DocketNumber： 19914
Judges： Celebrezze, McALLISTER, McAllister, Weick
Filed Date： 2/12/1971
Status： Precedential
Modified Date： 11/4/2024
Lambert instituted this action in the District Court against the Government, under the provisions of the Federal Tort Claims Act, to recover damages for personal injuries sustained by him while unloading cargo from a trailer which belonged to his employer, Time Freight, Inc., at its terminal in Memphis, Tennessee. In his complaint Lambert charged
The case was tried by the District Judge sitting without a jury. The District Judge adopted findings of fact and conclusions of law, and rendered judgment in favor of the Government, dismissing the complaint. Lambert appealed. We affirm, but on grounds different than those relied upon by the District Judge.
The trailer was loaded at the Defense Depot by a truck driver named Anson Long, who was a fellow employee of Lambert. Long was assisted by an unnamed Government employee in the loading of heavy items. The cargo was less than a truckload and consisted of cartons of steel sheets, angle irons and rods. Some of the cartons of steel sheets were loaded on top of the angle irons and rods. When the loading was completed, the trailer, attached to a tractor, was driven by the truck driver to the terminal of the carrier, a distance of five or six miles, where Lambert alone proceeded to unload it in order that it could be made part of a full truckload and shipped elsewhere. In unloading the cargo, one or more of the steel sheets fell against a side-wheeler which Lambert was using, pinning him against the side of the trailer.
The evidence was in conflict as to whether the cargo had been properly loaded at the Defense Depot. The District Judge found, however, that the steel sheets had been loaded in a dangerous manner, and that the truck driver, Anson Long, and the Government employee who assisted in the loading, were both negligent. The Court held that the primary responsibility for loading the trailer was upon the carrier, relying on United States v. Savage Truck Line, 209 F.2d 442 (4th Cir. 1953), cert. denied 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098 (1954).
The Court found that the negligence of the truck driver, Anson Long, was the proximate cause of Lambert’s injury, and that the negligence of the unnamed Government employee was not a substantial factor in producing the injury. The Court further found that Lambert was not contributorily negligent but that he assumed the risk of the injury which he sustained. The Court concluded as a matter of law that the defense of assumption of risk was unavailable to the Government because it was not pleaded in its answer. The finding of the Court with respect to assumption of risk and contributory negligence is as follows:
“The Court further finds, although it was not pleaded and the Court does not believe it can be a basis for the outcome of the suit, however, the Court will make the finding that Mr. Lambert assumed the risk of his injury. This is established by the fact that he had been a driver before his injury and he testified he knew this method was dangerous, that he would not get near it when it was going on. He was fully aware of this improper method of loading. And if he knew it when he was a driver, that knowledge certainly would be binding on him when he was a checker at some subsequent time. The Court does not find that he was guilty of contributory negligence in that his conduct in unloading was never shown to have been in the absence of reasonable and ordinary care under the circumstances. The assumption of risk and contributory negligence are separate doctrines; and the Government did not plead assumption of risk and, therefore, the Court believes it is not available to them.”
The Court was in error in holding that the defense of assumption of risk was unavailable because it was not pleaded. Rule 15(b) of the Federal Rules of Civil Procedure provides:
“* * * [W]hen issues * * * are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”
Lones v. Detroit T. & I. R. R., 398 F.2d 914 (6th Cir. 1968), (involving unpleaded
There was substantial evidence to support the Court’s finding that Lambert assumed the risk, and also tending to prove that he was contributorily negligent.
Lambert admitted that there was lighting on the dock and floodlights to shine inside the trailer, and that the lighting was sufficient. He could therefore see and observe the manner in which the cargo had been loaded, had he looked.
Lambert testified on cross-examination as to his knowledge of the dangerous loading of the trailer as follows:
“Q. Have you ever loaded anything like — you have seen this picture, of course, Mr. Lambert; did you ever load anything like that?
