Hanson sought recovery for personal injuries. A peremptory instruction against him was given and the judgment rendered upon a verdict in response was affirmed by the Court of Civil Appeals.
Inter alia, common carrier obligations include, the duty to supply such ears and equipment as may be reasonably suitable and safe for carriage and delivery оf the particular sort of commodity offered for conveyance. 4 R. C. L. 682. That duty in its direct aspects is owed to the shipper and consignee’ and has particular reference to final delivery of the goods in the same con
The differences in the situation of the various carriers has reference to the means of knowledge, and, therefore, to the proof rather than to the standard of conduct.
Two flat cars coupled together (as a “twin-car”) were used as means of conveyance. The lading consisted of 53 logs (each 50 to 55 feet long, averaging 18 inches in diameter and weighing from 2,000 to 4,000 pounds) so placed on the “twin-ear” as to compose a mass about 55 feet long, 8 feet high, 10 or 12 feet wide, with much the larger part resting upon one of the cars. The weight of the mass ranged between 106,000 to 212,000 pounds. To hold it in place two pine saplings (from 4% to 7 inches in diam-ter according to various estimates) were inserted in brаckets fastened to each side of each of the two cars. Those standards were not otherwise attached to the bodies of the cars so as to prevent upward shifting and possible resultant weakening or escape. Each standard was attached to its correspondent across the car by three strands of wire (about the size of a “three penny nail”) “twisted together” at each of three positions, viz., between the botton tier and the one next following, between the third and fourth tiers (from the bottom of the ear) and immediately above the top tier. The cars, thus loaded, were to be transported several hundreds of miles, and with such switching at least as would be necessary to interchange as between five carriers.
The standards, or devices answering their purpose, whether inserted by the consignor or the initial carrier, must be regarded as а part of the equipment, for, manifestly, the commodity tendered by the consignor and accepted by the carriers was not subject to transportation and delivery without them. That it was so regarded, in point of fact,'is shown by the testimony (that of Court and Stauder, for example) which exhibits special “loading rules” prescribed by the American Railway Association, Mechanical Department, for observance by the shipper (who loаds) and the carrier and which %deal with the matter of standards in such manner as to require the carrier to reject a “load” and to set it back for “readjustment” if proper standards, bracing, etc., do not appear, as also by the testimony of most (if not all) of the “inspectors” and conductors of the various railway companies to the general effect that their,duties in respect to- such shipments included special attention to standards and bracing and position of the “load.”
If no more than what has been stated were shown, it could not be said, as a matter of law, that the “twin-car” was sufficiently or properly equipped, even though it be true that numerous inspections were made between points of origin and destination and those who made them pronounced the cars and equipment and “load” in good and proper condition. Such reports of actual inspections would (in touching sufficiency of equipment) be no more than conclusions against whose probative force there would arise such inferences as may be predicated in the great weight of the “load” and its inevitable tendencies to shift en masse as well as by parts in response to the movements and shocks to which the cars were subject. The holding strength of the eight pine saplings, as used, is not shown, and thеre is for them in judicial knowledge no such characteristics as to justify a fiat of invincibility. Photographs of the cars in evidence exhibit many unfilled brackets, and, for aught that appears, additional standards or additional bracing could have been used without undue burden.
But in respect to that subject there is the testimony of Kelly, a man apparently qualified to have and to express an opinion, to the effect that there ought to have been sufficient standards wired together crosswise between each tier of logs. If it b'e said that the rules were met, it remains true that the rules might be insufficient, for the “man on the spot,” who makes or applies rules, may be an'expert and use his best judgment and yet be negligent. The Germanic,
The standards used were (as indicated) merely set into the brackets. There is testimony (that of Anderson, “ear foreman” for the final carrier) that they were “tapered” at the lower ends so as to fit the brackets. It might be.assumed, we think, that swaying
The “loading rules” mentioned require that piling be placed “butt to top and top to butt”; that is, alternation in each tier of large ends and small ends. Manifestly, the purpose is to secure, so far as possible, an evenly balanced mass. And that design, in part at least, has relation to the character, number, strength, and bracing of the standards or other holding devices. Inspectors for the consignor and initial carrier testified that this “loаd” was so placed; yet there is in the testimony of Kelly and that of Cook, witnesses for the plaintiff, statements which might properly be taken by a trier of facts as showing that “butts” very greatly preponderated in that part of the “load” which rested upon the most heavily taxed car. Existence of a recognized rule and proof ‘of conformity would not inevitably disprove improper loading in this respect, but its existence and the claim оf observance would be some evidence that, in fact, the “load” ought to have been made that way. And the testimony of Kelly and Cook is some evidence of failure to do what ought to have been done.
The “twin-car” was set on the spur track in the forenoon, and its unloading was undertaken about noon of the same day. The cross wires above the top of the “load” were cut and the standards on one side of the cars were cut at a point near the bottom of the top tier of logs. The cross wires immediately above the bottom tier, at least, were left-intact. Hanson and other employees of the consignee were upon the “load” using cant hooks to roll piling from the car. Six logs had been thus removed. As the seventh was being moved, each of the standards on one side of each of the cars parted at the top of its bracket, and the logs began to roll off the cars at that side and from the bottom of the load. That movement was very swift, and it continued until from one-half to two-thirds of the “load” escaped. Hanson and others went down with the piling; he was seriously injured, and the others were killed. That portion of the “load” which remaine'd on the cars was' four tiers high next to the standards on the opposite side (which remained intact), and some five or six logs wide at the bottоm, and three or four wide at the top. Photographs of the ears, etc., were taken soon after and were put in evidence by the defendants. Amongst other things, they appear to disclose the following: A part of one of the broken standards was left attached to what appears to be one of the rods‘which Anderson had placed, and the rod appears to extend outward and downward from the edge of the еar floor a foot or more in such position as to indicate that it had been loosened from its anchorage across the car; what appears to be the end of another of those rods is to be seen near the bracket of another of the broken standards, but -it is shown as free of any part of the standard, and a juror might properly conclude that Anderson failed to attach the nut, that the nut had in some way becоme loosened and removed, or that the outward pressure of the logs was great enough to force the nut (or the head) of the rod through the standard.
The direction and nature of the movement of the logs when the standards broke, the points of breakage (in view of upper bracing)', the fact that all of the standards across the cars remained intact, and the situation in which the rods were left are not without corroborative signifiсance in respect either to original and continued inadequacy (in quality or numbers) of the standards, defective attachment to the bodies of the cars, a cracked or otherwise weakened condition of the standards suffered en route (maybe, in making the holes for the rods), or unjustified failure to discover original inadequacy or impairment of equipment originally or en route.
Testimony was produced by the defendants which, for present purposes, may be taken as showing: (a) Usual inspection by consignor and carrier at point of origin and by each succeeding carrier and at various
The nature of the commodity and its position on the ears were such as to import a thought that the consignee’s agents probably would mount the “load” and sever and remove the wires (on top at least) and proceed to remove thе logs in the manner actually employed. That such presence and conduct is not within anticipation imputed to the carriers cannot be ruled, as a matter of law, with evidence such as has been stated in the record.
Each carrier had an interest in the entire movement and final delivery. ‘In the physical sense, too, each had its part in finally bringing the “load” and equiqment to the locus in quo and in thus subjecting Hanson to whatever peril lurked in the ears, “load,” and holding devices at the beginning of the movement. If defects occurred later, the carrier on whose lines that happened, and each subsequent one, likewise contributed to the final condition. The delivering carrier and two intermediate ones are defendants, and the negligence charged is in the pleading attributed to each and all of them. And for the reasons stated, we hold that negligence and proximate cause are issuable. Vide authorities reported and collated at page 857 et seq., 9 L. R. A. (N. S.), and at pages 123-129, 41 A. L. R.
Because the thing which produced the injury on account of which suit was brought in G., W. T. & P. Ry. Co. v. Wittnebert,
It will be understood, of course, that proximate causation attributable to acts done or omitted by others than the carriers after the “shipment” arrived at Corpus Christi is not affected by anything said herein.
We have not considered the matters of negligence as averred against Sumner-Sollitt Company, consignee, for the reason that we believe the peremptory instruction separately reqiiested by it was properly given! on grounds to be stated.
That company pleaded and proved its status of “subscriber” under the Workmen’s Compensation Law (title 130, R. S. 1925), proper reports of the injury, and adjustment of compensation therefor and payments (weekly for a while, and in final “lump sqm”) to Hansen by the “insurer.” Fox v. Dallas Hotel Co.,
Hanson suggests that he was, in effect, an employee of the railway сompanies and subject to the federal Employer’s liability Law (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665), and was, in fact and law, himself engaged in interstate commerce because the shipment which was being unloaded still had
The latter suggestion is foreclosed by previous decisions. Middleton v. Tеxas Power & Light Co.,
The proof and his averments show that he was an employee of Sumner Sollitt Company, who had the exclusive right to direct and who directed his employee movements, and that perforce, he was not an employee of the carriers, within the meaning of the federal Employer’s Liability Act. Robinson v. B. & O. Ry. Co.,
The “insurer,” United States Fidelity & Guaranty Cоmpany, intervened and claimed its right to subrogation. Article 8307, R. S. 1925, § 6a. Judgment was rendered against it, but it did not appeal.
The situation thus presented, however, left Hanson free to prosecute his claims against the carriers. There is to be found in section 6a, art. 8307, R. S. 1925, some language of different import, if separately considered; but when the entire section is viewed in the light of the general purposes and nature of the Workmen’s Compensatiоn Law, we believe the right persists. In that section it is declared that original election “to proceed at law against” a person not a party to the insurance arrangement shall cut off the right to “compensation under this law,” but there is no comparable declaration about the effect of an original claim of compensation. Compare the language of the two clauses of section 6, art. 12, of the Cоnstitution, and the particular effect produced by the affirmative declaration that fictitious stock shall he “void.” Washer v. Smyer,
In this situation, if Hanson secures a verdict, the court, in rendering judgment, should deduct from thе amount of damages found by the jury the amount of “compensation” paid.
We recommend that the judgments of the district court and Court of Civil Appeals as between Charles Hanson, plaintiff in error, and Morgan’s Louisiana & Texas Railway & Steamship Company, Galveston, Harrisburg & San Antonio Railway Company, San Antonio, Uvalde & Gulf Railway Company, and A. R. Ponder, its receiver, defendants in error, be reversed, that the cause as between those parties be remanded, and that in all other respects said judgments be affirmed. Whatever costs have been incurred by Súmner-Sollitt Company, defendant in error, should be assessed against Charles Hanson, plaintiff in error, and the balance against the defendants in error first named above.
The judgments of the district court and Court of Civil Appeals are reversed as to carriers, and the cause is remanded to the district court as between them and plaintiff in error, and said judgments in all other respects are affirmed, as recommended by the Commission of Appeals.