Opinion
No. 33154
Decided December 14, 1955.
Negligence — Intervening agency capable of eliminating existing hazard — Break in chain of causation — Original agency absolved — Steel forgings packed in boxes for shipment by manufacturer — Accepted for transportation by common carrier — Carrier attempted to repair broken box in transit — Casting fell from trailer, injuring another — Manufacturer relieved from liability by intervention of another agency.
1. Where there intervenes between an agency creating a hazard and an injury resulting from such hazard another conscious and responsible agency which could or should have eliminated the hazard, the original agency is relieved from liability. A break in the chain of causation thereby takes place which operates to absolve the original agency.
2. Where a manufacturer of steel forgings packs such forgings in a pallet box, manufactured by it, in such a way that the forgings can escape from the boxes, and such boxes are accepted for transportation by a common carrier, loaded by the carrier onto its tractor-trailer outfit and transported by its driver who, becoming aware of forgings falling from the trailer and bouncing as high as telephone lines, attempts to repair a broken pallet box by removing a slat from another box containing a forging which later falls from the trailer, bounces on the road and through the windshield of an automobile thereby causing injuries to another, such manufacturer is relieved from liability for such injuries by the intervention of the common carrier as another conscious and responsible agency.
APPEAL from the Court of Appeals for Cuyahoga County.
On October 18, 1948, plaintiff filed his petition against the Charles J. Rogers Transportation Company, a common carrier and hereinafter called Rogers, in the Common Pleas Court of Cuyahoga County, alleging that on August 20, 1948, he was operating his automobile in an easterly direction on U.S. Route 2; and that at a point three to four miles east of the city limits of Toledo, as plaintiff's automobile was passing a tractor-trailer outfit being operated in a westerly direction on said highway by Rogers, a steel forging, in some manner unknown to the plaintiff, bounced, fell or was thrown from the outfit and crashed through the windshield of plaintiff's automobile, striking plaintiff in the face and causing him serious injury.
On December 16, 1948, Rogers filed an answer in which, after making certain admissions concerning the highway and plaintiff's use thereof, it denied that it was operating a tractor-trailer outfit as alleged, and that a forging from any outfit owned by it crashed through plaintiff's windshield.
On February 2, 1949, plaintiff filed an amended petition naming the Ford Motor Company, hereinafter referred to as Ford, as an additional party defendant. In this amended petition, plaintiff alleges that the forging which crashed through his windshield was manufactured by Ford at its Canton forge plant and was packed and loaded by Ford onto the tractor-trailer outfit of Rogers at Canton, Ohio, to be transported by Rogers to Ford's River Rouge plant near Dearborn, Michigan.
The amended petition charges Ford with negligence in shipping its forgings in containers of such design, material and construction that forgings were caused or permitted to escape therefrom onto the highway during transit; in failing to adequately and safely pack and load its forgings for shipment; and in continuing to pack, load and ship its forgings in the same manner and in failing to substitute different and safe methods after it knew, or in the exercise of ordinary care should have known, that its forgings were escaping onto the highway during transit.
The amended petition charges Rogers with negligence in transporting the forgings in such a manner that they escaped from their containers and fell onto the highway during transit; in continuing to so transport them and in failing to substitute or require the substitution of different and safe methods; in failing to promulgate and enforce rules and practices of making adequate and sufficient inspections of loads; and in continuing to operate its tractor-trailer outfit on August 20, 1948, after it knew, or in the exercise of ordinary care should have known, that forgings had escaped from their containers and were lying loose upon the bed of a trailer, without taking adequate measures to prevent their falling therefrom.
To this amended petition, Rogers filed an answer substantially identical to its answer to the original petition.
The answer of Ford admits its corporate existence, but denies that Rogers was operating a tractor-trailer outfit at the time and place of the accident, that a forging belonging to Ford struck plaintiff, and that Ford was negligent in any manner.
The jury returned a verdict of $100,000 against both defendants; Ford and Rogers filed motions for judgment non obstante veredicto; the court granted Ford's motion, entering judgment non obstante veredicto for Ford, overruled Rogers' motion and entered judgment against it on the verdict; and Rogers filed a motion for new trial and, before the court had passed on such motion, appealed to the Court of Appeals from the order overruling its motion for judgment non obstante veredicto.
The Court of Appeals dismissed Rogers' appeal, on the ground that the order appealed from was not a final order and, in Ford's cross-appeal, reversed the judgment of the Common Pleas Court and remanded the cause with directions to enter judgment on the verdict against Ford. Thereafter, Rogers and Ford filed separate appeals to the Supreme Court, Rogers appealing in case No. 33233, and Ford appealing in case No. 33154. The Supreme Court allowed both motions to certify the record.
In case No. 33233, the Supreme Court affirmed the judgment of the Court of Appeals ( Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St. 70, 113 N.E.2d 489). Upon the hearing in the Common Pleas Court on Rogers' motion for new trial, that court ordered a remittitur of $45,000, plaintiff refused to accept the remittitur and the trial court sustained the motion for new trial. Rogers appealed to the Court of Appeals from the order overruling its motion for judgment non obstante veredicto and plaintiff cross-appealed from the order sustaining Rogers' motion for new trial; and the Court of Appeals affirmed the judgment of the Common Pleas Court and dismissed plaintiff's cross-appeal from the order granting a new trial. The Supreme Court allowed Rogers' motion to certify the record, and that cause (No. 34376) is disposed of in a separate opinion, post, 329.
