Hedgcorth v. Missouri Pacific Railroad

TITUS, Judge. On January 29, 1971, plaintiff was a 10-year veteran mill foreman for Independent Gravel Company (Independent). He and other Independent employees were undertaking to raise and lock into place a fold-down door on one end of an empty "drop end gondola [railroad] car” when the 1,100 pound door fell and injured plaintiff’s right foot and leg. St. Louis-San Francisco Railway Company (Frisco) owned the car and Missouri Pacific Railroad Company (MoPac) had delivered it to the siding where the accident occurred. Plaintiff et uxor sued both railroads and at the close of their evidence the trial court directed the jury to return a verdict for the defendants. This appeal ensued. The fold-down doors at the ends of the car were hinged at the bottom and resting on the interior floor of the gondola when it was delivered onto Independent’s siding. As was their practice, plaintiff and his crew intended to raise and secure in upright position the end doors so that the interior of the car could be cleaned before it was loaded with processed tailings or “chat.” On the average of “once or twice a week” or “a good many times,” plaintiff and his crew had encountered cars whose end doors were “out of shape,” “bent and hard to raise” or “hard to move . . . with trouble.” Before anything untoward happened on the concerned occasion and prior to the time plaintiff et alii undertook to raise the particular end door into place, each of them saw and it was “perfectly obvious” that the door was “sprung up away from the floor, the top edge of it was sprung bad,” it “was out of shape . . bent on the hinge end,” “was bent” and “going to be hard to raise and required some sort of assistance.” Albeit plaintiff had the right to “bad order” (reject) the car upon observing the condition of the end door, he didn’t do so because “I didn’t see anything too much different than others that I had put up. It was bent, we had put up a lot of bent ones.” When it became apparent that plaintiff and his crew would not be able to manually raise the end door into place because of its condition, supra, they determined to employ a method which had previously proved successful. One of the crew obtained a chain belonging to Independent. It was 18 to 20 feet long with hooks on either end and had. been used in similar processes “time after time.” One end of the chain was hooked onto the top of the end door; the other was hooked to the rear of an Independent-owned truck operated by an Independent employee. The idea was that when the truck was driven forward, the chain would pull the end door upright into place so that a catch could be dropped over the top of the door and hold it in place or that other methods could be used to position the door into place for loading of the car. Although the latching of the door could be accomplished from outside the car, plaintiff and another Independent employee remained inside during the door lifting procedure. Two Independent employees and plaintiff testified in regard to the event in litigation. One employee recounted that the door had been pulled by the chain and truck to “about a 45 degree angle ... if not more” before a link in the chain broke allowing the door to fall back into its original position inside the railroad car. The other employee opined the door “did not even get half way [sic] off the floor” before the chain broke. On direct examination plaintiff agreed with the others but on cross-examination acknowledged that when he deposed before trial he had stated the chain broke, causing the door to fall, after the door was pulled upright and struck against the retaining flanges on the end of the car. Including plaintiff, the witnesses were of one mind that it “was the breaking of the chain that was the unusual circumstance that happened that day” and that “the only thing that was different on this occasion from any other occasion when you [475] had this problem presented to you was that on this occasion, the chain broke.” Plaintiff’s foot was caught by the falling end door as he, still inside the car, stepped forward “to drop the catch down over the top of the door” at the same instant “the chain snapped.” Following the casualty, the crew used the “same procedure,” with a different chain, to raise the door “up and blocked up under it so it would stay up so we could load it.” It is interesting to note that in the argument portion of plaintiff’s brief, he repeats:. “The evidence clearly shows that the bent and defective condition of the door was an apparent and obvious condition and therefore discernible by visual inspection. . . . The evidence above shows that the bent condition of the door was an obvious and visible defect. Further, the evidence shows that the visible condition of the door, alone, was sufficient to indicate that the door would be difficult to move. . . . The above discussion shows that there is an abundance of specific evidence concerning the nature of the defect in the door and concerning the fact that the defect was easily discoverable by a visual inspection.” By now it is axiomatic that when a railroad delivers a car to a consignee whose employees are to load or unload it, the railroad is negligent if it fails to exercise ordinary care to see that the car is in such condition that the consignee’s employees, if exercising due care for their own safety, can enter the car with reasonable safety for loading or unloading it and either to make repairs, if required, or warn of any unsafe condition. Sampson v. Missouri Pacific R. Co., 560 S.W.2d 573, 578-579[2] (Mo. banc 1978). Notice should be made that the duty just described is in the disjunctive, not conjunctive. In other words, the railroad must either repair or warn — not both. We surmise that plaintiff’s repetitive arguments above quoted anent the evidence making it clear that the door was obviously and easily discoverable to be defective and difficult to move, were designed to augment his assertions that defendants did not perform their inspection duties and failed to either remedy or warn of the defect. But even acceptance of the proposition that defendants initially did, in fact, breach their duties, their duties became discharged when the defect became “equally apparent or observable by a person of ordinary intelligence and experience who undertakes the [loading or] unloading of a railroad car as a consignee.” Southern Pac. Transp. Co. v. Reed, 114 Ariz. 167, 559 P.2d 1082, 1083[2] (Ct.App.1976); Garner v. Pacific Electric Railway Company, 202 Cal.App.2d 720, 21 Cal.Rptr. 352, 360 (1962); 75 C.J.S. Railroads § 924, at p. 335; cf. Reed v. Missouri-Kansas-Texas R. Co., 362 Mo. 1, 7-8, 239 S.W.2d 328, 332 (banc 1951). This comports with the rule that a possessor has no duty to warn his invitees of premises’ defects which are as well known to the invitee as to the occupant, or which are obvious or should have been observed by the invitees in the exercise of ordinary care. Bohler v. National Food Stores, Inc., 425 S.W.2d 956, 958—959[1, 2] (Mo.1968); Coleman v. Buehner, 444 S.W.2d 16, 22[2] (Mo.App.1969). Even if the breaking of the chain link, owned by Independent and which probably caused the door to fall, be ignored as the lone cause of the accident, plaintiff’s evidence unerringly demonstrates that prior to any attempts to raise the door, he and all members of his crew were fully cognizant of the door’s defects which, plaintiff contends, caused the casualty. This knowledge obviated any duty on the part of Frisco or MoPac to warn that the door did not function properly for, as previously seen, no duty on defendants’ part existed to warn plaintiff of that which he already knew. Plaintiff was Independent’s employee. He was not supervised by the defendants. Therefore, when plaintiff chose, despite knowledge of the defect in the railroad car, to proceed with methods selected by him in raising the door and was injured, his injuries were not defendants’ responsibility. Glusac v. Atchison, Topeka & Santa Fe Railway Co., 52 Cal.Rptr. 417, 420-421[7, 8] (Ct.App.1966). [476] In epilogue we say: Irrespective of the trial court’s reason for sustaining defendants’ motions for directed verdict, if it properly did so its announced reason for doing it is immaterial on appeal. Stewart v. Zuellig, 336 S.W.2d 399, 402[1] (Mo.1960). The judgment nisi is affirmed. BILLINGS, J., concurs. MAUS, J., dissents in separate dissenting opinion. HOGAN, J., concurs in separate concurring opinion. FLANIGAN, C. J., recused. GREENE, J., not participating because not a member of the court when cause was submitted.