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June 20, 1975

PACIFIC INTERMOUNTAIN EXPRESS COMPANY, Defendant and Third-Party Plaintiff, v. GENERAL ELECTRIC COMPANY, Third-Party Defendant.


The opinion of the court was delivered by: OWEN


OWEN, District Judge.

 Plaintiff, Ebasco Services, Inc. (Ebasco) and third-party defendant, General Electric Co. (G.E.) each move for summary judgment against defendant, third-party plaintiff, Pacific Intermountain Express Co. (P.I.E.) pursuant to Rule 56 Fed. R. Civ. P. For reasons appearing below, plaintiff Ebasco's motion is granted but third-party defendant G.E.'s motion is denied.

 Plaintiff, assignee of the Florida Power & Light Co., brings this action to recover for damages sustained in transit to a condensate pump motor when the top part of the motor struck the underside of a New York State vehicular bridge while being transported by P.I.E. on one of its flat-bed trailer trucks in April of 1972. Defendant P.I.E. impleaded G.E. as third-party defendant, claiming that if it is found liable for damage to the motor it is entitled to indemnity from G.E. based on representations made by G.E.'s employees to the P.I.E.'s driver to the effect that the height of the shipment had been measured and was safe to be driven.

 Several legal rubrics have been asserted by the parties as governing liability in this case. They include the bill of lading, Interstate Commerce Commission Regulations, *fn1" the Federal Motor Carrier Act, *fn2" and New York Vehicle & Traffic Law § 385(2).

 Vehicle & Traffic Law § 385(2), set forth in the margin, *fn3" has been held to impose absolute liability upon the operator of an over-height vehicle for damages sustained by virtue of an excessively high load. Such liability runs to private plaintiffs as well as the State, Pelkey v. Kent, 28 A.D.2d 636, 280 N.Y.S.2d 517 (4th Dep't 1967), citing Tedla v. Ellman, 280 N.Y. 124, 130-131, 19 N.E.2d 987, 990-991 (1939), and it is undisputed that contributory negligence is not a defense. See N.Y. State Thruway Auth. v. Maislin Bros. Transport, Ltd., 35 A.D.2d 301, 315 N.Y.S.2d 954, 957 (4th Dep't 1970).

 I find this is a clear case for summary judgment. Ross v. Nelson, 74 Misc. 2d 309, 344 N.Y.S.2d 454 (Sup. Ct. Suff. Co. 1973). Indeed summary judgment has already been granted by a New York State Court to the State in parallel litigation for damage to its bridge on account of "the violation by the defendants of the noted [state] statute." State of New York v. Bernard Gage and Pacific Intermountain Express, Index No. 185/74 (Supreme Court, Albany County Special Term, October 11, 1974). Therefore, Ebasco's motion for summary judgment against defendant P.I.E. is granted.

 However, I deny third-party defendant G.E.'s motion for summary judgment against third-party plaintiff P.I.E. The State Court, supra, likewise refused to grant G.E. summary judgment; that Court found the movant's authorities "distinguishable or otherwise not controlling, and the facts alleged in the third-party complaint . . . give rise to a valid or recognizable cause of action. (See, Continental Can Co. v. Eazor Express, Inc., 354 F.2d 222; Dole v. Dow Chemical, 30 N.Y.2d 143 *fn4" , 331 N.Y.S.2d 382, 282 N.E.2d 288). I agree with the reasoning of the State Court but I consider it appropriate to state further grounds for my consideration. The I.C.C. regulations and the cases the movant cites do not support the proposition that the carrier is liable for the damage caused by the allegedly excessive height of the shipment as a matter of law. Indeed, no case finding liability under these regulations on the basis of excess height is cited. The rules and cases relate to loading that will properly distribute and secure the cargo. *fn5" In fact, General Electric Co. v. Moretz,6 upon which movants strongly rely, is further distinguishable, since it was established at trial that the carrier there accepted and transported a shipment despite actual notice that the freight was improperly loaded. G.E.'s alternate position is that even absent a non-delegable duty upon the carrier, under the bill of lading and the common law the liability is solely and squarely upon P.I.E.'s shoulders. Section 1 of defendant's bill of lading provides that:

"The carrier or party in possession of any of the property herein described shall be liable as at common law for any loss thereof or damage thereto, except as hereinafter provided [inter-alia] . . . the act or default of the shipper or owner. . . ."

 The common law rule was summarized in United States v. Savage Truck Lines, Inc.7 as follows:

"When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper. This rule is not only followed in cases arising under the federal statutes by decisions of the federal courts but also for the most part by the decisions of the state courts." *fn8"

 It is clear that an unobservable defect is a latent defect while a readily apparent defect is a patent defect. Here, we have an "observable" defect in the sense that the total height is apparent to the naked eye yet it is not necessarily a patent defect since the excess may not be readily apparent. What is patent may also depend in some measure upon the experience of the observer. On the one hand, an experienced flat-bed truck driver might notice a height surplus, but, on the other hand, a surplus of possibly one foot over the 13-1/2 foot limit (approximately 7%) might well be beyond a less-experienced driver's ability to recognize. The question of whether the defect here was patent is therefore not one for resolution by summary judgment. G.E.'s argument, that it is easy for P.I.E. to measure the height of the load before accepting it is beside the point, and in any event, the affidavits of P.I.E. employees claiming that G.E. employees represented the load to be of proper height raise further material issues of fact bearing on the ultimate issue of allocation of liability between G.E. and P.I.E.

 For the above reasons, G.E.'s motion for summary judgment against ...

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