Summary
In Robirtson the railroad, which supplied a defective car, had hope of ultimate future reward by way of increased business as the result of the use of the car.
Summary of this case from Federal Compress v. Swilley Gin Co.Opinion
No. 31472.
January 7, 1935.
1. BAILMENT.
Supplier of chattel for another's use is subject to liability for injury caused by use in manner for which and by a person for whose use it is supplied if supplier knows or should realize that chattel is or is likely to be dangerous for use for which it is supplied, has no reason to believe that those for whose use chattel is supplied will realize dangerous condition, and fails to exercise reasonable care to inform them of its dangerous condition or of facts making it likely to be so.
2. BAILMENT.
Supplier of chattel to another to be used for supplier's business purposes is liable for injury resulting from use if he has failed to exercise reasonable care to make chattel safe for use for which it is supplied or failed to exercise reasonable care to discover dangerous condition and give warning.
3. RAILROADS.
In action by employee of Creosote Company for injuries sustained on railroad car, declaration alleging railroad supplied cars to Creosote Company to aid in production and facilitate speedy loading and shipment by railroad held insufficient to charge railroad with liability for furnishing a defective chattel to another, where cars at time of injury were being used solely in Creosote Company's business.
APPEAL from the Circuit Court of Harrison County.
T.J. White and Carl Marshall, both of Gulfport, for appellant.
The rule is very familiar in our jurisdiction, we believe, that whenever one contractually undertakes with another to perform an act, a duty arises from the mere operation of law to so perform the contractual obligation as to avoid injury to third persons, with whom there is no privity of contract, but who might reasonably be expected to have legitimate contact with the performance; and especially is this true as to injuring such third persons by concealed dangers negligently arising from the performance, of which they are not aware.
45 C.J., Negligence, 650.
No proposition is more firmly established in the law of these cases than that the duty of the railroad to avoid injury to any person that it might reasonably expect to make use of one of its cars does not arise out of contract, but is a duty created by law.
St. Louis-San Francisco Ry. Co. v. Swan, 26 F.2d 619; Continental Fruit Co. v. Leas, 110 S.W. 129; Sasnowski v. M. O.R.R. Co., 207 S.W. 865; Owens v. Y. M.V.R.R. Co., 94 Miss. 378, 47 So. 578; Mississippi Central Railroad Co. v. Lott, 118 Miss. 809, 80 So. 277; Moon v. Northern Pacific R. Co., 46 Minn. 106, 48 N.W. 679, 24 Am. St. Rep. 194; 1 Shearman and Redfield on Negligence, sec. 116; Bigelow on Torts, 614.
The Mississippi authority holding that a railroad company that leases its property to another road is not liable for injuries received by the lessee's employees from defectiveness of the leased equipment, on the facts is not opposed to the plaintiff's contention here; because as the court will observe from a perusal of the authority, in each instance the property leased was of patent defectiveness, known to the employees of the lessee when they were using the property.
Teal v. American Min. Co., 87 N.W. 837; Mehegan v. Railroad Company, 178 Mich. 694, 141 N.W. 905.
Burch, Minor McKay, of Memphis, Tennessee, and Gardner Backstrom, of Gulfport, for appellees.
Negligence can proceed only from a duty imposed by the contract, or by the statutes of the state, or by a well defined public policy.
Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73.
There were no contractual relations between the defendants and the plaintiff. He could claim no right thereunder.
Warner v. Synnes and West Oregon Lumber Co., 114 Or. 451, 230 P. 362, 44 A.L.R. 904; Necker v. Harvey, 49 Mich. 517; Curtain v. Somerset, 140 Pa. St. 70, 23 Am. St. Rep. 220.
There is no statute fixing liability on the defendants under the facts pleaded in this case irrespective of whether the contract is considered or left out of view entirely.
Public policy does not require the defendants to respond in damages to the plaintiff in this case under the facts alleged in the amended declaration irrespective of the invalidity of the alleged contract.
