195 A. 747 | Pa. | 1937
Plaintiff, an employee of Jones Laughlin Steel Corporation, was injured while unloading a tank car at the Hazelwood polishing mill of that company on August 20, 1930.
The car was the property of General Chemical Company, but since 1926 had been under lease to Jones Laughlin Steel Corporation. It was used for the transportation *205 of sulphuric acid. On the top were two caps, one closing the vent of the acid line, the other of the air line. The acid line is the pipe through which the acid is unloaded; the air line allows accumulated fumes to escape so as to prevent the development of excessive pressure within the tank, and it also serves as the duct through which, in unloading, air is driven into the tank in order to force the acid out. As a customary safety measure, the cap on the air line either contains an opening at least two inches in diameter, or is fitted with a disk so constituted as automatically to rupture at a given pressure. About a month before the occurrence of the accident, the air cap on this car fell off and broke, and an employee of Jones Laughlin Corporation took a sleeve, screwed into it a solid iron plug in which he drilled a small hole, and put it on as a replacement of the broken cap. This was a defective and inadequate substitution, especially as the perforation became clogged with sulphate.
On July 29, 1930, the car was loaded with sulphuric acid by employees of Jones Laughlin Corporation at its by-products plant, and defendant Monongahela Connecting Railroad Company, a common carrier, was directed to haul it to the corporation's polishing mill, a distance of about half a mile. It will be noted that the by-products plant and the polishing mill were merely different departments of Jones Laughlin Corporation. Defendant transported the car on that day to its own yards adjacent to the polishing mill, awaiting a switching order as to the placing of the car for the purpose of unloading. Such an order was not given by Jones Laughlin Corporation until the evening of August 19. Early the following morning defendant placed the car on one of its sidings immediately adjoining the tank of Jones Laughlin Corporation into which the acid was to be discharged. Defendant had no control over the unloading of the acid, and did not participate therein in any manner. *206
Immediately after the car was spotted a foreman of Jones Laughlin Corporation ordered plaintiff, together with another employee, to empty it. Plaintiff climbed upon the car and started to unscrew one of the caps; it blew off and the acid spurted out in large quantity. Plaintiff was dreadfully burned. He obtained workmen's compensation from his employer, Jones Laughlin Corporation, but brought the present suit to recover damages from defendant. Sufficient evidence was produced at the trial to relate the accident to the defective air cap, but there was considerable controversy as to whether plaintiff himself was negligent. The jury rendered a verdict for plaintiff. Defendant's motions for a new trial and for judgment n. o. v. were overruled. The present appeal rests primarily upon defendant's contention that it owed no duty to plaintiff and therefore the verdict cannot be sustained.
Up to a certain point the pathway leading to the solution of the problem involved is well defined. In Pennsylvania, as in other jurisdictions, it is settled that a railroad company, before hauling freight cars over its lines, must subject them to an inspection sufficiently thorough to ascertain whether there is any fairly obvious defect in their construction or state of repair which constitutes a likely source of danger. The real question is: to whom is this duty owed? Certainly to persons properly in or around the car during the course of transportation. Certainly also to employees of the railroad company, because of its duty at common law, as of other employers, to furnish its employees with a reasonably safe place to work: Dooner v. Delaware Hudson Canal Co.,
The vital fact in the present case, differentiating it from all these previous ones, is the identity of consignor and consignee. All that defendant here did, or was asked to do, was to haul the tank car from one plant or part of the Jones Laughlin establishment to another. Jones Laughlin Corporation not only knew of the defective condition of the car but had actually created it, and defendant delivered it to Jones Laughlin Corporation as consignee in the same condition in which it had received it from Jones Laughlin Corporation as consignor. Under such circumstances defendant should not be held liable for failure to have discovered the defect and to have warned the consignee's employees of danger.
What is the theory upon which liability ordinarily is imposed upon a railroad company if it delivers a defective car to be unloaded? Apparently, the carrier is regarded as representing to the consignee: "We are supplying this car (either owned by us or temporarily procured from a connecting carrier or from a private owner) and, as such supplier, we have made a reasonable inspection to enable us to assure you that the car is *208
safe for you and your employees to enter for the purpose of removing your merchandise." This implied assurance is the more necessary because the consignee himself is not obliged to make an inspection of the car before his employees unload it:Anderson v. Oliver,
In the present case the situation is entirely different. In a realistic sense defendant did not "supply" the defective car; on the contrary the car was supplied by the consignee itself. The duties which ordinarily attach, therefore, to the supplier of a chattel are not applicable. It would be a strained legalism to import an implied representation by defendant to the consignee that the car was in good condition, when the consignee had itself put the car in bad condition. Nor, as far as the consignee's employees are concerned, should defendant be held to have undertaken a duty in regard to them by reason of its having hauled the car from one plant or department of their establishment to another, any more than if the hauling had been merely from one part to another part of the same plant or from one group of the consignee's employees to another. Of course, the railroad company's duty would still remain as to its own employees.
Even were it conceded in this case that a duty of inspection rested upon defendant and that it failed in an obligation owed to plaintiff, the latter would still have no right of recovery. If a carrier delivers to a consignee an uninspected car which is a potential source of danger to one unloading it, such act ordinarily would be the proximate cause of an injury resulting from a defect in the car. As already stated, no duty of inspection rests *209 upon the consignee, and even if there were such a duty and it were unperformed, the negligence of the carrier and of the consignee might be regarded as concurrent and as fastening liability upon both.2 But where, as in the present case, the consignee, by its employee, itself created the defect and nevertheless, by its foreman, ordered plaintiff to go upon the car and unload it, any prior negligence on the part of defendant was thereby superseded, because the consignee was an intervening human agency which, with full knowledge of the situation, by its act transformed a potential danger into an accident, and thus interrupted the chain of causation. If Jones Laughlin Corporation had deliberately caused plaintiff to be pushed into a car, known to it to be defective and out of repair, undoubtedly such an act would be regarded in law as the sole cause of any accident which followed, since the proximate cause is not the one supplying the condition but the one producing the injury. Between physically thrusting plaintiff into the car, and ordering him in, knowing that as an employee he was bound to obey, and would obey, the order, no ground for legal distinction can exist. If the test as to whether one act of misfeasance or negligence supersedes another is whether it was foreseeable by the first *210 tort-feasor, it is clear that while a railroad company might be expected to foresee the failure of a consignee to inspect a car delivered for unloading, it could not reasonably be held to foresee that a consignee which itself owned the car and therefore presumably had full knowledge of its condition, would, in violation of the duty owed to an employee, order him to unload it if defective, and especially if the defect had actually been within the cognizance of the consignee.
The principles thus indicated are discussed more fully inKline v. Moyer,
The legal responsibility for the regrettable accident to plaintiff in the present case rests solely upon his employer, Jones Laughlin Steel Corporation. The court below should have granted the motion of defendant for judgment n. o. v.
Judgment reversed and here entered for defendant.
