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Sup. Ct. 40, 42 L. Ed. 390, the plaintiff and another workman were directed by one Finley, who was their foreman or boss in the work in which they were engaged, to work on a pile of broken rock in a certain mining chute of defendant. It was Finley's duty to direct when the rock from any particular chute was to be drawn, and it was his custom to go into the pit and notify the men when he was going to draw the chute. Without such a notice to plaintiff, or his coworker, Finley ordered the chute to be drawn and plaintiff went through with the mass of rock and was injured. The plaintiff had judgment in the circuit court, on the ground that it was the master's duty to provide a reasonably safe place for its employés to work in, to keep the chutes, through which the rock was to be drawn, in good condition, and to notify the workmen engaged in breaking rock when the chute would be drawn, and that the delegation of this latter duty to the night boss did not relieve the master from liability. This judgment was affirmed in the Court of Appeals for the Ninth Circuit. In reversing this judgment, the Supreme Court of the United States (168 U. S. 89, 18 Sup. Ct. 41, 42 L. Ed. 390) uses the following language, which is closely applicable to the present case:
"Finley was not a vice principal or representative of the corporation. · He was not the general manager of its business, or the superintendent of any department of that business. But he was merely the forenian or boss of the particular gang of men to which the plaintiff belonged. Whether he had or had not authority to engage and discharge the men under him, is immaterial. Even if he had such authority, he was none the less a fellow servant with them, employed in the same department of business and under a common head. There was no evidence that he was an unsuitable person for his place, or that the machinery was imperfect or defective for its purpose. The negligence, if any, was his own negligence in using the machinery or in giving orders to the men."
The latest case in the Supreme Court is that of the Northern Pacific Railway Co. v. Dixon, 194 U. S. 346, 24 Sup. Ct. 686, 48 L. Ed. 1006. In this case, the negligence of a local telegraph operator and station agent, in observing and reporting by telegraph to the train dispatcher the movement of trains past his station, which caused the death of a fireman of the company, without any fault or negligence of the train dispatcher, was held not to be the negligence of a vice principal for which the railway company is liable, but the negligence of a fellow servant of the fireman, the risk of which he assumes. Mr. Justice Brewer, in delivering the opinion of the Supreme Court, quotes from Whittaker v. Bent, 167 Mass. 588, 46 N. E. 121, the following felicitous statement by Mr. Justice Holmes: "The absolute obligation of an employer, to see that due care is used to provide safe appliances for his workmen, is not extended to all the passing risks which arise from short-lived causes." B. & O. R. R. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; Central Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269, 40 L. Ed. 418; Railroad Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181; Northern Pacific R. R. Co. v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009; Northern Pacific K. R. Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 994.
The counsel for appellee apparently rely upon the opinion of this court, in the case of Penna. R. R. Co. v. La Rue, 81 Fed. 148, 27
C. C. A. 363. We do not think, however, that the ratio decidendi of that case conflicts with that of our opinion in the present case. The injuries inflicted upon a locomotive fireman in that case, were due to the shifting of large pieces from the top of a car loaded with lumber. The car was a gondola car and the lumber was held in place by wooden standards along the sides. A gondola car, when used as a lumber car, must be equipped as such, and the standards necessary for this equipment must be sufficient for their purpose, that is, long enough and strong enough to hold the lumber piled upon the car in place. These standards are part of the permanent equipment of a car so used, and it was undoubtedly the duty of the defendant company, as being a master's duty, to see that the car in this respect was fit for the purposes for which it was used, by a proper equipment of standards. Some of these standards were of hemlock, instead of oak, as they ought to have been, and gave way to the pressure of the lumber, allowing some of the sticks to protrude, which occasioned the injury to the plaintiff. A defect in the standards or equipment of the car, was a defect in the car itself, as a lumber car, and was due to the negligence of the defendant company, as much as would have been a defect in a box car that allowed any portion of its load to escape, to the injury of one situated as the plaintiff in the case was. Judge Acheson, in delivering the opinion of the court, says:
"In the present case, the negligence which caused the mischief was not the improper or insecure loading of the car, for in this regard there was no fault, nor was this a case of the negligent use by the defendant's employés of safe appliances. The ground of complaint here is. that the defendant failed in the positive duty it owed to the plaintiff to equip the car with reasonably safe appliances for the service in which it was employed. * * * Its whole duty to the plaintiff was not fulfilled, short of the actual proper equipment of the car."
In another place, the learned judge says:
"In the case of a low sided gondola car employed in the transportation of lumber, side standards to keep the load in place *** are appliances necessary for the proper equipment of the car, and as essential to the safe transportation of the load as is a proper car body."
