Settle v. Baldwin , 355 Mo. 336 ( 1946 )

ON MOTION FOR REHEARING. Defendants have urged on motion for rehearing that Railroad Company's sole and only duty under the tripartite contract was to move the cars used in icing service on Railroad Company's tracks and without charge. It is asserted the obligation to furnish cars was that of ART, an independent contractor, and the contract placed no duty on defendants to furnish or inspect the cars used in icing service; hence there is no [307] liability, defendants urge, inasmuch as there was no failure to perform a legal duty. And, defendants say, our opinion is in conflict with many decisions of this court holding that an owner who has ordinary work done by abona fide independent contractor is not liable for injuries resulting from the negligence of the contractor. The cases of Bass et ux. v. Kansas City Journal Post Co., 347 Mo. 681,148 S.W.2d 548; Skidmore v. Haggard et al., 341 Mo. 837,110 S.W.2d 726; Coul v. George B. Peck Dry Goods Company, 326 Mo. 870,32 S.W.2d 758, are cited.

It is true, as our opinion states, the tripartite contract provided the cars used in icing service should be furnished by ART. And it is true that in treating with defendants' contention that Railroad Company was a statutory employer of plaintiff under the Missouri Compensation Law, we have assumed that ART was an independent contractor and Ice Company a subcontractor. However, from the facts stated in the principal opinion, it is clear that Railroad Company and ART did not contract that the cars were to be moved and set for loading and for storage or unloading at Southwest Junction by the locomotives and on the tracks of ART. These movements were undertaken by Railroad Company. In these respects ART did not undertake to perform work or provide service under the tripartite contract as did the independent contractors in the three cases, supra, cited by defendants. While the language of the tripartite contract providing that ART was to "furnish" the car has been emphasized by defendants and urged as determinative that Railroad Company had no legal duty to exercise care in ascertaining that the car was reasonably safe for loading; yet, in our view, the provision of the contract that ART was to furnish the car is not decisive under the facts. The car was furnished in a legal sense, in our opinion, under the contract and the facts as recited in the principal opinion, by Railroad Company with a consequent duty to plaintiff to exercise due care to ascertain that the car was reasonably safe for loading, quite like the legal duty of a carrier to the employee of a shipper.

The motion for rehearing is overruled.