cal. App.2d 629, 209 P.2d 631; Atlanta & West Point R. Co. v. Creel, 77 Ga.App. 77, 47 S.E.2d 762; Jackson v. Chicago, M., St. P. & P. R. Co., 238 Iowa 1253, 30 N.W.2d 97; Louisville & N. R. Co. v. Freppon, 134 Ky. 650, 121 S.W. 454; Corbett v. New York Central & H. R. R. Co., 215 Mass. 435, 102 N.E. 648; D'Almeida v. Boston & M. R. R., 209 Mass. 81, 95 N.E. 398, Ann. Cas. 1913C, 751; Ladd v. New York, N. H & H. R. Co., 193 Mass. 359, 79 N.E. 742, 9 L.R.A.,N.S., 874, 9 Ann.Cas. 988; Parker v. Grand Trunk Western R. Co., 261 Mich. 293, 246 N.W. 125; Stoutimore v. Atchison, T. & S. F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658; Allen v. Larabee Flour Mills Corporation, 328 Mo. 226, 40 S.W.2d 597; Dominices v. Monongahela Connecting R. Co., 328 Pa. 203, 195 A. 747; 75 C.J.S., Railroads, § 924. See, also, the cases collected in this annotation: 152 A.L.R. 1313. A delivering carrier by rail, which delivers to the consignee for unloading a car received by it from a connecting carrier, owes to the employees of the consignee, who are required to unload the car, the legal duty to make a reasonable inspection of the car to ascertain whether it is reasonably safe for unloading, and to repair or give warning of any dangerous condition in the car discoverable by such an inspection. Erie R. Co. v. Murphy, 6 Cir., 108 F.2d 817, 126 A.L.R. 1093; Missouri Pac. R. Co. v. Sellers, 188 Ark. 218, 65 S.W.2d 14; Chicago, R. I. & P. Ry. Co. v. Lewis, 103 Ark. 99, 145 S.W. 898; Butler v. Central of Georgia Ry. Co., 87 Ga.App. 492, 74 S.E.2d 395; Atlanta & West Point R. Co. v. Creel, supra; Roy v. Georgia R. & Banking Co., 17 Ga.App. 34, 86 S.E. 328; Ruiz v. Midland Valley R. Co., 158 Kan. 524, 148 P.2d 734, 152 A.L.R. 1307; Folsom v. Lowden, 157 Kan. 328, 139 P.2d 822; Willis v. Atchison, T. & S. F. Ry. Co., 352 Mo. 490, 178 S.W.2d 341; Markley v. Kansas City Southern Ry. Co., 338 Mo. 436, 90 S.W.2d 409; Griffin v. Payne, 95 N.J.L. 490, 113 A. 247; Spears v. New York Cent. R. Co., 61 Ohio App. 404, 22 N.E.2d 634; Ambrose v. Western Maryland Ry. Co., 368 Pa. 1, 81 A.2d 895; 75 C.J.S., Railroads, § 924. See, also, the cases collected in this annotation: 126 A.L.R. 1095.

Since it is not engaged in operating a railroad, the law does not put on the shipper of freight the specific duties owing by carriers by rail to the employees of a consignee who unload railroad cars. But it does lay on the shipper the general duty so to conduct its business as not negligently to injury another by any agency set in operation by it. Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551; 65 C.J.S., Negligence, § 4.

While diligent search by counsel and court fails to unearth a single decision dealing with the exact factual situation presented by the pleadings in this case, violations of its general duty not to injure another by a negligent act are adjudged sufficient under somewhat similar circumstances to impose legal liability upon shippers loading railroad cars for resultant personal injuries to others. It is held, for example, that where 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 the shipper are both liable to the injured employee; for the proximate cause of the injury is the defective car. Chesapeake & O. Ry. Co. v. Cochran, 4 Cir., 22 F.2d 22; Waldron v. Director General, 4 Cir., 266 F. 196; Markley v. Kansas City Southern Ry. Co., supra; 44 Am.Jur., Railroads, section 433. It is settled, moreover, that where the carrier furnishes a proper car to the shipper for loading, and the shipper loads it in a negligent manner, the shipper is liable for injuries caused by his negligence to an employee of the consignee who undertakes to unload the negligently loaded car. Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 197 N.E. 578. See, also, in this connection: 74 C.J.S., Railroads, § 371.

In our judgment, there is no distinction in principle in so far as the shipper is concerned between these rulings and a case where the shipper loads a railroad car with actual or constructive knowledge that it is so defective as to be dangerous for unloading and in that way causes injury to an employee of the consignee who undertakes to unload it. Our opinion on this score is in harmony with that of the writers of the American Law Institute's Restatement of the Law of Torts, who give us this supposititious case by way of illustration: 'The A Coal Company sells coal to B Company, a factory owner, to be delivered on the private siding of the B Company by the C Railroad Company. The cars are supplied by the C Company. A reasonably careful inspection made while the cars are being loaded by the A Company would have disclosed a defect which made the cars dangerous for unloading. D, an employee of the B Company, while unloading the cars on B's private siding is hurt because of this defect. The A Company is liable to D, although the B Company is regarded as under a duty, before turning the car over to its employees for unloading, to make an inspection which would have disclosed the defect. ' Am.Law Inst., Restatement of the Law of Torts, Vol. 2, Section 393.

It would unduly prolong this opinion without accomplishing any compensating good to analyze in detail all of the factual allegations of the cross-action, and such of the factual allegations of the complaint as charge the Piedmont & Northern Railway Company and S. P. Kestler with actionable negligence. When these...