Opinion
April 4, 1962 —
May 1, 1962.
APPEAL from a judgment of the circuit court for St. Croix county: BRUCE F. BEILFUSS, Circuit Judge of the Seventeenth circuit, Presiding. Reversed.
For the appellant Chicago, Rock Island Pacific Railroad Company there were briefs by Bender, Trump, Davidson Godfrey, attorneys, and Rodger S. Trump of counsel, all of Milwaukee, and oral argument by Rodger S. Trump.
For the appellant Minneapolis, St. Paul Sault Ste. Marie Railway Company there were briefs by Reginald W. Nelson of Milwaukee, attorney, and Edward M. Glennon of Minneapolis, Minnesota, of counsel, and oral argument by Mr. Nelson.
For the respondents there was a brief by Wilcox Sullivan of Eau Claire, and Warren Newcome of St. Paul, Minnesota, for the Chicago, St. Paul, Minneapolis Omaha Railway Company, and by Stafford Pfiffner of Chippewa Falls, for Doughboy Industries, Inc., and oral argument by Francis J. Wilcox and Robert F. Pfiffner.
Action by plaintiff Huck against defendant Chicago, St. Paul, Minneapolis Omaha Railway Company (hereinafter "Omaha") to recover for personal injuries. Doughboy Industries, Inc. (hereinafter "Doughboy"); Chicago, Rock Island Pacific Railroad Company (hereinafter "Rock Island"); and Minneapolis, St. Paul Sault Ste. Marie Railway Company (hereinafter "Soo Line"); were later interpleaded as additional defendants. Among the cross complaints served and filed were those by Omaha and Doughboy against Rock Island and Soo Line seeking contribution. Part of the facts hereinafter related appear in the reports of two prior appeals in this proceeding found in 5 Wis.2d 124, 92 N.W.2d 349, and 5 Wis.2d 130, 92 N.W.2d 352.
Plaintiff Huck was injured November 23, 1955, while in Doughboy's employ, allegedly because of a defective hand brake on a loaded railroad boxcar which had been spotted on an Omaha spur track adjacent to Doughboy's New Richmond mill. There was a substantial grade in this spur track. The car was owned by the Southern Railway Company, and had been spotted by Omaha near the top of the grade with the hand brake set. On the day of the accident, Huck and fellow employees had unloaded another car on the same spur track some distance downgrade from the Southern car. Huck ascended to the top of this unloaded car while other Doughboy employees proceeded to pry the loaded Southern car into motion so as to "nudge" the unloaded car out of position and place the Southern car where it could be conveniently unloaded. This procedure followed the customary practice by which cars were moved. In so doing, a Doughboy employee by the name of Larson released the hand brake on the Southern car and then found the brake was defective and could not be manipulated so as to hold the speed of the car in check as it moved downgrade. Because the speed could not be controlled, the Southern car struck the unloaded car with great force. The impact knocked Huck off the unloaded car onto the track and one of the wheels of the loaded Southern car ran over his leg, severing it.
Earlier in November, the Chicago, Great Western Railway Company (hereinafter "Great Western") had spotted the Southern car at the plant of the North Iowa Co-operative Processing Association at Mason City, Iowa. There it was loaded with soybean meal and consigned to Doughboy at New Richmond under a bill of lading which designated Rock Island as the initiating carrier and Soo Line as the delivering carrier. On November 16th the loaded car was delivered by Great Western to Rock Island, which carried it to a transfer point in Minnesota where it was delivered to the Minnesota Transfer Railway Company (hereinafter "Transfer Railway"). Prior to this transfer, the Southern car had been inspected by Rock Island inspectors as part of a freight train, and no defects had been found. Transfer Railway also had inspected this car, as agent for Soo Line, and had found no defects. The car was then transferred to Soo Line which carried it to New Richmond. While Soo Line had a spur track adjacent to Doughboy's plant, Doughboy required that all cars of meal be delivered to the Omaha spur track servicing the plant. On November 19th the car was interchanged between Soo Line and Omaha. Later that day, an Omaha crew moved it off the interchange track and placed it on a storage track in Omaha's New Richmond yard pending notification that Doughboy was ready to receive it. There it remained until November 22d when Omaha spotted it on the Doughboy spur track. There is no evidence that it was necessary for Rock Island, Transfer Railway, or Soo Line to set the hand brake while the car was in their custody.
Prior to trial of plaintiff Huck's action, Omaha settled with Huck for $82,000. One half of this amount was contributed by Doughboy pursuant to the indemnity agreement brought before this court on a prior appeal reported in 5 Wis.2d 124, 92 N.W.2d 349. Trial was then had on Omaha's and Doughboy's cross complaints against Rock Island and Soo Line for contribution. A special verdict was submitted to the jury. The first question inquired whether the hand brake on the Southern car was in a defective condition at "all times material" between the 12th and 23d of November, 1955, inclusive. This was answered "Yes" as a matter of law by the court. The jury, by its answers to other questions, found that Omaha, Rock Island, and Soo Line were each causally negligent as to their inspection of the hand brake, and that Huck was not negligent as to his own safety. It attributed 75 percent of the total negligence to Omaha, 15 percent to Rock Island, and 10 percent to Soo Line.
Judgment was entered June 2, 1961, awarding Omaha and Doughboy joint recovery of $27,333.33 from Rock Island and a like sum from Soo Line, and awarding Omaha and Doughboy recovery of their taxable costs and disbursements from Rock Island and Soo Line. Rock Island and Soo Line have appealed from this judgment.
While other questions are raised by the briefs of appellants Rock Island and Soo Line, we deem the controlling issue on this appeal to be whether there is any credible evidence to support the jury's findings that appellants were negligent as to their inspection of the hand brake on the Southern car.
Two of the other questions which we find it unnecessary to resolve are: Whether Soo Line or Omaha was the delivering carrier and the other an intermediate carrier in so far as Huck was concerned; and, if Soo Line was an intermediate carrier, whether it can be held liable for injuries to Huck, as an employee of the consignee Doughboy, on the ground of negligent inspection.
In our opinion in the prior appeal of Huck v. Chicago, St. P., M. O. R. Co. (1958), 5 Wis.2d 130, 135, 92 N.W.2d 352, we mistakenly stated that the parties were in agreement on the "fundamental rule of law involved," and then cited authorities holding that an intermediate carrier would not be liable to an employee of the consignee in such situation. The parties actually were then, and are now, very much in disagreement as to whether this rule of law is applicable to a defect in the operating mechanism of a freight car, such as a hand brake. However, there can be no disagreement that the law imposes a duty of reasonable inspection upon an intermediate carrier with respect to employees of connecting carriers. 44 Am. Jur., Railroads, p. 595, sec. 381; 74 C.J.S., Railroads, p. 901, sec. 368; Chicago N.W. R. Co. v. Chicago, R. I. P. R. Co. (D.C. Iowa 1959), 179 F. Supp. 33, affirmed (8th Cir. 1960), 280 F.2d 110. In any event, if either carrier is to be held liable for contribution in the instant case, it would have to be on the basis of failing to perform a duty of reasonable inspection
Additional authorities so holding are 75 C.J.S., Railroads, p. 337, sec. 924d (2); Watterson v. New York Central R. Co. (6th Cir. 1956). 235 F.2d 114; Lima v. Pennsylvania R. Co. (D.C. Mass. 1952), 105 F. Supp. 97.
The duty of reasonable inspection imposed upon originating and intermediate carriers is "to ascertain whether there is any fairly obvious defect in its construction or state of repair which constitutes a likely source of danger." (Emphasis supplied.) Ambrose v. Western Maryland R. Co. (1951), 368 Pa. 1, 8, 81 A.2d 895, 898. The Ambrose Case was cited by this court in Bachmann v. Chicago, M., St. P. P. R. Co. (1954), 266 Wis. 466, 63 N.W.2d 824, where a defect in a car door was held to be one which the jury could find was discoverable by a reasonable inspection.