A. Yes, sir.
Q. How did you load it?
A. Are you speaking of at the Depot or at my terminal?
Q. At the Depot.
A. At the Depot if it was heavy freight — ordinarily I have seen this come five or six and maybe eight on a stack and it has been brought into my trailer on a forklift; and the forklift operator goes back and gets on one side and lifts it up against the wall.
Q. And you didn’t touch it?
A. No, sir, I didn’t go around it.
Q. What would you do, go get a cup of coffee ?
A. I wouldn’t touch it because it could fall.”
Although by his own admission Lambert would not “touch” a cargo loaded as this one was, “because it could fall,” the fact is that he did touch it and was unloading it alone. It did fall and injure him.
The truck driver, who was a witness for Lambert, testified that he loaded the trailer and that he was assisted in the loading of items which were too heavy for him to handle alone by a Government employee whom he did not name. Since the primary responsibility for the loading was upon Lambert’s employer, the sole reason for calling upon Government employees for assistance was to help in the loading of heavy items. Yet Lambert at the carrier’s terminal undertook to and did unload these heavy items alone. The evidence clearly supported the District Judge’s finding as to assumption of risk.
It should also be noted that although both Long and Lambert testified as to the practice of Government employees to load cartons of steel sheets by driving a forklift inside the trailer, the District Judge found as a fact that the forklift was too large to be operated inside the trailer and that the forklift was used only to carry the cartons of steel to the trailer where they were placed on one or more pallets, pushed inside the trailer and piled against the side of the trailer by hand.
In Restatement of the Law, Torts 2d, § 496A, page 560, it is stated:
“A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” In Restatement of the Law, Torts 2d,
§ 496C(1), pages 569, 570, it is stated:
“Except as stated in Subsection (2), a plaintiff who fully understands a risk of harm to himself or his things caused by the defendant’s conduct or by the condition of the defendant’s land or chattels, and who nevertheless voluntarily chooses to enter or remain, or to permit his things to enter or remain within the area of that risk, under circumstances that manifest his willingness to accept it, is not entitled to recover for harm within that risk.”
Contributory negligence and assumption of risk sometimes overlap. This is recognized by comment c. 4 in Restatement of the Law, Torts 2d § 496A, page 562, where it is stated:
“4. To be distinguished from these three situations is the fourth, in*1252 which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is thus negligence on the part of both plaintiff and defendant; and the plaintiff is barred from recovery, not only by his implied consent to accept the risk, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own negligence was in part responsible.”
In our opinion the finding of the District Judge that Lambert was not con-tributorily negligent is clearly erroneous.
Two additional matters shguld be mentioned. The carrier did accept the shipment and assumed control over it. Its employee, Long, had knowledge that the trailer had been dangerously loaded, he himself having loaded it, with the assistance of a Government employee. His knowledge is imputed to the carrier. In that dangerous condition, the carrier transported the cargo from the Defense Depot to its terminal five or six miles distant therefrom. Whether something happened to the cargo in that movement which might have caused or contributed to Lambert’s injury, does not appear from the evidence. There was no showing that when Lambert commenced to unload the cargo it was in the same condition as when it was loaded.
In any event, since the carrier accepted the shipment for delivery with full knowledge that it had been dangerously loaded, it could and should have eliminated the hazard, and its failure to do so has been held to constitute an intervening agency absolving the shipper from liability for injuries to third persons. Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 323, 130 N.E.2d 824 (1955).
In Jaffke v. Dunham, 352 U.S. 280, 77 S.Ct. 307, 1 L.Ed.2d 314 (1957), the. Court held:
“A successful party in the District Court may sustain its judgment on any ground that finds support in the record.” (p. 281, 77 S.Ct. at p. 308)
The judgment of the District Court is affirmed.
Among the Tennessee eases cited to uphold the pertinent foregoing statement of the rule set forth in 65 Corpus Juris Secundum are the following: