#### Spears, Appellee, *v.*The New York Central Rd. Co. et al., Appellants.

(Decided March 6, 1939.)

*Mr. Leo J. Brumleve, Jr.,*and *Mr. John W. Wilke,*for appellee.

*Messrs. Harmon, Colston, Goldsmith & Hoadly*and *Mr. J. Louis Kohl,*for appellants.

Hamilton, P. J.

'This is an appeal on questions of law.

The plaintiff Larry Spears, appellee here, brought an action against the defendants, appellants here, for damages for personal injuries suffered by him while engaged in unloading a shipment of materials at the plant of The Joslin-Schmidt Corporation, located in Lockland, Ohio.

The Joslin-Schmidt Corporation operates a fertilizer plant at Lockland, Ohio. In May, 1934, it purchased a carload of fleshings or tanner’s offal. The tannery company was engaged in the tanning business, and *405the so-called fleshings consisted of refused and damaged hides and parts thereof and scrapings. The tannery company consigned the shipment to The JoslinSchmidt Corporation at Lockland, Ohio.

The material was loaded in a car belonging to the Reading Railroad. The car was of the gondola type, with steel sides and two and three-fourths inch oak plank floor. The car was shipped over The Cincinnati, New Orleans *&*Texas Pacific Railway Company as the initial carrier, which railroad delivered the car at the Millcreek yards of the defendant, The New York Central Railroad Company in Cincinnati, Ohio. The New York Central Railroad Company picked up the car in the Millcreek yards and attached it to its train going north, and the car was carried by The New York Central Railroad Company to its yards in Sharonville, Ohio, where the car was given the Carmack Amendment inspection requirements, after which it was picked up by The New York Central Railroad Company and conveyed to Lockland, Ohio, and was there placed at the unloading platform on the private.siding of The Joslin-iSchmidt Corporation. The JoslinS'chmidt Corporation put its servants and employees at work unloading the car of fleshings. Among the workmen was the plaintiff in this case. They unloaded the car with forks. A portion of the ear had been unloaded, but while the floor of the car was still covered with the offal, and Spears was engaged in lifting a fork full of the material, his foot shoved through the floor of the car. His leg went through to the groin, causing serious injuries. After the car was entirely unloaded, it was discovered that there were three or four other holes similar to the one at the place in the ear where Spears was injured. It is not clear whether the hole existed at the time or whether the floor board gave way through rottenness or decay. ■

The charge of negligence in the petition is in substance that the defendant, The New York Central Rail*406road Company, was the delivering carrier at the time it placed the car on the siding for the purpose of unloading, and knew that in order that the car might be unloaded with an ordinary degree of safety by the agents and employees of The Joslin-Schmidt Corporation, the consignee, it was necessary that the car should be in an ordinary and reasonably safe condition for the agents and employees of The JoslinSchmidt Corporation to unload; that the defendant, The New York Central Railroad Company, neglecting its duty in the premises and in utter disregard of the safety of the agents and employees of The JoslinSchmidt Corporation, carelessly and negligently used and furnished a car which was in a dangerous and defective condition for the agents and employees of The Joslin-Schmidt Corporation to unload, in that one of the floor boards of the car had become and was rotten, weak and cracked, and in such defective condition that the floor board was not strong enough to bear the weight of anyone who should go into and upon the car and floor board for the purpose of unloading; that the defendant railroad company had full knowledge that this car, because of the dangerous and defective condition of the floor board, was not in an ordinary and reasonably safe condition for the agents and employees of The Joslin-iSchmidt Corporation to unload, or, if the defendant had exercised ordinary and reasonable care in the premises, the defendant would have had such knowledge; and that as a direct result of this negligence of the defendant, the plaintiff received certain injuries, which are set forth in the petition.

The answer of the railroad company was a general denial, after admitting its corporate existence and its operation of the railroad.

The trial court submitted the question to the jury under the proposition of law that there was a responsibility on the part of the railroad company as the *407delivering carrier to furnish a car reasonably safe for unloading, and on the sole ground that the defendant railroad company knew it was furnishing a defective car, unsafe for the purpose, or that, if the defect was a patent one, it would only be liable for failure to make reasonable inspection to ascertain the defect, and to use due care under the circumstances.

The court charged the jury that the railroad company would not be liable for latent defects.

