Indemnity Ins. Co. of North America v. Atchison, T. & S. F. Ry. Co.

Appellant, plaintiff below, appeals from a judgment based upon a verdict instructed for defendant railway company. Appellant, under a bond given by it to one M. H. Slocum, became subrogated to and assignee of Slocum’s claim for damage to steel girders, I beams, and other steel transported by the railway company and alleged to have been damaged by the railway company’s negligent operation of its locomotive crane in dropping one of the girders on a pile of other girders on the ground, while unloading them from the railway’s flat cars.

The railway company’s answer denies that it was operating the crane in question, and alleges that Slocum hired the crane and employed the crane operator. It further alleges that the unloading occurred in the delivery of the girders as a part of an interstate carriage to the place of delivery, and since, as an interstate carrier, it was prohibited from unloading the girders by a regulation, Rule 27, § 1, of the official classification of the Interstate Commerce Commission, the unloading must be regarded as performed by the consignee.

The question whether or not the evidence was such as to warrant an instructed verdict for the defendant railway company…

(dissenting).

I dissent.' Section 1, rule 27, of the Interstate Commerce Commission, referred to in the main opinion, is as follows: “Owners are required to load into or on cars freight for forwarding by rail carriers, and to un *443 load from cars freight received by rail carriers at carload' ratings.”

Under this rule the bill of lading required the owner to unload the steel girders. The contract between the railway company and the owner entered into during the progress of the interstate carriage must be read in the light of the obligation thereby imposed upon the owner to unload the cars. The interstate contract of carriage was not completed until the cars were unloaded. In my opinion, the short haul to the point where the 1 beams were unloaded did not constitute a new intrastate commerce transportation entirely distinct from the original contract of carriage such that the interstate commerce rule no longer applied. This additional haulage was evidently contemplated by the parties in connection with the interstate carriage, and the unloading was considered by them as that required to be performed by the owner at the conclusion pi the interstate shipment.

The contract with…