Opinion
No. 28647.
November 17, 1953.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, IVAN LEE HOLT, JR., J.
Ely Ely, Robert C. Ely, Alphonso H. Voorhees, St. Louis, for appellant.
Warner Fuller, Arnot L. Sheppard, St. Louis, for respondent.
This is an action brought by plaintiff, Emerson Electric Manufacturing Company, against the St. Louis Terminal Distributing Company and the Terminal Railroad Association of St. Louis for damages to a shipment of sheet steel. During the course of the trial in the Circuit Court the plaintiff settled its controversy with the defendant, St. Louis Terminal Distributing Company, and dismissed its claim against said defendant with prejudice.
Plaintiff proceeded against the Terminal Railroad Association of St. Louis and obtained a verdict against it in the sum of $7,199.36. Said defendant filed its motion for judgment, in accordance with its motion for a directed verdict, or for a new trial. Thereafter, the court entered its order sustaining said motion for judgment, in accordance with said defendant's motion for a directed verdict and made a further order that if the judgment entered in accordance with its previous order be reversed by any appellate court, the defendant's motion for a new trial was sustained, because of error in giving an instruction. An appeal by plaintiff to reverse these orders and to reinstate the verdict of the jury has been perfected. We will refer to the defendants as defendant Distributing Company and defendant Terminal Railroad.
Plaintiff purchased from the Inland Steel Company 535.51 tons of electrical steel sheets, 025 of an inch thick, wrapped in 104 packages, each weighing approximately five tons. The shipment of this sheet steel originated in Indiana Harbor, Indiana, and was shipped from Indiana Harbor by rail to Chicago, Illinois. From Chicago, Illinois, it was transported by the John I. Hay Barge Line to the Mississippi River dock of the defendant Distributing Company. It arrived at the dock in good condition. Upon arrival, Joseph Klostermann, Traffic Manager for plaintiff, talked to a Mr. Brennan, Superintendent of defendant Distributing Company, and told him that plaintiff was going to have some sheet steel come to the docks of the Distributing Company and asked Mr. Brennan to have his company handle this steel. Mr. Klostermann also told Mr. Brennan that plaintiff had an overhead crane at its plant and asked that the sheet steel be placed in gondola or open top cars. Mr. Klostermann, when testifying, was asked the reason for requesting this type of car and answered, "To enable us to unload it at our plant, because that is the only way we can unload it." He further testified the open top cars were necessary for use of the overhead crane. Mr. Klostermann also told Mr. Brennan, that plaintiff's plant was on the tracks of the Wabash Railroad Company.
The defendant Distributing Company loaded the sheet steel into nine open top cars which were taken by the defendant Terminal Railroad and were delivered by it to the Wabash Railroad Company who delivered the sheet steel to the plant of plaintiff.
The packages of sheet steel had been wrapped by the Inland Steel Company with waterproof paper. Tied into and running lengthwise with each package were two four by four wooden skids. When the steel sheets arrived at plaintiff's plant the waterproof paper wrappings were torn and the sheet steel was rusty. The packages of sheet steel "had been double-decked or one lift on top of another" and the supporting four by fours were broken. These four by four supports had been placed on top of the bottom packages of sheet steel and were intended as a support for the packages placed on top. The breaking of these supports had "allowed the bundles loaded on top to drop and bend the steel" sheets. The damaged sheet steel could not be used by plaintiff in this condition and was sent to the Granite City Steel Company for reconditioning. The cost of reconditioning, transporting, inspecting and handling the damaged sheet steel plus the loss from shrinkage totaled $14,449.36. The defendant Distributing Company in its settlement paid plaintiff $7,250, leaving the amount in dispute with defendant Terminal Railroad, $7,199.36.
