se under common law theories of negligence because: (a) Plaintiff was defendant's invitee and it owed to him the positive duty to exercise ordinary care for his safety, and to furnish him with a reasonably safe car without any defects which it could have discovered by a reasonable inspection. Simmons v. K.C. Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Gilliland v. Bondurant Co., 332 Mo. 881, 59 S.W.2d 679; Bennett v. Railroad Co., 102 U.S. 577, 26 L.Ed. 235; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Tinkle v. Railroad Co., 212 Mo. 445, 110 S.W. 1086; Roman v. King, 289 Mo. 641, 233 S.W. 161; Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; Cudahy Packing Co. v. Luyben, 9 F.2d 32; Roddy v. Railroad Co., 104 Mo. 234, 15 S.W. 1112; Rooney v. Railroad Co., 220 Mo. App. 273, 286 S.W. 153; Sasnowski v. Railroad Co., 207 S.W. 865; Hawkins v. Railroad Co., 182 Mo. App. 323, 170 S.W. 459; Fassbinder v. Railroad Co., 126 Mo. App. 563, 104 S.W. 1154; Strayer v. Railroad Co., 170 Mo. App. 514, 156 S.W. 732; St. Louis S.F. Railroad Co. v. Ewan, 26 F.2d 619; Waldron v. Payne, 277 F. 802; Teal v. Am. Mining Co., 87 N.W. 837; Moon v. Railroad Co., 48 N.W. 679; St. Louis, I.M. S. Railroad Co. v. Bass, 140 S.W. 860; Haye v. Railroad Co., 120 F. 712. (b) Defendant, in law, had knowledge of the defective condition of the car in question. Brady v. Railroad Co., 49 S.W.2d 24; United States v. Railroad Co., 287 F. 780; Baltimore O.S.W. Railroad Co. v. United States, 242 F. 420; Doyle v. Railroad Co., 31 S.W.2d 1010. (c) The mere fact that plaintiff was a car inspector did not relieve defendant of the duty which it owed to him as its invitee.
In Maher v. Chicago, M. St. P. Ry. Co., 278 Fed. 431, the general duty of the carrier delivering a car for loading is set forth as follows: "It was defendant's duty to deliver a car that was in a reasonably safe condition to be used for the purpose intended." The nature of that duty and its application to the defendant is further explained in St. Louis-San Francisco Ry. Co. v. Ewan, 26 F.2d 619, 620: "The liability of the carrier does not arise out of contract but out of a duty imposed by law. Pennsylvania Railroad Co. v. Hummel (C.C.A.) 167 F. 89, 94. That duty extends, not only to the shipper, who has actually entered into contract with the carrier, but to the employee of that shipper, although, of course, there is no contract between employee and the carrier.
We find those cases, many of which are cited by appellants, dealing with the liability of railroads in analogous situations to be applicable here. They indicate that the carrier's liability outlined in Kane, supra, 290 F.2d at 507, is imposed not on the basis of breach of contract but that of joint tortfeasors. Chicago, Rock Island Pacific R.R. Co. v. Williams, 245 F.2d 397, 401-03 (8 Cir.), cert. denied, 355 U.S. 855 (1957); St. Louis-San Francisco Ry. Co. v. Ewan, 26 F.2d 619, 620 (8 Cir. 1928). The doctrine of privity of contract is not applicable. MacPherson v. Buick Motor Co., 217 N.Y. 382, 389-90, 111 N.E. 1050, 1053 (1916) (Cardozo, J.).
Great Northern's liability to Slechta was not shown to have been premised in any breach of conduct chargeable to Bartlett. The jury by its verdict in this case fixed Great Northern's liability to Slechta because of Great Northern's violation of the Safety Appliance Act. Under that law Great Northern had the primary duty to furnish a boxcar that was not defective for use by employees of Bartlett. St. Louis-San Francisco Ry. Co. v. Ewan, 26 F.2d 619, 8 Cir. Seemingly, it is Great Northern's contention that Bartlett's failure to inspect that boxcar was an intervening cause of Slechta's injury that relieved Great Northern from liability for its failure to comply with the Safety Appliance Act, supra. Such is not a proper concept of applicable law to the facts here. (Cf. St. Louis-San Francisco Ry. Co. v. Ewan, supra.)
This circuit recently had occasion to consider these coexistent duties in Chicago, Rock Island Pacific Railroad Co. v. Williams, supra, 245 F.2d 397, where plaintiff, an employee of the shipper, was injured while loading a defective car which had been supplied by Rock Island. We adhered to our prior decision in St. Louis-San Francisco Ry. Co. v. Ewan, 8 Cir., 26 F.2d 619, at page 620, quoting as follows: "It is a carrier's duty to use ordinary care to deliver cars reasonably safe for the use of shippers and their employees while the cars are being loaded or unloaded.
