Summary
In Butler, a shipment of paper rolls weighing at least 1,000 pounds each was shipped from North Carolina to the International Paper Company in East Point, Georgia. The shipment was initiated on Norfolk Southern and concluded with Central of Georgia. Upon the arrival of the freight cars the plaintiff, an employee of International Paper, opened the freight door to begin unloading.
Summary of this case from Crockett v. Uniroyal, Inc.Opinion
34359.
DECIDED JANUARY 28, 1953.
Action for damages; from Fulton Superior Court — Judge Pharr. September 24, 1952.
Pittman Greene, for plaintiff in error.
Frank Love, Edward E. Dorsey, Powell, Goldstein, Frazer Murphy, contra.
In the absence of an allegation that a defect or some indication discoverable by a reasonable inspection of the outside of the freight car existed, which would have required an inspection of the inside of the freight car and its contents, the petition failed to allege the violation of a duty to inspect the inside of the freight car and its contents by the defendant, the receiving and ultimate carrier of the car. The court did not err in sustaining the general demurrer to the petition and in dismissing the action.
DECIDED JANUARY 28, 1953.
Floyd Butler sued Central of Georgia Railway Company for injuries received allegedly due to the defendant's negligence. The petition alleged in substance: that on October 2, 1951, the plaintiff was employed by International Paper Company at East Point, Georgia, and a part of his duties in laboring for the company was to unload freight from railroad box cars, the freight being assigned and shipped to the paper company; that at about 1:30 p. m. on said date the plaintiff was in the act of unloading a shipment of paper from a freight car, said paper being consigned to the paper company by the North Carolina Pulp Company, the initial and receiving shipper and carrier being Norfolk Southern Railway Company, and the ultimate or last shipper and carrier being the defendant; that the paper in the car was in rolls weighing from 1000 to 1100 pounds; that it was necessary in the unloading of the paper from the car that the plaintiff work a lever to raise the car door, and roll the door open so as to gain access to the loaded car; that in so doing it was necessary and a part of his duties to get down from the loading platform to the door of the car, loose the door, and push it open; that while the plaintiff was in the act of raising the door, preparatory to opening it, the door automatically rolled open releasing a roll of paper, which fell six or seven feet down upon the plaintiff injuring him in enumerated particulars; that the paper rolls were held in place by scotch blocks and a wooden. frame made of two-by-four timbers, designed for the purpose of securing the load of paper, all of which were nailed down to the floor of the car by means of heavy nails; that around the two-by-four timbers were fastened steel ties to hold the rolls of paper in place; that one of the scotch blocks was rotten and defective so that it burst, and the timber frame was not securely nailed to the floor and came loose, all of which caused a loosening and breaking of the ties; that the blocks, timber frame, and ties in such condition could not and did not hold the paper rolls in place, causing one roll to fall from the car when the door was opened; that the blocks, frame, and ties were so fastened to the car as to become a part of the car; that there was no open passageway from door to door in the car, the car being filled with the paper rolls; that it was the defendant's duty to inspect the car by opening the car to ascertain whether the paper was properly in place, by inspecting the blocks, frame, and ties; that, had the defendant so inspected the car and load of freight, it could have discovered the condition of the load and notified the plaintiff of such condition, thereby preventing his injuries; that the defendant by the exercise of ordinary care could have discovered the defective condition of the loaded car; that the failure of the defendant so to inspect the loaded car was the proximate cause of the plaintiff's injuries. The defendant's general demurrer to the petition was sustained and the action was dismissed, to which judgment the plaintiff excepts.
The question for decision is whether the defendant, under the allegations of the petition, was negligent in not discovering and remedying or informing the consignee or its employees of the dangerous condition of the contents of the freight car. The answer to such question requires an examination of the duty owed by an ultimate or receiving carrier to inspect the contents of a loaded freight car before it is delivered to the consignee.
The ultimate carrier is under the duty to inspect a railroad car it receives in shipment to ascertain whether the car and its unloading devices are reasonably safe; and if, on examination, it is discovered that the car or any part of its unloading devices is unsafe, it is the carrier's duty to make the necessary repairs or correct the unsafe condition or to notify the consignee of the dangerous defects or condition. Roy v. Georgia R. Bkg. Co., 17 Ga. App. 34 (2b) ( 86 S.E. 328). This duty to inspect applies only to an inspection for defects which an outside inspection of the loaded car would reveal. It is not the duty of the ultimate carrier to enter a loaded, closed car to inspect the cargo and its anchoring devices to ascertain whether it is safe for unloading unless in the exercise of ordinary care an internal defect or unsafe condition could have been discovered in the course of the external inspection. See Copeland v. Chicago B. Q. Ry. Co., 293 Fed. 12; Tucker v. Norfolk Western Ry. Co., 194 N.C. 496 ( 140 S.E. 77). In the instant case a duty on the part of the defendant to inspect the condition of the cargo and its anchoring devices inside the car would have arisen only if in the exercise of ordinary care the external inspection would have revealed some defect or indication (such as a bulging door) which would have been sufficient to give notice of a defect inside the car. To hold otherwise would require the ultimate carrier to break the seal and inspect the condition of the load in every car it receives regardless of what a reasonable inspection of the outside of the car reveals. This would be requiring an unreasonable if not a prohibitive inspection. There is no allegation here that there was any defect or indication on the car which should have been discovered during the inspection of the outside of the car and which would have required the inspection of the contents of the car and its anchoring devices.
The case of Roy v. Georgia R. Bkg. Co., supra, involved a defect discoverable by an outside inspection of the car. The court said: "In this case, though one of the dangerous defects of the car, the `bent link' was covered and concealed by the coal in the car, thus making it difficult for the ultimate carrier to discover it, the other dangerous defect, the worn and defective ratchet, was not so concealed, and it seems reasonable that its condition could have been discovered by the ultimate carrier, in the exercise of ordinary care."
In Atlanta West Point R. Co. v. Creel, 77 Ga. App. 77 ( 47 S.E.2d 762), the defect was defective brakes, which an outside inspection would have revealed.
In Atlanta West Point R. Co. v. Smith, 38 Ga. App. 20 ( 142 S.E. 308), it was held that the initial carrier was liable for damages caused by defects in the flooring of an empty car furnished by it to the consignor, which defect could have been discovered by the exercise of ordinary care.
Walker v. Central of Georgia Ry. Co., 47 Ga. App. 240 ( 170 S.E. 258), is distinguishable from the instant case on its facts. There an agreement existed between the ultimate carrier and the consignee that the consignee or its assignee would not unload the car as in the ordinary mode of commerce, but would have prospective buyers of the car's contents come into the car for the purpose of inspecting and buying the contents. There the railroad was in effect a joint invitor. In such a case we think that a different rule from the one herein announced as to inspection would apply.
The court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.