Sykes v. St. Louis & San Francisco Railroad , 88 Mo. App. 193 ( 1901 )

GOODE, J.

The second instruction referred to in the statement, authorized a verdict against the railway company if the plaintiff was hurt on a defective car negligently furnished by it, while engaged in hauling freight to and from the premises of the car wheel company, on cars supplied by the former company, but unloaded by the latter, the business being conducted for the mutual benefit of both. The two instructions were apparently prepared and given from an opinion that the facts bring this case within the scope of Roddy v. Missouri Pacific Railway Company, 104 Mo. 234. A careful comparison of the two cases has led us to the opposite conclusion. After examining several theories on which it was suggested the defendant, in the Roddy case, might be liable, the Supreme Court affirmed the judgment on the ground that Pickle, in whose quarry Roddy was employed, and the Missouri Pacific Railway Company were engaged in a joint undertaking for mutual profit, pursuant to a contract they had made; that each had engaged to perform a particular part of the work necessary to carry out the common purpose and was under an obligation to the other contracting party and fiis employees to exercise ordinary care in its performance; that selecting and providing cars was exclusively entrusted to the railway company which was, therefore, responsible if it carelessly provided unsafe ones.

The facts were, that Pickle owned extensive quarries of merchantable stone off the defendant’s main line. He desired to ship it to market and the railway company desired to haul it; so they entered into a contract by which the latter built a spur from its main line to the quarries, and tracks from the spur into the quarries. These were paid for by Pickle. The defendant left cars convenient to the private tracks, which Pickle’s employees would move to the quarries; when loaded the railway company took them out. Roddy was injured while shoving some empty cars on account of a defective brake.

The instructions in the present case were modeled after those recited in the opinion in that one. But there was no such contract shown to exist here between the defendant railway company and the car wheel company; in fact no contract at all. Their relation was the ordinary one of carrier and consignee, while the arrangement in the Roddy case was exceptional — an independent enterprise between the Missouri Pacific Railway Company and Pickle, based on an agreement by which the duties of each were assigned and engaged to be properly, executed. The railway company was held answerable to one of Pickle’s servants because he was injured by its failure to do carefully its part. The contract here was between the Kansas City, Port Scott & Memphis Railroad Company and the consignor Jarvis — perhaps there was one too between the St. Louis & San Francisco Railway Company and Jarvis. The bill, or bills, of lading are not in-evidence, so this point is obscure. But we find no contractual relation between the last-mentioned railway company and the St. Louis Car Wheel Company — much less a joint enterprise for mutual profit, unless every business concern and every carrier who hauls freight to it are prosecuting a joint enterprise, which will hardly be claimed. The important fact that the car was furnished by the Kansas City, Fort Scott & Memphis Railroad Company must not be overlooked. It widely separates this action from Roddy’s. The car belonged to the St. Louis & San Francisco line, but we regard that circumstance as immaterial for these reasons: it had been out of the owner’s charge for nearly two weeks when loaded with the car wheels shipped by Jarvis, and maybe the defendant company -would not have selected it for such freight if it had provided the car on which they were to be carried. If the car was in bad order, as the plaintiff’s evidence tended to prove, loading the wheels on it was a negligent act on the part of the company which did it. The instruction quoted assumes that it was furnished by the defendant railway company, which the undisputed evidence disproves. The St. Louis & San Francisco Eailway Company ought not to be held liable to the plaintiff for negligently providing a bad order car, which it clearly did not provide at all. Its responsibility must be found elsewhere — in failure to use ordinary care to discover the car’s condition at the point of transfer, or while in its possession up to the time of the accident. In so far as the defendant railway undertook to furnish cars for the car wheel company’s freight, it was bound to use care to furnish good ones. But there was no general undertaking of that kind proven or sought to be. The defendant was one of several common carriers that brought carloads of wheels to the car wheel company — sometimes, maybe always, it would get what it delivered from other lines on cars supplied and loaded by them. The instructions were misleading as tending to produce an impression that the defendant had agreed or undertaken to furnish the cars on which wheels were hauled and delivered to the car wheel company and was, therefore, bound to taire care that they were safe, which obligation the plaintiff had the right to presume was performed.

While we think, then, the Eoddy case is inapplicable, we totally dissent from the proposition ably pressed by appellant’s counsel, that it is not liable in any event to the respondent because it owed him no duty. There was no contract between them, it is true, but none "was necessary to impose a duty towards him on the appellant — the same duty it owes to all persons whose avocations require them to go on its cars in connection with its carrying business; namely, to have them in such repair that they may be used with reasonable safety. What means it ought to employ to this end and when they should be employed, depends, always, on the surrounding circumstances. If it provides a car to receive freight, it must use care in advance to have the car safe; if it receives one from a connecting line, it must use that degree of care which is compatible with efficient service and exercised by well-managed railway companies generally, to see that it is safe or set it out if it is not. These obligations and responsibility for non-compliance with them, are based on the just and reasonable requirement that a party providing an appliance, machine, vehicle, place or structure of any kind, to be used in his occupation and with the intention that people with whom he has business and their help, shall work with, about or on it, must exercise prudence to see that the thing he furnishes is not so imperfect or out of order as to cause injury to persons thus employed, while themselves observing due care. It is often said there is an invitation by the owner or furnisher of a contrivance to every one to use it who has occasion to do so in the performance of a task connected with the purpose it was designed to subserve; and this view is both sound and firmly established. O’Donnell v. Patton, 117 Mo. 13; Moore v. R’y Co., 84 Mo. 481; Carraway v. Long, 7 Mo. App. 595; Hartman v. Muchlebach, 64 Mo. App. 565; Heaven v. Pender, L. R. 11 Q. B. Div. 503; Elliott v. Hall, L. K. Q. B. Div. 320; Moon v. R’y Co., 46 Minn. 106; Olson v. Fuel Co., 77 Minn. 528; Hoosier Stone Company v. R’y Co., 131 Ind. 575; Glenn v. Winters, 40 N. Y. S. 659; R’y Co. v. Merrell, 61 Kan. 671; Stewart v. Harvard College, 12 Allen 58; Ice Co. v. Ericson, 39 Mich. 492; Conlon v. R’y Co., 135 Mass. 195. In all these and similar cases, the theory of responsibility is identical, though sometimes differently phrased; one who carelessly furnishes dangerous premises or appliances to be used by others in transacting business with him or business connected with his own, is liable to any one harmed thereby while free from contributory negligence. There can be no difference in principle whether the thing which caused the accident was real or personal property, if the injured party was doing with it at the time, what the owner or furnisher intended he should. There was a marked distinction between this case and Heizer v. Mfg. Co., 110 Mo. 605, and its kind,- where the original maker, or vendor, of the mischievous article, was not employing it in his own business but had parted with all dominion over it, in which instances his liability extends no further than the party with whom he contracted. Sometimes the doctrines of those cases may have been stretched too far. We apprehend that if the defendant in the Heizer case had owned the machine at the time of the accident and was permitting it to be used in its own-business as, for instance, in exhibition of its working efficiency,, the manufacturing company would have been liable.