* * * If the carrier is negligent in furnishing a defective car to the shipper, and the shipper in turn is negligent in furnishing it to his employee to be loaded, the carrier and shipper are both liable to the injured employee; for the proximate cause of the injury is the defective car. But as between the carrier and the shipper the liability of the carrier is primary, for the reason that the shipper has a right to assume that cars furnished have been inspected by the carrier and found reasonably safe."' St. Louis-San Francisco R. Co. v. Ewan, 8 Cir., 26 F.2d 619, 620; Waldron v. Payne, 4 Cir., 277 F. 802; Waldron v. Director General of Railroads, 4 Cir., 266 F. 196; Pennsylvania R. Co. v. Hummel, 3 Cir., 167 F. 89." In Ward v. Kurn, Mo.App., St.L.Ct.App. 1942, 165 S.W.2d 290, 293, the court stated:
In these circumstances we think it was responsible for the results of its negligence in this regard. Jackson v. Chicago, M., St. P. P.R. Co., 238 Iowa 1253, 30 N.W.2d 97; Pennsylvania R. Co. v. Hummel, 3 Cir., 167 F. 89; Copeland v. Chicago, B. Q.R. Co., 8 Cir., 293 F. 12; St. Louis-San Francisco Ry. Co. v. Ewan, 8 Cir., 26 F.2d 619; 75 C.J.S. Railroads § 924, p. 333. In Jackson v. Chicago, M., St. P. P.R. Co., supra, the Supreme Court of Iowa had occasion to consider a case in which the facts were quite similar to those in the instant case except that in the Iowa case the car was furnished by the initial carrier.
When injury in unloading a car is the proximate result of the car's unsafe condition, the delivering carrier is almost invariably held liable, if a reasonable inspection would have revealed the defect and the carrier gave no notice thereof. St. Louis-San Francisco Ry. Co. v. Ewan, 8 Cir., 26 F.2d 619; Copeland et al. v. Chicago, B. Q.R. Co., 8 Cir., 293 F. 12; Missouri Pac. R. Co. v. Sellers, 188 Ark. 218, 65 S.W.2d 14; Doering v. St. Louis O'Fallon Ry. Co., et al., Mo.App., 63 S.W.2d 450; Griffin v. Payne, Director General of Railroads, 95 N.J.L. 490, 113 A. 247; Roy v. Georgia R. Banking Co., et al., 17 Ga. App. 34, 86 S.E. 328; Corbett v. New York C. H.R.R. Co., 215 Mass. 435, 102 N.E. 648. Cf. Wheeling L.E. Ry. v. Rupp, 27 Ohio Cir.Ct.R. 212. Since appellant was under a duty to appellee to exercise reasonable care to discover and give timely notice of defects that might imperil appellee's safety, the only remaining question is whether there was substantial evidence that appellant failed to perform that duty.
If defendant wished an instruction that the evidence was not sufficient on which to base a finding of permanent injury to the brain, a request to that effect should have been made. The assignment of error relative to the alleged excessiveness of the verdict cannot be considered. New York, L.E. W.R. Co. v. Winter, 143 U.S. 60, 12 S. Ct. 356, 36 L. Ed. 71; Lincoln v. Power, 151 U.S. 436, 14 S. Ct. 387, 38 L. Ed. 224; Homestake Mining Co. v. Fullerton, 69 F. 923 (C.C.A. 8); Arkansas, etc., Co. v. Hemler, 281 F. 914 (C.C.A. 8); Sun Oil Co. v. Rhodes, 15 F.2d 790 (C.C.A. 8); St. L.-S.F. Ry. Co. v. Ewan, 26 F.2d 619 (C.C.A. 8). We find no reversible error in the record, and the judgment is accordingly affirmed.
He correctly states that such liability arises out of a duty imposed by law and not from privity of contract. Cases cited in support of this contention are St. Louis-San Francisco Ry. Co. v. Ewan, 8 Cir., 26 F.2d 619; Markley v. Kansas City Southern Ry. Co., 338 Mo. 436, 90 S.W.2d 409, 411-414; Settle v. Baldwin, 355 Mo. 336, 196 S.W.2d 299; Willis v. Atchison, T. S. F. Ry. Co., 352 Mo. 490, 178 S.W.2d 341. Unquestionably, it is a carrier's duty to use ordinary care to deliver cars reasonably safe for the use of shippers and their employees. However, we find nothing in this rule that would impose liability on the defendants under the facts in the instant case.