293 F. 12 | 8th Cir. | 1923
This action was brought against Chicago, Burlington & Quincy Railroad Company and Chicago & Northwestern Railway Company to recover damages on account of injuries received by John Copeland at Omaha on October 4, 1917, while he and Charles Smith were attempting to open a sliding door on the side of a box car for the purpose of unloading a shipment of automobiles contained in it. While Copeland and Smith were pushing back one of the doors an iron plate in the frame above fell and struck Copeland on the head, and the negligence alleged was the failure of defendants to discover that the nuts on the downward ends of four bolts that passed through the frame and plate to hold the plate in place were off, and in not replacing the nuts on the bolts. It was charged in the complaint that the absence of the nuts was open and apparent to defendants. The car belonged to Chicago & Northwestern, ft was stipulated that it was in the possession of the Erie Railroad prior to September 20. 1917, but for how long before that it was not stated; that on September 20th it was in the possession of the Pennsylvania Railroad at Indianapolis, and that road furnished it to the Cole Motor Company for loading with automobiles to be shipped to Omaha. When the car was loaded the Pennsylvania transported it to Chicago, and there delivered it to Chicago & Northwestern, which transported it to Omaha, where it arrived on October 2d and. was turned over to the Chicago, St. Paul, Minneapolis & Omaha Railway Company, and that company placed it on the transfer track in the north yards at Omaha, from which it was taken by the Burlington on October 3d and set at a warehouse at S :30 P. M. of that day for unloading. The car as set stood east and west, and the platform on which the automobiles were to.be unloaded was on its south side. Smith testified that when he got to the warehouse about 7 o’clock on the morning of October 4th the doors of the car. were closed. He made no statement as to whether there were then seals on the doors, nor whether he made any observations in that respect. The warehouse foreman testified that the warehouse record had this notation:
“10 — 3—5:30 119458 O&NW. 10 — 4—12 seal south door open. 2575535 NW.”
In answer to a question as to what sort of a record he kept of incoming cars at the warehouse, he answered, “A car number, initials and the seals.” He further said the notation in the record was in his handwriting, and that it meant there were no seals on the south side of the car, but he did not state the day or hour at which the information as to the seals disclosed by the notation was obtained. It would seem from the notation that this information was gained on October 4th and not on the 3d. He further said that he made the record when cars are set at the warehouse platform, and that this car was set at the platform at 5 :30 P. M. on October 3d. Inasmuch as it was his duty, according to his testimony, to put in his record the car number, initials and seals, and to do so at the time the car was set, it would appear from the record he made of date October 3d that there was nothing to be noted
“Q. Just so you could, see that it was open? A. Yes, sir.”
But he did not say when it was in that condition, whether on October 3d or 4th, nor at what hour, nor whether that statement was on his observation or a deduction from his notation in the warehouse record of October 4th. We cannot find any testimony from which it could be reasonably found as a fact that the doors of the car had been opened or the seals on the doors had been broken between the time it was loaded at Indianapolis on September 20th and the forenoon of October 4th. No inspection of the car from the outside after it was loaded and sealed at Indianapolis would have shown or suggested that the defect complained of existed. There would have been nothing to indicate that the doors and the frame work around them were not in proper condition, nor that the doors could not be opened and closed easily and with safety. No inspection would have disclosed that the nuts were not on the bolts, short of going inside the loaded car, if that could have been done, and making the minutest examination, and perhaps not then without a removal of the post which stood immediately under and in contact with the plate.
The errors assigned áre all directed to the action of the court in directing verdicts for both defendants on the case thus made by the plaintiff below.
“It was defendant’s duty to deliver a car that was in a reasonably safe condition to be used for the purpose intended.”
In Waldron v. Director General (C. C. A.) 266 Fed. 196, the principle is stated this way:
“A carrier * * * is liable for injuries to the shipper or his employé, due to a defect in the car which might have been discovered by reasonable care in inspection.”
Affirmed.
<gx^>For oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes