26 F.2d 619 | 8th Cir. | 1928
The defendant in error, who was plaintiff below and will be referred to herein as the plaintiff, at the time of the injury on account of which this suit was brought, was employed by the Quality Coal Company, which was engaged in operating a coal mine near Arcadia, Kan. Cars for the transportation of coal mined by the plaintiff’s employer were supplied by the plaintiff in error, herein referred to as the
It is urged upon us by the defendant that the trial court erred in refusing to direct a verdict for the defendant. In support of this contention it is insisted by the defendant, first, that “even if the defendant was negligent as charged its negligence was not the proximate cause of plaintiff’s injury”; second, that “there was no privity of contract either between plaintiff and defendant and plaintiff’s employer and defendant, and therefore defendant owed plaintiff no duty”; and, third, that “the evidence was insufficient to show that the cotter pin was • defective prior to the delivery by the defendant of the ear upon the switch track in question, or that there was any such defect discoverable by proper inspection.”
1. Defendant’s argument that it was the duty of plaintiff’s employer to inspect the ear in question, and that its failure so to do constituted negligence, need not here be questioned. That negligence was not an intervening cause of plaintiff’s injury. It is a carrier’s duty tp use ordinary care to deliver ears reasonably safe for the use of shippers and their employees while the cars are being loaded or unloaded. Copeland v. Chicago, B. & Q. R. Co. (C. C. A.) 293 F. 12, 15. The employer’s duty to provide for the employee a safe place in which to work may.be added in the circumstances but does not supplant the carrier’s duty. “The carrier cannot impose this duty to furnish cars reasonably safe on the shipper, to its own relief from liability for injuries to an employee of the shipper. If 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 shipper are both liable to the injured employee; for the proximate cause of the injury is the defective car. But as between the carrier and the shipper the liability of the carrier is primary, for the reason that the shipper has a right to assume that eai’s furnished have been inspected by the carrier and found reasonably safe.” Waldron v. Director General of Railroads (C. C. A.) 266 F. 196, 198.
2. The liability of the carrier does not arise out of contract but out of a duty imposed by law. Pennsylvania Railroad Co. v. Hummel (C. C. A.) 167'F. 89, 94. That duty extends, not only to the shipper, who has actually entered into contract with the carrier, but to the employee of that shipper, although, of course, there is no contract between employee and the carrier. Waldron v. Director General of Railroads, supra; Pennsylvania Railroad Co. v. Hummel (C. C. A.) 167 F. 89, 94. Nor is the duty restricted to the employees of the shipper having a contract with the carrier. As this court said in Copeland v. Chicago, B. & Q. R. Co., supra, it extends to those “who are to handle the freight in and out” of the ears. Therefore in this case it extended to the plaintiff, even although the contract with the defendant was not directly with the plaintiff’s employer, but with that employer’s selling agent, the Maekie-Clemens Company. The employer, the Quality Coal Company, was the shipper, and the cars were furnished by the defendant for its use. The duty of the defendant certainly extended to that company and its employees.
3. We think there was sufficient evidence to justify the submission to the jury of the question whether the cotter pin was defective prior to the delivery of the ear by the defendant and whether that defective condition would have been discoverable by reasonable inspection. The accident happened a little past noon on September 17, 1924. The
While there was no direct testimony that the cotter pin was defective as charged in the petition, and as shown by the evidence at the time of the delivery of the ear, certainly the facts disclosed by the evidence were sufficient to support the conclusion, which the jury reached, that that defective condition had lasted for longer than the time intervening between the delivery of the car and the hour of the accident. Immediately after the accident several witnesses inspected the cotter key. It was found by them to be in this condition: The head of the cotter key was battered into and against the brake stem as if it had been hammered there and it was covered by old rust. The flange end of the cotter key was in this condition: Both wings were broken off flush with the stem of the brake. As to one wing, apparently it had been absent for some time. That was indicated by the fact that the break in this wing was covered with rust characterized by the witnesses as “old” rust. As to the other wing, at the point of the break in that wing it was half eaten through from rust; the remaining portion being freshly broken, as was shown by the bright spot of metal at the point, of the fresh break. The testimony was that the weather during the time immediately before the accident had been bright and clear and without rain, and not, therefore, such as was calculated to quickly produce rust. The jury was certainly justified in finding that the condition which these witnesses described had existed longer than the short time which had elapsed since the delivery by the defendant of this car. Moreover, the testimony of both witnesses for the plaintiff and the defendant was to the effect that such a condition as that described could have been discovered by any reasonable inspection.
From the foregoing considerations it follows, and we hold, that the trial court did not err in refusing to direct a verdict for the defendant, nor did it err in refusing to submit to the jury the question as to whether plaintiff's employer was negligent.
4. A final contention of the defendant, that the verdict is excessive, must also be ruled against it. With that matter this court cannot concern itself. “The correction of that error, if there were any, lay with the court below upon a motion for a new trial.” New York, L. Erie & W. Railroad Co. v. Winter, 143 U. S. 60, 75, 12 S. Ct. 356, 36 L. Ed. 71.
The judgment is affirmed.