266 F. 609 | 3rd Cir. | 1920
E. I. Du Pont de Nemours Powder Company loaded a-Mobile & Ohio freight car with nitro-cellulose at its plant at Hopewell, Virginia, and delivered it to the Norfolk & Western Railroad Company for shipment to its plant at Carney’s Point, New Jersey. In its interstate journey the car passed over the roads of several intermediate carriers, and in due course came on the road of the West Jersey & Seashore Railroad Company, the terminal carrier. On May 30, 1916, this railroad company delivered the car to the Du Pont Company on its Interchange Track, located in the yard of its powder plant at Carney’s Point. There, movement by the carrier ceased. Erom this track the Du Pont Company moved the car by its own engine and crew, and unloaded it on June S. From that day until July 24, the Du Pont Company used the car, 'together with several hundred other cars similarly consigned, in its intra-mill service, without permission from anyone, yet paying the prevailing de-murrage charges. During this period it was loaded and unloaded several times. On July 24, the car, loaded with cannon powder for the British Government, was being moved by the Du Pont Company in a train operated wholly by its employes, from a powder magazine to Deep Water Point, where the powder was to be transferred to a steamship. Cochran, one of the crew, in attempting to set the brake to prevent an impending collision with another car loaded with high explosives, pulled the brake wheel from the brake rod, and, falling to the ground, sustained injuries for which later he brought this suit.
Cochran brought this action, it is to be observed, not against his employer, but against that one of the several carriers engaged in the interstate shipment which had made delivery of the car to his employer, and charged it with negligence by two counts. By the first count he averred that the defendant carrier knew the Du Pont Company would cause the car'to be moved and shifted about its private tracks by its employés; charged the defendant with the duty of inspecting the car before delivering it to his employer, relying upon Pennsylvania R. R. Co. v. Hummel (C. C. A. 3d) 167 Fed. 89, 92 C. C. A. 541, and McGinley v. Central Railroad of New Jersey, 235 Pa. 576, 84 Atl. 579, and alleged a breach of that duty by the defendant as the negligence which constituted the proximate cause of his injuries. The ground of action declared on by the second count, we shall consider presently. The court submitted the case to the jury on both counts. The verdict was for the plaintiff. To the judgment entered, the defendant sued out this writ of error.
While a carrier’s duty of inspection extends in some instances to an employé'of a consignee, it would seem that it does so only when a duty of the consignee to exercise like care for its employé has not arisen. The Supreme Court of Pennsylvania in McGinley v. Central Railroad Co. of New Jersey, supra, and this court in Pennsylvania Railroad Co. v. Hummel, supra, expressly held the carrier in each case liable to an employé of a consignee for a breach of the duty of inspection because no intervening duty of inspection had at the time of unloading devolved upon the consignee. But when a duty of inspection by one other than the carrier afterward arises, — where, as here, a consignee takes over a car for its own purpose, a purpose entirely dissociated from that for which it had been delivered by the terminal carrier in the discharge of its business, — and the one owing that duty fails to perform it, that breach of duty, intervening between the injury and a previous breach of a like duty at one time owed by another, is the proximate cause of the injuries that follow. Fowles v. Briggs, 116 Mich. 425, 74 N. W. 1046, 40 L. R. A. 528, 72 Am. St. Rep. 537; Griffin v. Jackson L. & P. Co., 128 Mich. 653, 87 N. W. 888, 55 L. R. A. 318, 92 Am. St. Rep. 496; M. K. & T. Ry. Co. v. Merrill, 65 Kan. 436, 70 Pac. 358, 59 L. R. A. 711, 93 Am. St. Rep.
It thus appears that when the Du Pont Company assumed full control over the car, put it in its intra-mill transportation service, and there, used it for forty-eight days between the day it was unloaded and the day of the plaintiff’s injury — a use, so far as the evidence shows, not contemplated by the defendant upon delivering the car— it assiimed the duty of inspection for the protection of its employes, and the defendant’s responsibility for its failure previously to inspect and discover a defect not secret ceased, Glynn v. Central Railroad Co., 175 Mass. 510, 56 N. E. 698, 78 Am. St Rep. 507; and its liability to the plaintiff also ceased — unless the defendant assumed a duty of inspection after delivery, as by the second count of his complaint the plaintiff alleged it did. '4
By the second count the plaintiff averred that the defendant maintained in the Du Pont Company’s yard inspectors in its own employ to inspect cars it had delivered, and thereby “took upon itself the duty of keeping said cars in proper repair”; and that, as the defendant collected demurrage charges it well knew that the car in question would be moved and shifted, and that) in consequence, it became “the duty of the defendant company to properly inspect the said car * * * and continue under the duty of inspection assumed by it, to keep the same in safe condition.”
Being of opinion that the trial court fell into error in refusing the defendant’s motion to instruct the jury to render a verdict in its favor on both counts, Miller v. West Jersey & Seashore Railroad Co., 79 N. J. Law, 499, 76 Atl. 973, we direct that the judgment below be reversed and a new trial had in a manner not inconsistent with this opinion.
The decision in this case was made after the resignation of Judge HAIGHT.