Plaintiff in its petition alleged that the defendant Distributing Company failed to use the proper equipment and devices to lift said sheet steel from the barge to the railroad cars; that said defendant placed timbers under the packages, when in the exercise of ordinary care such timbers should not have been placed in said cars; that said defendant negligently loaded some of the packages on top of other packages of sheet steel and failed to secure said packages of sheet steel so that said packages would not shift during transportation and that too many of said packages were loaded in each of the railroad cars. The petition further alleged that said defendant Distributing Company failed to load said packages of sheet steel in accordance with the "Rules Governing the Loading of Commodities on Open Top Cars" promulgated by the Association of American Railroads, which were in effect at the time of the loading of said packages of sheet steel and further alleged that said rules represented the standard custom and practice in the railroad and shipping industry and alleged that in the exercise of ordinary care such rules should have been followed.
The petition alleged that defendant Terminal Railroad was negligent in the following respects: (1) in failing to inspect said railroad cars and the manner in which said cars were loaded, when such an inspection would have disclosed that said packages of sheet steel were not properly loaded; (2) in failing to discover that said packages of sheet steel were loaded improperly; and (3) in negligently accepting and transporting said packages of sheet steel when "said packages of steel were not loaded in said railroad cars in accordance with the `Rules Governing the Loading of Commodities on Open Top Cars' promulgated by the Association of American Railroads, which said rules represented the standard custom and practice in the railroad industry at said time, and which said rules required that railroad cars be inspected to determine the condition of the load before acceptance."
It is practically conceded that the defendant Distributing Company did not load the cars in accordance with the rules pleaded. Plaintiff introduced in evidence the Rules Governing the Loading of Commodities on Open Top Cars published by the Association of American Railroads and read to the jury the following parts of rules:
General Rule No. 5: "Gondola cars. Loads not covered by individual figures and where the vacant space across car between the piles and between the load and car sides exceeds a total of 18 inches, must be secured so as to prevent moving or tipping towards sides of car."
Figure 79 (This rule covers flat rolled steel less than 1/4 inch thick, in bundles, with high tension bands or high tension wires, strength 2000 pounds each, lengthwise, in gondola cars) "Height of piles must not exceed 3/4 their base or 2 in. below top of car side."
General Rule No. 1: "Cars must be inspected to see that they are in suitable condition to safely carry loads to destination and that loads are properly and safely secured before being accepted from shippers."
Evidence introduced by plaintiff showed that the packages of sheet steel were not blocked, nor was any material of any kind set between the packages of sheet steel or between the packages and the side of the car. The packages were loaded so that some of them rested on top of others with the height exceeding 3/4 of their base. The evidence further showed that the vacant space across the cars between the packages and between the packages and the car sides exceeded eighteen inches. There was testimony that steel sheets loaded in this manner would possibly shift and tip over.
It will be observed from what we have said, that this is not an action against the carrier for liability under the bill of lading. In such an action the carrier receives the goods for shipment and insures their delivery in accordance with the bill of lading, unless the loss is occasioned by the act of God, or of a public enemy; or by reason of inherent defect or vice of the goods shipped or on account of the fault of the shipper. Ford v. Wabash Ry. Co., Mo.App., 266 S.W. 1032, judgment affirmed 318 Mo. 723, 300 S.W. 769.
Plaintiff's petition charges specific negligence in the respects hereinbefore mentioned and the burden of proving at least one of the specific charges of negligence is that of plaintiff. Obviously, the Circuit Court must have found that plaintiff failed to make a submissible case for the jury when it sustained the motion of defendant Terminal Railroad for judgment in accordance with its motion for a directed verdict.