The defect in the instant hand brake consisted in wear of a shaft, bushings, and gears inclosed in a metal housing. The result of this wear was that, when the wheel was manipulated by hand to set the brake, the gears would "climb" and lock so that the brake could not be set. If the jury's finding of negligent inspection against Rock Island and Soo Line is to stand, it is conceded that it must be upon the testimony of respondents' witness La Venture. La Venture is a New Richmond mechanic of thirty years' experience, but with no prior experience with railroad hand brakes. He testified that the above-described defects were discoverable by one making an inspection of the brake mechanism, as installed on the car, in two ways: (1) By manipulating the brake wheel; and (2) by observing the play in the shaft and bushing which pierced the rear housing plate.
However, respondents concede that Rock Island's and Soo Line's inspectors had no duty to manually manipulate the wheel. This is clear from the following statement appearing at page 35 of respondents' brief:
"Again may we reiterate that we do not claim that a manual operation of the brake was required as a part of the initial reasonable inspection. A visual inspection properly made would have disclosed, as the jury found, the wear in the shaft and bushing thereby placing the railroads on notice of the defect and requiring handling or operation. The trial court in its instruction on the duty of inspection did not intimate or suggest that such manual operation was required in order for the railroads to have exercised ordinary care in inspection. It would have been error had the trial court given the instruction requested."
Therefore, whether there was any negligence boils down to what was observable with respect to the one bushing and shaft which were visible when looking at the rear plate of the housing. Nothing would be visible by an inspector walking along the ground, so we are only concerned with what could be seen by an inspector walking along the top of the car. The top of the brake wheel is about level with the top of the car platform on which an inspector would walk, while the top of the housing is slightly lower than this platform. Thus, the inspector would be looking down a distance of at least five feet, almost at a right angle, to view the rear housing plate surface. The photograph, Exhibit 9 (a very poor reproduction of which appears at page 350 of the appellants' appendix), indicates what is visible when so viewed. This photograph shows the open end of the bushing but not the end of the shaft. This is because the end of the shaft is recessed within the bushing. However, La Venture stated that the end of the shaft, although recessed within the bushing, was visible to a car inspector. When testifying, La Venture had a new brake assembly at hand with which to demonstrate, as well as the original brake. He measured the size of the bushing opening on both and found the new one to be under 7/8 inch in diameter and the old one over 7/8 inch in diameter. However, his measurements showed a difference of only 1/16 inch between the two. The total play due to wear of both the shaft and the bushing was between 1/8 and 1/4 inch. He testified that viewed from the rear, the bushing was not elongated and that this was due to the fact that the shaft did not extend to the outer edge of the bushing. Thus, there was no wear on the outer end of the bushing.
Certainly, no light could be seen through the housing because of this worn expansion of the center of the bushing. It would be wholly unreasonable to expect a brakeman, or other inspector, walking along the top of the car and looking down almost at a right angle a distance of five feet at a 7/8-inch recessed opening to discern a play of 1/8 inch to 1/4 inch inside such opening between the bushing and shaft. Clearly this was not a "fairly obvious defect" within the rule of the Ambrose Case. Therefore, it is our conclusion that there is no credible evidence to support the jury's findings that Rock Island and Soo Line were negligent with respect to inspection.
However, it is not surprising that the jury made these findings. In the first place, La Venture testified, with respect to defects in the moving brake encased within the housing, that the excessive play present in the shaft and bushing was discoverable upon moving the wheel with which this brake was manipulated. Second, the trial court's instruction was couched in general language which did not caution the jury that, in answering the questions relating to negligence in inspection, no defects were to be considered which were not visible to the eye of one walking along the ground or atop the car. This last comment is not to be interpreted as a criticism of the trial court because the instructions with respect to inspection were proper as given in the absence of a request by appellants for an instruction that would have more specifically pinpointed appellants' duty in that respect.
By the Court. — Judgment reversed and cause remanded with directions to dismiss respondents' cross complaints against appellants.