The trial resulted in. a verdict and judgment for plaintiff in the sum of $11,000. On considering the motion for a new trial, the court found the verdict was excessive, but not sufficient to show passion and prejudice, and that the excessive amount would be corrected by requiring a remittitur of $4,000, to which counsel for plaintiff agreed, and judgment was entered for the sum of $7,000. From that judgment the railroad company appeals to this court, specifying fourteen grounds of error, which may be summed up in the proposition that the railroad company, under the circumstances, owed no duty to the plaintiff. This question was presented on the motion for an instructed verdict, which was overruled, and that constitutes one of the assignments of error. Others, going to the question of the weight of evidence, are presented in different ways, such as excessive verdict and verdict under passion and prejudice, verdict contrary to law and contrary to the weight of the evidence, not sufficient evidence, and so forth.

Another proposition, which counsel for appellants claim requires a reversal is that The New York Central Railroad Company was not in a position of line carrier or delivering carrier, that at most it was but a switching carrier, and simply the agent of the line carrier to spot the car at consignee’s place of business, and, therefore, there was no liability as a delivering carrier, and that in fact the initial carrier and *408the line carrier were the carriers for the switching agent, The JSTdw York /Central Railroad Company, defendant.

We do not find any authorities, with the exception of one or two cases, making such distinction between a delivering carrier and a switching carrier. It is possible that a railroad company might move a car in transit at the direction of the initial carrier, in which it might be placed in the category of switching carrier, but that is not this case, if there is a difference in the liability between the switching carrier, line carrier, and the delivering carrier.

In the statement of facts it is disclosed that the car was consigned to Lockland, Ohio, and placed in the yards of the defendant company in Cincinnati, that the car was picked up by the defendant railroad company, placed in its train and shipped north over its tracks, through the country districts and through different localities, and that, on arriving at its destination, the car was placed on the private siding of the consignee. This is more than a switching proposition. The facts show it to be a short line haul by the delivering company, if it makes any difference in the application of the law relating to liability.

While this case was not based upon any federal liability, it may be of interest to note that in the Hepburn Act (Title 49, Section 1, U. S. Code), the word “transportation” is defined as relating to shipments, so as to include all services rendered in connection therewith. This case, as above stated, is not based upon violation of the federal'statutes. It is strictly an action for common-law negligence in the failure of a duty enjoined upon the railroad company by law. But the observation in the Hepburn Act, *supra,*is of some moment on the questions of what is transportation and what is switching, which might create a different liability. The conclusion on this question is *409that the defendant railroad company may not escape its liability and duty toward the plaintiff on the basis that it was merely a switching agent.

It is claimed and argued by defendant that it did not employ the plaintiff, that he was an employee of the Joslin-Schmidt Corporation, and that, if there was any question of requiring a safe place to work, that duty was on The Joslin-Schmidt Corporation. On this question, we call attention to the annotation in 41 A. L. R., 8, at 125:

> “The right of a servant of a consignee to recover for injuries sustained by reason of defects in a car which he was engaged in unloading has frequently been affirmed.

> “It has been held that the company is answerable for the condition of a car received by it from another company, and that, where such a car has been handled by the intermediate carrier as well as that which loaded the goods, and by that which delivered them, liability is imputable both to the initial and to the ultimate carrier, but not to the intermediate one.”

In this case, there was no intermediate carrier, so we hav^ liability on the part of the delivering carrier, The New York Central Railroad Company. The rule of law announced in the annotation is supported by a long line of cases in many of the states. There are some decisions, such as the case of *White*v. *N. Y., N. H. & H. Rd. Co.,*25 R. I., 19, which do not agree with this general statement of the law. The overwhelming weight of authority is that the right of action does lie against the delivering carrier by the third person, the servant of the consignee. The annotation in 41 A. L. R., *supra,*so declares.

From an examination of the cases in the notes it will be seen that the text declaration is sustained. That that is the rule in Ohio is emphasized from the statement in the text in 34 Ohio Jurisprudence, 782, Section 1088, where the rule is pronounced:

> *410“Persons rightfully engaged in loading and unloading goods into and from freight cars are regarded not as mere licensees, but as invitees towards whom the railroad company owes a duty of due care. The railroad company, rather than the employer of the person unloading cars, is liable for negligence in the operation of its road resulting in injury to such a person.”