The first contention relied on by plaintiff to sustain the verdict of the jury is that defendant Terminal Railroad had a duty to inspect the cars and their contents before accepting or transporting them and that a failure to do so constitutes actionable negligence when damage results from such failure. It is admitted that none of said defendant's employees inspected these cars before accepting them for transportation. Plaintiff in support of this charge of negligence cites the case of Train v. Atchison, T. S. F. Ry. Co., 214 Mo.App. 354, 253 S.W. 497. In this case a warehouse company, described by the court as an agent of the shipper, loaded an automobile onto one of defendant's cars. The railway company had nothing to do with the loading of the car. When the work of fastening the car was nearly, but not quite finished, McLane, a representative of the warehouse company, "went over to the office of the Santa Fe teamtrack foreman, a man by the name of Freeman, and requested him to inspect the loading and place his O. K. on the bill of lading which McLane had prepared, * * *. Freeman went with McLane to the car, inspected the manner in which the automobiles were being fastened, and, returning to his office with McLane, placed his O. K. on the bill." 253 S.W. loc. cit. 501. Thereafter, employees of the warehouse company went into the car to drain gasoline from the automobile. They took a lighted lantern into the car with them and the flame from the lantern ignited gasoline fumes in the car and damaged the automobile. Plaintiff claimed that the defendant railway company had assisted in the negligent act of taking a lighted lantern into the car while gasoline was being drained from the automobile. The court held that the defendant railway company had not assisted in that work and therefore no case was made against the railway company. In the course of the opinion the court 253 S.W. loc. cit. 502 said:
"The evidence is unquestioned that the work of loading and preparing the automobiles for shipment was solely that of the warehouse company. The railway company had nothing to do with that, save to inspect and approve the manner of their being fastened in the car."
Plaintiff in the case before us contends that the second sentence in the aforesaid quotation places on the carrier the duty to inspect the manner of loading a car. A reading of the case discloses that the court did not have before it for ruling, whether or not the railway company had a duty to inspect the manner of loading. Plaintiff admits this statement of the court was obiter dictum. We do not think that the court in making that statement intended to lay down a principle of law that would require carriers to inspect the manner of loading. We agree with defendant Terminal Railroad's analysis of this statement in its brief that the quotation, instead of stating a principle of law by saying "the railway company had nothing to do with that, save to inspect and approve the manner of their being fastened in the car," was stating what the evidence disclosed was a fact and was not attempting by that language to say that any obligation rested upon the railway company to inspect and approve the manner of fastening the automobile in the car. Significant to the facts in this case is this further statement made by the court in its opinion, when it said:
"* * * as between plaintiff and the railway company, the warehouse company was plaintiff's agent. * * * the point here made is that plaintiff cannot recover against the railway company if the loss was caused by the negligence of plaintiff's agent, unless the railway company also negligently participated in the act causing the destruction." 253 S.W. loc. cit. 503.
Another case relied on by plaintiff is Gulf, W. T. P. Ry. Co. v. Wittnebert, 101 Tex. 368, 108 S.W. 150, 14 L.R.A., N. S., 1227. This was an action to recover damages for personal injuries. Wittnebert undertook to unload a tank car containing oil. When the car was placed upon the track by the railway company for unloading, the valve was not set, and when the tap was removed the oil flowed out upon Wittnebert. It seems that the consigner of the oil failed to set the valve. The court in its opinion 108 S.W. loc. cit. 151, said:
"The only question presented to this court is: Was it the duty of the Gulf, West Texas Pacific Railway Company to see that the valve was set and the tank in a safe condition to be unloaded when delivered to the consignee? * * * It was the duty of the railway company upon receiving the tank car to make a reasonable inspection of its condition with reference to its fitness for transportation; but we have been unable to find any authority which goes to the extent of holding that it was the duty of the railway company, under such facts, to inspect the manner of loading the car so as to ascertain whether the freight was so arranged as to be safe to persons who might be called upon to remove it from the car. * * *
"We have found no dissent from the general rule that, when the consignor loads freight upon a car or packs articles for shipment, the carrier which receives the car as loaded, or the package as prepared, is not liable for damages which arise from the defect in the loading or the packing." (Emphases ours.)
Plaintiff in the case before us calls our attention to the following statement in this opinion, wherein the court said:
"* * * it is not the duty of a railroad company which receives from the owner or from another railroad company a loaded car to make an inspection of the manner of the loading when the defect cannot be discovered by an external examination." 108 S.W. loc. cit. 152.
It is the contention of plaintiff that a failure to inspect that which could have been seen by an external examination was less than reasonable care and was negligence. We do not believe that the language used in the Wittnebert case contemplates a detailed and minute examination of the open top cars for any defects in loading. Credence for this statement can be obtained from another statement made by this same court when it held that,
"* * * In order to make the inspection claimed, the inspector at Victoria would have been required to go upon the top of the oil tank, unscrew the cap from the dome, and test the valve to ascertain whether it was properly set. As we have seen, no such duty of inspection rested upon the railroad company * * *. We have found no precedent for holding that the railroad company owed such duty to the consignee, nor do we know of any rule of law that would support such a conclusion." 108 S.W. loc. cit. 152.
The gondola open top cars used in the shipment of the sheet steel had sides and ends that extended above the sheet steel placed in the cars. This is readily seen from the pictures of the cars and their contents taken before they were unloaded. These pictures were introduced in evidence during the trial of the case. An inspection by the defendant Terminal Railroad of the manner of loading these cars would have required an employee of said defendant to climb to the top of the car and when there, in some manner, determine the space between the packages and the space between the packages and the side of the car. Also, it would have been necessary to walk or climb over the sheet steel to determine if sufficient blocking and bracing had been built in the spaces. It is evident that all these steps would have been necessary in order to determine any defects in the manner of loading. The two authorities relied on by plaintiff do not require such an inspection. An external examination of these cars from the ground would not have disclosed the manner of loading the cars.
We think the law on the duty of a carrier to inspect when the carrier took no part in loading the car is clearly stated in 13 C.J.S., Carriers, § 78c, p. 150:
"One of the exceptions to the carrier's common-law liability arises in cases where the injuries are due to the improper packing of the goods by the shipper. Accordingly, if goods are improperly packed, and this fact is not apparent or known to the carrier, it is not liable for loss or injury resulting in the ordinary course of handling and transportation from such improper packing, if it is itself free from negligence, * * *. Some decisions hold without qualification that the full duty of the carrier is simply to carry goods in the condition in which they are offered, and that, where goods tendered are insufficiently packed, the carrier is not liable for loss or injury due to such defect, even though the defect in the packing is apparent; * * *. The shipper usually knows better than the carrier the manner in which the goods have been packed and the manner in which they should be packed, and even though the carrier may have knowledge of some defect in the packing, still if it is not apparent to the ordinary observation of the carrier or his servants that the goods cannot be safely carried in the condition in which they are presented, the carrier should not be held to take the chances of injury from improper packing."
It is true that this statement deals with the carrier's common-law liability when the action is brought under the bill of lading and does not mention the liability when the action is ex delicto. However, it would be incongruous to hold that the duty to inspect the manner of loading is greater when the action is based on negligence, than it would be if the action is based on the contract to haul safely and this becomes more apparent when we realize that the carrier's common-law liability under the contract is that of an insurer.
A factual situation similar to the case at bar will be found in the case of Hines, Director General of Railroads, v. Buchanan, 131 Va. 88, 109 S.E. 219. The case arose out of a shipment by Elizabeth Buchanan of valuable furniture and household effects from her home in Richmond, Virginia, to a new home in Atlantic City, New Jersey. The Smith Hicks Corporation was employed by her to remove, crate and ship this furniture to Atlantic City. The furniture and household effects were badly damaged and Mrs. Buchanan sued Smith Hicks and the Railway Company for the damages sustained. She charged Smith Hicks with negligence in the matter of packing and loading the shipment and charged the Railway Company with the duty to inspect the car to determine whether its contents were loaded with reasonable care and in such manner that they could be carried safely. In this case the court discussed and quoted from many authorities on the carrier's liability under the aforesaid related facts. The court in stating the applicable rule said:
"The general rule with respect to loading and unloading goods transported by a common carrier is that these duties attach to the carrier, and it is responsible for loss or injury incident thereto. But the shipper, for purposes of his own convenience, may assume these duties. In such case, by the plainest principles of justice, the carrier is absolved from responsibility for injuries received in transportation that are traceable solely to improper loading and packing." 109 S.E. loc. cit. 221.
