249 F. 308 | 5th Cir. | 1918
The American Cotton Oil Company, on March 16, 1914, contracted to purchase cotton seed oil from the Caldwell Cotton Oil Company of Vicksburg. It delivered to the latter company, on a spur of the Yazoo & Mississippi Valley Railroad, which connected with the plant of the Cotton Oil Company, one of its own oil tank cars, for the loading of the purchased oil. After loading, the car was delivered to the Alabama & Vicksburg Railway Company for shipment, and that company issued its bill of lading to the Caldwell Cotton Oil Company, “notify the American Oil Company at Cincinnati.” The Caldwell Cotton Oil Company drew its draft upon the American Cotton Oil Company, with bill of lading attached, and the draft was duly paid. The tank car was received, by the railway company and transported by it to Meridian,- Miss., where it was delivered to the Alabama Great Southern Railroad Company. The car moved from Meridian on March 27, 1914, and when it reached McClures, Ala., 40 or 60 miles from Meridian, it was discovered that the tank was leaking. The train was stopped and efforts made to prevent the leakage, but all the oil escaped. Suit was by the American Cotton Oil Company to recover from the two railroads the amount paid for the oil. The Alabama Great Southern Railroad Company filed a plea of the general issue, and gave notice, in accordance with the Mississippi practice, of what it .would undertake to prove, viz.: That by the terms of the bill of lading it was contracted by the Caldwell Cotton Oil Company and the railroad that neither the initial railroad nor any carrier in possession of the property should be liable for any loss thereto caused “by the act or default of the shipper or owner”; that the oil was loaded by the consignor, by its own employes and agents, and without any participation by the railroad company, into a car specially manufactured for receiving and transporting oil, which was the property of plaintiff, and furnished by it to the Caldwell Cotton Oil Company for the purpose of receiving the oil; that the tank was carelessly loaded by the agents and employes of the Caldwell Cotton Oil Company; that the inner valve was not closed; that the outer valve or discharge pipe beneath the car, through which the oil ■was intended to be drawn off, was closed by a cap screwed upon it, but that the threads were worn so that it was not tightly screwed on, by reason of which it fell off; that if the inner valve had been closed, the defect in the cap of the outer valve would have made no difference; that it had no means of knowing whether the inner valve had been closed or not; that the cap on the top of the car was screwed down
The allegations with reference to the sale of the oil, furnishing the car, delivery to the railroads, and the loss of the oil were proved. The tank car in which the oil was loaded was of steel. It was filled from the top and was designed to be emptied by a valve in the bottom. This valve was closed by a rod, which ran to the top of the car, held in place by a coilless spring. Underneath the valve was a cap that screwed from the bottom of the car. The cap was not designed to hold the contents of the car, but would have had that effect if-the screw threads had not been defective. The unscrewing of this cap w.ould not have the effect of emptying the car, the valve being in place.
The testimony indicates that the car was filled by two employes of the Caldwell Cotton Oil Company. One of these testified that, when they loaded the car, the first thing they did was to take the cap off. He then put the pipe in, and he states that he saw that the inner valve was in good condition. He said that he looked into the car with a light, but did not go down into it; that there was about an inch of something that looked like oil in the tank, and it apparently being clean cotton seed oil, he loaded on top of it. He said that to find out what was in the tank he raised the valve and let it fall back, and that it was left without any further examination.
The balance of the testimony is with reference to the investigations and examinations which were made and the testimony of persons who were familiar with cars of this character and the valves, used in this car. This testimony all indicates that, if the valve had been put properly in place, it could not have gotten out of its gasket, even with rough handling by the railroad. The evidence strongly indicates that, when the valve was pulled up by the employé of the Caldwell Company before loading, it did not get back properly into place. The evidence also indicates that the rap underneath, while it might have héld the oil, was not intended for that purpose, and that an inspection which would have disclosed a deficiency in this cap would not have suggested the necessity of making any change or repair in the car; it appearing that not infrequently these caps were unscrewed in transit.
If the defect in loading, or the defect in the car, had been apparent to the railroad company at the time of the acceptance of the car, the railroad company would doubtless be held responsible, notwithstanding the car had been chosen by the shipper and had been loaded by him. Even under such circumstances, to permit recovery by the shipper would involve a questionable policy. While there is every reason for holding the railroad companies to a very high degree of care in the exercise of their duties to the public, it can scarcely consist witli public policy to encourage the furnishing by shippers of bad cars or bad containers of any kind, or defective loading, by excusing them from the results of their negligence. No such question, however, arises in this case. The evidence would justify 'a finding to tlu: effect that the damage resulted from the negligence of the shipper in the loading, and that the negligence in the loading, whereby the valve was not properly seated in its gasket, could not have been ascertained by the railroad, except by unloading the car at a time when there was no apparent reason for unloading.
The following cases support the proposition that the carrier is not to he held responsible for loss occasioned by imperfect packing, or other carelessness on the part of the shipper: Carpenter v. Baltimore & Ohio Railroad Co., 6 Pennewill (Del.) 15, 64 Atl. 253; Pennsylvania Co. v. Kenwood Bridge Co., 170 Ill. 645, 49 N. E. 217; Klauber v. American Express Co., 21 Wis. 21, 91 Am. Dec. 452. The case of Gulf, Colorado & Santa Fe Ry. Co. v. Wittnebert, 101 Tex. 368, 108 S. W. 150, 14 L. R. A. (N. S.) 1227, 130 Am. St. Rep. 858, 16 Ann. Cas. 1153, involved a case of substantially the same character as this, and the ruling was in accord with the conclusion we have reached. There seems to be no adjudication by any federal court upon the subject, but we are entirely satisfied with the reasoning and conclusions of the state courts.
The instructions asked by defendants cannot be regarded as a request for the court to determine the questions of fact. The issues tendered by the defendant railroad company should have been submitted to the jury.
The case will be reversed for proceedings in conformity herewith,
Reversed.