Then, too, a railway company as the beneficiary of franchises conferred by the State, among which is the right to take tolls for transporting freight, is under an obligation to the public to transport it in cars on which people may work safely, as well as passenger coaches on which they may ride safely — the-degree of care required is different in the two instances, that is all. This principle was expounded in the exhaustive opinion by Judge Thompson in Lamert v. Laclede Gas Light Co., 14 Mo. App. 236, and was recognized in Winterbottom v. Wright, 10 M. & W. 107, an authority much relied on by the appellant. That case contained this element in common with Heizer v. Manufacturing Co., supra, and others, that the defective coach by which the plaintiff was hurt, was supplied by the defendant under his contract with the Postmaster General to a third party and while the latter was operating it a passenger was injured.

We have no doubt of the defendant’s liability to the plaintiff, if the latter’s injury was due to lack of care on the part of its employees. The obligation to exercise this care began, however, when it received the car. It was then incumbent on it to adopt proper methods to discover whether it was in a safe condition. It was not liable, under the evidence, on the ground that it provided an unsafe car.

We come then to inquire whether the submission of the case on that hypothesis was prejudicial error ? The car, when received by the defendant company, was loaded. It is at once apparent that an inspection of it in this condition would not be so apt to detect holes in the floor as when it was empty. It is true, the duty devolves on a company receiving cars from connecting lines to make exactly the same inspection of them as it does of its own. Gutridge v. R’y Co., 94 Mo. 468. But the circumstances under which the inspection may be made in either case must be considered and allowance made for them. There is much more time for a terminal inspection; besides, it is impossible to inspect a loaded car as thoroughly as you can an empty one, particularly with reference to the condition of the floor.

We conclude, then, that a greater burden was imposed on the defendant by the instructions, to acquit itself from responsibility, than was just. A railway company is bound by law to take loaded cars from other lines and transport them. While its liability for goods lost in transit is the same whether the loss be due to deficiencies in its own cars or foreign ones, the rule seems to be otherwise as to injuries to persons, other than passengers, caused by defects.

In Olson v. Fuel Co., supra, where the question of the responsibility of connecting carriers for a defective car transported over their lines, is gone into, it was ruled that if the car is “suitable and safe when delivered to the connecting carrier, the party making the delivery has exercised due care in the premises. He is not bound to follow it to its destination and there inspect and repair it if found defective,” That was a controversy like this: an employee was injured by a bad-order car.

By parity of-reasoning, it would seem that a carrier who unwittingly receives a defective car from another line, acquits itself of responsibility if it uses ordinary care to discover its condition and avoid injuries to persons therefrom when it receives it and after it is in its possession. We hold, therefore,- that the investigation, in the present case, should be confined to the question, whether or not the defendant railway company exercised ordinary care after it received it from the Kansas City, Eort Scott & Memphis Nailroad Company, which originally furnished it.

The fourth instruction, given at plaintiff’s request, told the jury that if the defendant undertook to inspect the car at Nichols Junction, where it received it, or other points on its line, it would be responsible for any negligence its inspectors were guilty of in the performance of their duty. This was correct and in harmony with the views above expressed.

In view of the testimony of the plaintiff himself as to the fact that cars with bad floors were often run in on the track leading to the car wheel company’s premises, to be unloaded by the latter’s servants, that portion of the instruction which charged the jury that he had a right to presume the defendant railway company had done its dirty and furnished a reasonably safe ear for him to work on, should have been omitted and the question referred to the jury as to whether the plaintiff was in the exercise of ordinary care himself when he was hurt. True, he says the defective cars were mostly those of the Burlington line, or that that line had the worst ears. We might not be willing to reverse the case for this error alone, but on a retrial it should be avoided. The Noddy case was reversed for just such a vice in the instructions. So, too, it was improper to admit proof that the plaintiff was a married man with two children. That testimony was objected to by the defendant and an exception saved. It was incompetent. The admission of similar evidence was condemned, although the court told the jury not to consider it in making their verdict, and especially not to consider it in fixing the amount of the verdict they might find for the plaintiff. Stevens v. R’y Co., 96 Mo. 207. Such a caution was not given in the present case.

The judgment is reversed and the cause remanded. All concur; Judge Bond in the reversal only, because he thinks the remand of the cause contrary to the decision in the first paragraph of Roddy v. Mo. Pac. R’y Co., 104 Mo. 234. He, therefore, asks that the cause be certified to the Supreme Court for final determination, which is accordingly done.