The matter before this court in the instant case (No. 33154) is the separate appeal of Ford from the judgment of the Court of Appeals reversing the judgment of the Common Pleas Court and remanding the cause with directions to enter judgment on the verdict against Ford.
Messrs. Harrison, Spangenberg Hull, for appellee.
Messrs. Arter, Hadden, Wykoff Van Duzer, Mr. Leroy B. Davenport and Mr. R. Crawford Morris, for appellant.
It is contended by Ford in this appeal that where there intervenes between an agency claimed to have created a hazard and an injury claimed to have resulted from such hazard another conscious and responsible agency which could or should have eliminated the hazard, the original agency is relieved from liability.
The rule has been stated recently by this court as follows:
"Moreover, in the circumstances of this action the U-Drive-It Company may invoke the rule that, where there intervenes between an agency creating a hazard and an injury resulting from such hazard another conscious and responsible agency which could or should have eliminated the hazard, the original agency is relieved from liability. A break in the chain of causation thereby takes place which operates to absolve the original agency." Thrash, a Minor, v. U-Drive-It Co., 158 Ohio St. 465, 110 N.E.2d 419.
Whether Ford may invoke the rule under the circumstances of this action requires a review of the voluminous and often contradictory testimony presented by the record. James E. Carr, driver of the Rogers outfit, was on the witness stand for a day and a half. Much of his testimony was ambiguous and contradictory, even to the extent that plaintiff, on whose behalf he was called, was permitted, under the guise of refreshing his recollection, to cross-examine him. From Carr's testimony and that of others, however, certain facts bearing upon the question involved herein were established.
Forgings similar to the one which struck plaintiff were manufactured by Ford at its Canton plant and were packed by Ford in pallet boxes manufactured by it from new wood. These boxes were loaded by Ford employees, under the direction and supervision of Rogers, onto a coupled semi-trailer and a full trailer leased by Rogers and operated by Carr. Carr designated the places on the outfit for the boxes to be placed, inspected the load, fastened his own chain binders over the pallet boxes and signed the bills of lading indicating his acceptance of the load for the carrier.
The normal Rogers route from Canton to River Rouge was over route 20. However, shortly after leaving Canton, Carr received a signal from another truck driver that State Highway Patrol truck scales were in operation that day at Hessville on route 20. Whereupon, Carr, who had permitted his outfit to be loaded with the maximum weight permitted by Michigan (apparently an overload under Ohio law), in order to avoid the scales deviated from his usual route to a route of his own choosing. This carried him over several minor roads to route 2 in the vicinity of Lorain. He continued over route 2 to Toledo.
It is conceded that, before the evening of the day in question, Rogers was the only carrier to leave Canton with a load of these particular forgings, and Carr was the only Rogers driver hauling forgings on route 2 that day.
For some 112 miles after leaving Canton, Carr experienced no difficulty with his load. But, while negotiating an "S" curve near Cedar Point and traveling at a speed of 45 to 50 miles an hour, Carr noticed some 15 or 20 forgings fall off his outfit, some of which hit the road and bounced as high as the telephone lines (12 or 13 feet). He did not stop at that time to pick up any of the forgings.
About a mile and a half beyond the point where he noticed that the forgings were falling onto the road, Carr stopped at Red Gables, a truck stop near the eastern city limits of Sandusky. There he inspected his load, found one broken box on the semi-trailer, and with the help of another Rogers driver attempted to repair the broken box. To accomplish the repair he knocked boards off two other pallet boxes, one located on the semi-trailer and the other on the full trailer, the latter box containing forgings similar to the one which struck the plaintiff, added a third board which he was carrying on the semi-trailer, and nailed them onto the broken box.
After making these repairs, Carr continued on his journey to River Rouge. About seven miles west of Port Clinton he had a blowout and stopped to change wheels at the Fremont Oil Company in Port Clinton. The injury to plaintiff occurred about four miles east of Navarre Park (Toledo) at a point where the road was described as "awful rough." Carr averaged 40 to 50 miles an hour over the stretch of road from Fremont Oil Company to Navarre Park.
At Navarre Park, Carr stopped and checked his load. At that time he found forgings, closely similar to the one found in plaintiff's automobile, lying loose on the bed of the full trailer. The box containing these forgings was the one from which Carr had knocked a board to make the repairs at Red Gables.
We believe that a study of the entire record brings Ford within the rule of the Thrash case. Assuming, as we must on the theory presented here, that Ford was negligent in creating a hazard by its method of packing these forgings, we are of the opinion that Rogers was a responsible intervening agent which, after becoming conscious of the hazard, could and should have eliminated it, and by not doing so broke the chain of causation between Ford's negligence and the injury.
Rogers, the common carrier, had exclusive possession and control of the load throughout the journey and had sole responsibility for its transportation. Rogers had actual knowledge of every claimed defect attributed to Ford and was solely responsible for its own willful attempt to correct those defects.
We are not impressed by the argument of plaintiff that Ford had been made aware of the fact that its forgings could slip out, and on previous occasions had slipped out, through the slats of the pallet boxes. Such prior occurrences might well have been the basis for Rogers' refusal to accept this particular load until Ford had substituted a different and safer method of packing. But, having accepted the load, Rogers' transportation thereof and its own attempt to remedy the defect relieved Ford of any responsibility it may originally have had.
The judgment of the Court of Appeals is reversed, and the judgment of the Court of Common Pleas in granting the motion for judgment non obstante veredicto is affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and MIDDLETON, JJ., concur.
MIDDLETON, J., of the Third Appellate District, sitting by designation in the place and stead of TAFT, J., pursuant to Section 2, Article IV of the Constitution.