As we think the learned court below erred in refusing defendant's request for peremptory instructions to the jury, to render a verdict for the defendant, and also in refusing defendant's motion for judgment in its favor, non obstante veredicto, the subject of the first, second and third assignments of error, it will not be necessary to consider those assignments which concern alleged errors in the charge of the court.
For the reasons stated, the judgment below is reversed, with direction to enter a judgment in favor of the defendant.
SOUTHERN RY. CO. v. HUBBARD BROS. CO.
(Circuit Court of Appeals, Sixth Circuit. June 5, 1906.)
CARRIERS-ACTION FOR LOSS OF GOODS-EVIDENCE OF DELIVERY TO CARRIER. Defendant railroad company made a contract with a cotton compress company located on a belt line at Birmingham, Ala., reciting that defendant would receive uncompressed cotton for shipment, but for convenience desired a portion of the same compressed, and providing that the compress company would receive and receipt for such cotton from defendant or shippers, compress the same, and load it in cars of defendant, as directed, for which it was to receive payment as therein fixed. It also agreed to be responsible to defendant for any loss or damage to such cotton while in its possession. A through shipment of cotton was made from a point in Mississippi to plaintiff at New York by way of Birmingham, and thence over defendant's road. The initial carrier delivered the cotton to the belt line road, which delivered it to the compress company. The first carrier then paid to defendant its share of the freight, and delivered to it the compress company's receipts. The cotton was not delivered by the compress company to defendant, and was never received by plaintiff, which brought an action against defendant for its value. Aside from such contract, there was evidence of a custom of the initial carrier to make deliveries of cotton to defendant at Birmingham in the manner pursued in this instance. Held, that such evidence warranted the submission to the jury of the question whether the delivery of the cotton to the compress company constituted a delivery to defendant, either because of an agency to receive it, created by the contract, or by the custom which the evidence tended to prove.
In Error to the Circuit Court of the United States for the Western District of Tennessee.
Caruthers Ewing, for plaintiff in error.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.
SEVERENS, Circuit Judge. The plaintiffs, who are citizens of the state of New York, and whose place of business is the city of New York, brought this action against the Kansas City, Memphis & Birmingham Railroad Company, the St. Louis & San Francisco Railroad Company, and the Southern Railway Company, to recover damages for the loss of 100 bales of cotton delivered by Smith & Coughlan to the first-named company at Nettleton, Miss., to be carried by that company and connecting carriers to New York, and there delivered to the plaintiffs. The Kansas City, Memphis & Birmingham Railroad connected directly at Birmingham, Ala., with the Southern Railway. It also connected at Birmingham with the Belt Railroad, operated by the St. Louis & San Francisco Railroad Company, over which cotton intended to be compressed before further transportation was carried to the works of the compress company, where, after being compressed, it was delivered to the next carrier. The 100 bales of cotton referred to were received for shipment at Nettleton, March 6, 1903, and a bill of lading issued showing the consignment of the cotton to the plaintiffs. A draft on the plaintiffs for $4,000 was attached thereto, upon payment of which sum and the indorsement.
of the bill of lading the cotton was deliverable to them. The bill of lading was in the usual form, making each successive carrier responsible for his own fault only, and these words were noted in the routing specifications therein, "Railroad Compress, Birmingham, Ala." The plaintiffs paid the draft for $4,000. The bill of lading duly indorsed was turned over, and the cotton becarne deliverable to them. When the cotton arrived in Birmingham, it was transferred to the Belt Railroad and from the latter it was delivered to the compress company, three car loads on the 18th of March, 1903, and the remaining two car loads on the 19th of the same month. This is the last trace of the cotton. The compress company never delivered it to the Southern Railway Company, but the latter company was notified on March 27, 1903, by the agent of the Kansas City, Memphis & Birmingham Company of the delivery of the cotton to the compress company, and the receipt of the latter for the cotton bearing date March 26th, was handed to the Southern Railway Company at the same time, as was also the unearned freight money, which had been paid in advance. There was also evidence from which the jury might have found that the Southern Railway Company had received earlier notice from the Kansas City, Memphis & Birmingham Railroad Company that the cotton in question had been delivered to the Belt Line Company, for account of the Southern Railway Company for compression, and forwarding by the latter to New York. But, however that may be, the Southern Railway Company made no complaint that the notification of March 27th was not seasonable On proof of these and some other facts to be noticed later on, the plaintiffs gave up the pursuit of the other railroad companies, and confined its suit to the Southern Railway Company, as to which the controversy turned ultimately upon the question whether the compress company was the agent of the Southern Railway Company for the purpose of receiving the cotton. To establish this the plaintiffs relied upon two lines of proof-First, a contract between the railway company and the compress company; and, second, evidence of the previous method of doing business by the Kansas City, Memphis & Birmingham Railroad Company and the Southern Railway Company in transferring freight of this kind at Birmingham by the former to the latter for further transportation. As we think the contractual relations between the railway company and the compress company are of prime importance in determining the liability of the former for the loss in question, it is expedient to set it forth (except some formal parts) as follows:
"Whereas, the compress company is now engaged in operating a cotton compress at Birmingham, in the state of Alabama; and, whereas, during the cotton season of 1902-1903 the railway company will accept uncompressed cotton for through transportation, but, for convenience in forwarding the same, desires that a portion thereof shall be compressed at said compress of the compress company; now, therefore, this agreement witnesseth: That the compress company, for and in consideration of the premises and the sums of money herein agreed to be paid by the railroad company, hereby covenants and agrees:
"(1) That, as and when requested by the railway company so to do, it will promptly receive and receipt for, unload from cars or wagons, shelter
when practicable, compress and load on cars in the order of its receipt, or as may be otherwise instructed by the railway company, all cotton of such dimensions as to make it practicable to compress it to a density, as herein below specified, intended for shipment over the line of the railway company and its connections, and tendered to the compress company for that purpose by the railway company or by shippers, and for such cotton as is so tendered by shippers it will issue to shippers tendering same one single certificate only, covering each lot of cotton designated by one mark. Where the cotton which the compress company is requested by the railway company to receive and handle as above stated is tendered to the compress company of dimensions such as to make it impracticable to compress such cotton to a density as great as 221⁄2 pounds to the cubic foot, the compress company shall immediately notify the agent of the railway company of the tender of such cotton for such instructions as to disposition as the railway company may desire to give.
"(2) That it will well and sufficiently compress all cotton to it as hereinbefore provided, and will place upon each bale of cotton so compressed at least eight bands, so that the density of each bale of cotton so compressed shall not be less than 221⁄2 pounds per cubic foot at the ports, as measured from end to end and over the bands; provided, that if cotton is delivered to the compress by the railway with less than six bands, the bands necessary to make the number of bands equal six shall be put on the bale at the expense of the railway.
"(3) That before loading any cotton compressed by it under the terms of this agreement, it will carefully and properly reband each bale so handled by it.
"(4) That it will load not less than 50 bales of compressed cotton in any standard car of 34 feet in length, excepting remnants, and when loading is completed will cause doors of cars to be closed, sealed, and stripped in proper manner (doors closing tight into the side of a car properly fastened and sealed need no strips), and thereafter will promptly furnish unto the railway company an accurate statement of all cotton loaded in each and every car.
"(5) That it will indemnify and save harmless the railway company against any and all claims, demands, suits, judgments, and sums of money accruing to any person against the railway company for loss or damage to cotton so tendered to, compressed by, or loaded by, the compress company, howsoever such loss or damage may result, except by fire, if the same accrues between the time of delivery of such cotton unto the compress company by shippers or by the railroad company, or the time when the railway company shall have placed cars of uncompressed cotton in position for unloading at the compress company, with way bills, abstracts, or other memoranda or advice, showing that the cars have been placed in position for such unloading and the time when the same have been loaded or reloaded in cars, and the railway company so notified that the cotton has been so loaded or reloaded, or until the railway company shall have been in default for 48 hours in furnishing cars therefor, as hereinafter provided, such indemnity to be effective at whatsoever time such loss or damage may be discovered; and to that end hereby specifically assumes all responsibility for the proper handling, storing, and protection of such cotton while in its possession, as hereinbefore provided, and agrees that the count made by the railway company or its connections of the number of bales of cotton loaded in any car under the seals of the compress company, at the points where such seals are broken, shall be final and conclusive as between the parties hereto for the purpose of this agreement as to number of bales of cotton loaded in such car, such count to be promptly and carefully made and checked.
"(6) That it will pay unto the railway company, upon weekly or monthly bills to be rendered by the railway, any and all sums disbursed by the railway for premiums of insurance against loss or damage by fire to any cotton covered by outstanding bills of lading of the railway, for the full value thereof, while such cotton may be in possession of or upon the premises of the compress company: Provided, however, that the rate of such premiums shall not exceed at any individual compress the average of premiums for the year, or for 146 F.-3