Buckner v. Railroad Company, 72 Miss. 873, 18 So. 49; Illinois Central Railroad Company v. Price, 72 Miss. 862, 18 So. 415; Thompson on Negligence, sections 4374 and 4377; Railway Co. v. Avery, 109 Ill. 314; Citizens Light Co. v. Kendrick, 6 Ala. App. 423, 60 So. 526; Pacific Telephone Co. v. Starr, 206 Fed. 517, 124 C.C.A. 223, 46 L.R.A. (N.S.) 1123.
If the defendants furnished the flat car in question either by loaning or renting the same to the Creosoting Company, the burden of inspection was on the Creosoting Company, and it was not thereby relieved from its nondelegable duty to furnish its servants safe instrumentalities with which to work. There is no principle of law nor any well defined public policy which would absolve the Creosoting Company from liability, and place the responsibility on the defendants.
M.K. T. Ry. Co. v. Merrill, 65 Kans. 436, 70 P. 358, 93 Am. St. 287; McCallion v. Missouri P.R. Co., 88 P. 50, 9 L.R.A. (N.S.) 866; Fowles v. Briggs, 116 Mich. 425, 72 Am. St. Rep. 537; Mahogany v. Ward, 27 Am. St. Rep. 754; 39 Cyc. 333, sec. 452; Ladd v. R.R. Co., 193 Mass. 359, 79 N.E. 742, 9 L.R.A. (N.S.) 874.
Plaintiff went upon the car charged with the knowledge that the duties owing to him by the Creosoting Company were not delegated to the defendants and were neither curtailed nor enlarged by the contract in question.
Louisville Nashville Railroad Co. v. Mottley, 219 U.S. 467, 31 S.Ct. 265; McNeill v. Railroad Co., 132 N.C. 510, 48 S.E. 34, 95 Am. St. R. 641; Railroad Co. v. Burnseed, 70 Miss. 437, 12 So. 958, 35 Am. St. Rep. 656.
Argued orally by Carl Marshall, for appellant, and by Oscar Backstrom, for appellee.
The appellant instituted this suit in the circuit court of Harrison county against the Gulf Ship Island Railroad Company and the Illinois Central Railroad Company seeking to recover damages for personal injuries alleged to have been sustained by him on account of the negligence of the defendants in furnishing his employer, the Gulfport Creosoting Company, a defective flat car. The original declaration was amended, and thereafter demurrers of the defendants to the amended declaration were sustained. The appellant declined to further amend his declaration, and final judgment was rendered against him, from which this appeal was prosecuted.
The amended declaration charged, in substance, that the appellees are common carriers engaged in the transportation of freight and passengers for hire; that the Gulfport Creosoting Company owns and operates a plant for treating timber, which is located, near the main line of the railroad of the appellees, and is connected therewith by a spur track constructed by the appellees; that all of the rail shipments of the Creosoting Company's products moved initially over the appellees' railroad on freight cars furnished by them to the creosoting plant; that in moving its products from the treating tubes or cylinders to the storage yard where the same were assembled, stored, and stacked for ultimate shipment, it was necessary to use railroad cars; that on account of an excess of freight cars and a great deficiency of railroad freight traffic, it was necessary for the appellees, and other railroad enterprises, to stimulate the shipment of freight by aiding in the production of all commodities, including the products of the Gulfport Creosoting Company; that for this reason, and in order to assist the said Gulfport Creosoting Company in the production and ultimate and speedy shipment of its products, the appellees, in pursuance of a custom, agreement, and understanding with the said Creosoting Company, would deliver to it over said spur track flat cars in excess of the immediate requirements for shipments, and long prior to loading for shipment; that these cars were delivered under an assurance that they had been properly inspected and were free from hidden defects, traps, and pitfalls, and were safe for use by the Creosoting Company, its employees, servants, and all persons lawfully thereon.