To the same effect, see Snowden v. Tremont G. Ry. Co., La.App., 140 So. 122, and Illinois Central R. Co. v. Rogers Thomas, 162 Ky. 535, 172 S.W. 948, L.R.A. 1915C, 1220. In another part of its opinion in the Buchanan case the court did say that quite a different question would be raised if the improper loading "was manifest to * * * ordinary observation" (emphasis ours) when the car was received. We do not believe that the duty to discover that which is apparent to the ordinary observation includes the duty of climbing to the top of the car. It only includes the duty to detect any defects in loading that are manifest to a servant of the carrier as he walks by the car and prepares to attach it to the train for transportation. It is clear that any defects in the loading of the car would not be observable by a servant of the carrier walking on the ground alongside the loaded car. We rule that the defendant Terminal Railroad had no duty to inspect the cars and their contents before accepting or transporting them.
What we have said about the duty to inspect is equally applicable to plaintiff's second specification of negligence that it was the duty of defendant Terminal Railroad to discover the improper loading of the packages of sheet steel. The authorities heretofore cited clearly demonstrate there was no duty on the part of the carrier to discover the improper loading of the packages of sheet steel, except to discover the improper loading if it was manifest to ordinary observation.
Plaintiff's third specification of negligence is based on an alleged custom and practice in the railroad industry to load cars in accordance with the Rules Governing the Loading of Commodities on Open Top Cars promulgated by the Association of American Railroads. The mere existence of the rules is not a sufficient basis to establish a custom and practice in the railroad industry. It is necessary for the industry to act in accordance with the rules over a sufficient period of time in order for it to become a custom or practice. Plaintiff failed to prove that the rules were followed by the railroad industry, but did attempt to prove that there is such a custom and practice followed by the railroads in the St. Louis and East St. Louis area. Defendant Terminal Railroad contends that plaintiff failed to prove the existence of such custom and practice in the local area. There is some doubt in our minds that plaintiff's evidence was sufficient to establish the existence of a custom and practice to follow the aforementioned rules in this area, but we find it unnecessary to answer that issue because of an obvious deficiency in plaintiff's pleading and proof. Plaintiff neither pleaded nor proved that it or the Distributing Company relied on the defendant Terminal Railroad following any such custom and practice. It is not enough to prove the existence of a custom or practice to follow the rules pleaded, but it must also be shown that the plaintiff or the Distributing Company knew of the existence of such custom and practice and relied on such custom and practice being observed by defendant Terminal Railroad. Brock v. Mobile O. R. Co., 330 Mo. 918, 51 S.W.2d 100; State ex rel. Kansas City Public Service Co. v. Bland, 354 Mo. 79, 188 S.W.2d 650. In order for plaintiff to acquire any rights by reason of the existence of a custom and practice it must be pleaded, and shown by the evidence, that plaintiff or the Distributing Company for plaintiff, loaded these cars with a knowledge of these rules and that plaintiff or the Distributing Company relied on defendant Terminal Railroad observing the rules. We have not related the evidence offered to establish the existence of the alleged custom and practice, because we are not concerned with the proof in that regard, but in our examination of the record we are unable to find any evidence that either plaintiff or the Distributing Company relied on the observance of the alleged custom and practice by the defendant Terminal Railroad.
From what we have said it is obvious that plaintiff failed to make a submissible jury case and the action of the trial court in sustaining the motion of defendant Terminal Railroad for a judgment, in accordance with its motion for a directed verdict, was correct. The judgment should be affirmed. It is so ordered.
BENNICK, P. J., and ANDERSON, J., concur.