The case of *Wheeling & Lake Erie Rd. Co.*v. *Rupp, 17*C. D., 212, 6 C. C. (N. S.), 273, is cited by counsel for plaintiff and is also referred to in the notes in 34 Ohio Jurisprudence, *supra,*as pronouncing the rule in Ohio. In the *Rupp case*it appears that Rupp was unloading a car at a factory, which car was left at the factory by the railroad company, the spur-track running to the factory was owned and controlled by the railroad company, but was on land belonging to the factory. The car stood on a grade and while being unloaded, started down the grade and was wrecked. Rupp attempted to save himself by jumping, but was injured. It was held in that case that the railroad company, rather than the company operating the factory, by whom Rupp was employed, was liable to Rupp for the injuries sustained. This case was affirmed by the Supreme Court in 73 Ohio St., 405, 78 N. E., 1141.

It seems that some question was raised in the *Rupp case*by the railroad company that Rupp was not engaged in unloading the car through any invitation or direction by it, and that there was no privity existing and no duty owing to Rupp. The case of *Burdick*v. *Cheadle,*26 Ohio St., 393, 20 Am. Rep., 767, was cited in the *Rupp case,*and was also cited in the casó under consideration. In fact there are few damage or personal injury cases growing out of the use or operation of property in which the *Cheadle case*is not cited for some purpose, and the many statements in the opinion in that case justify this. In the *Rupp case,*the court said: “'We do not see how the conclusion can be resisted that these men in the employ of the tinware *411company [consignee] went into this car to remove and did remove this freight, under the invitation and by the consent of the railway company that they should do so. They were not trespassers there — nothing of that kind; nor was the tinware company, as we conceive it, in any way tenants of that car; they went in there to perform their work, for the benefit, of course, of themselves, and for the benefit of the railway company, because, as a matter of course, the railway company wanted the freight discharged and the use of the car, and wanted their pay for the transportation.”

The *Gheadle case, supra,*quoted at length by counsel, was held not to be in point, as we hold here.

Thus viewing the case that the railroad company is answerable to this plaintiff, the sole remaining question of law is: "Were the circumstances constituting negligence on the part of the railroad company the proximate cause of the injury?

As above stated, the trial court submitted the one question to the jury, and we think properly so: “That the plaintiff could only recover if the defect in the car was a patent one, that is discoverable by reasonable inspection.” That the railroad company delivered a defective car is established. Its duty was to give reasonable inspection, and to deliver the car in a reasonably safe condition for unloading. This it did not do, as is disclosed by the facts in this case. What excuse then would relieve the railroad company from the consequences of the injury?

This brings us to a consideration of the inspection of the car. It is in the evidence that the railroad company did inspect the car in its yards in Cincinnati and again in its-yards at Sharonville, but this inspection was limited to the inspection under the federal law as to equipment, and it appears from the evidence that this was the only inspection made to ascertain whether the car was equipped properly. The witnesses for the defendant railroad company testified that they did not *412get under the car and inspect the floor, and that this was an inconvenience that a reasonable inspection did not demand. It is in the evidence and undisputed that there were many holes in the floor of the car, the floor boards of which were two and three-fourth inches thick. The fact that the plaintiff’s leg was forced through the hole shows conclusively that the floor boards were rotten or that the hole was already there. It is reasonable to infer that had an employee of the railroad company inspected the flooring of the car from the outside, he would have discovered these several holes, and possibly would have used some instrument to examine the floor boards for rottenness, and it is reasonable to suppose that such inspection would have shown the defect, and the railroad company could have refused to deliver the car, and it would have been within its rights to so do.

The court properly charged that the railroad company could not be charged if the defect was a latent one. But the defect was not a latent one. The defect would have been discovered had a reasonable inspection been made, and had an inspector gone under the car.

Under these facts, it was for the jury to determine whether reasonable care had been used to ascertain the defects. The jury unquestionably found the railroad company had not done so, and not doing so, it was guilty of negligence in delivering the car for the purpose of unloading.

It is suggested that the verdict is excessive, and was given under the influence of passion and prejudice. There is nothing in the record to indicate any passion and prejudice, unless it be in the amount of the verdict returned by the jury. When we consider the gravity of the injuries, and that at the time of the trial the plaintiff was still unable to work except under pain and suffering, and when we consider the necessity of operation, maiming and hospitalization, there is noth*413ing to indicate passion and prejudice in the amount of the verdict. If the verdict was excessive, that excess was cured by the court in requiring a remittitur, which was done.

Some criticism is made by counsel as to the charge of the court. An examination of that criticism shows the jury could not have been misled or the rights of the defendant prejudiced, and the matters criticized are not of sufficient import to warrant an extended discussion thereof in this opinion.

We find no prejudicial error in the record, and the judgment is affirmed.

*Judgment affirmed.*

Matthews and Ross, JJ., concur.