The declaration further charged that under the understanding, agreement, and custom between the appellees and the Creosoting Company, the cars so delivered were used by the Creosoting Company in intraplant movements of its products for the purpose of assembling, storing, and stacking them in its storage yard; that on May 4, 1932, the appellees delivered to the Creosoting Company's plant eight flat cars; that on May 10, 1932, in accordance with the understanding, custom, and agreement, and under assurances of proper inspection and safety, the Creosoting Company was using one of these flat cars within its plant, and on its tracks, in transferring creosoted poles from its treating cylinders to its storage yards, there to be unloaded and stored in assembled stacks or piles for ultimate shipment; that said flat car, when so delivered, contained rotten and decayed flooring; and that while unloading poles from said car the appellant, an employee of the Creosoting Company, stepped on the rotten and decayed flooring of said car and was injured as a result thereof. It was further charged that a proper inspection of the car would have revealed the hidden defect or trap, and that appellees were negligent in failing to properly inspect said car, and violated a duty owed by them to the Creosoting Company, its employees, and all persons who might lawfully be upon said flat car.
The separate demurrers of appellees challenged the sufficiency of the declaration upon the following grounds:
"1. The master, Gulfport Creosoting Company, alone, was under duty to furnish its servant, the plaintiff, a safe place in which to work;
"2. That, as shown by the amended declaration, at the time of the alleged injury, an independent efficient intervening cause, namely, the exclusive possession of and control over the alleged defective flat car, was then being exercised by the Gulfport Creosoting Company, a responsible human agency, which had broken the causal connection between the defect in the flat car and appellant's injury;
"3. That, as shown by the amended declaration, the Gulfport Creosoting Company had adopted said flat car as one of its own instrumentalities;
"4. That, as shown by the amended declaration, plaintiff was not an invitee of defendants on said flat car;
"5. That, as shown by the amended declaration, plaintiff was a mere licensee on the flat car in question;
"6. That the alleged `agreement, understanding and custom' violated the Commerce Act of the United States and the statutes of this state against rebates and preferences; and
"7. That the amended declaration stated no cause of action."
The purpose for which the railroad car was being used at the time of appellant's injury was one incident solely to the business of the Creosoting Company. While the declaration charges that, on account of an excess of freight cars and a deficiency of freight traffic, it was necessary for the appellees to do everything possible to aid and assist the said Creosoting Company in the production and ultimate shipment of its products, it does not appear from the averments of the declaration that the particular use made of the car by the Creosoting Company, that is, its use in a strictly intraplant movement of its products for convenient storage for ultimate shipment, was in any way connected with, or in aid of, appellees' business of transporting such products at such future time as the business of the Creosoting Company required. For its own purposes, in which the appellees are not shown to have had any business interest, the Creosoting Company had adopted the flat car as one of its own instrumentalities, and in such case we think the correct rule is stated in American Law Institute Restatement, Torts, vol. 2, section 388, reading as follows:
"One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
"(a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied;
"(b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and
"(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so."
The declaration does not charge facts which bring the case within the rule of liability above stated. In support of his contention that the demurrers should have been overruled, the appellant relies strongly on the case of Mississippi Central R.R. Co. v. Lott, 118 Miss. 816, 80 So. 277, wherein it was held that the railroad company was liable to the servant of a lumber company, who was engaged in loading for immediate shipment a car that had been selected and spotted for that purpose by the railroad company. That case is not applicable to the facts alleged in the case at bar, but it comes directly under the principles announced in American Law Institute Restatement, Torts, vol. 2, sec. 392, which is to the effect that the supplier of a chattel to another to be used for the supplier's business purposes is liable, if he has failed to exercise reasonable care to make the chattel safe for the use for which it is supplied, or failed to exercise reasonable care to discover its dangerous character and condition and give warning of its dangerous condition. The only charge in the declaration that might possibly be construed as tending to show that the appellees had a business interest in the use of the flat car at the time of appellant's injury is the averment that it was delivered to the Creosoting Company to aid it in the production of its products and to facilitate the speedy loading and shipment of its products over said railroad line by aiding in the assembling and stacking and assorting of said material for ultimate loading and shipping. We think this charge, when taken in connection with all the averments of the declaration as to the business relations between the appellees and the Creosoting Company, is too indefinite and sets forth facts too remote to constitute a business interest on the part of the appellees in the mere intraplant movement of the Creosoting Company's products. The judgment of the court below will therefore be affirmed.
Affirmed.