107 La. 725 | La. | 1901
Statement of the Case.
The opinion of the court was delivered by
This is an action in damages for personal injuries. There was a verdict and judgment for plaintiff in the sum of $10,000, from which the defendant has appealed.
The plaintiff alleges, in substance, that he was employed as a brakeman on a short railway operated by die defendant for the purposes of its saw mill; that he was on a train which was under full headway, when, without warning of any kind, the engine was reversed and the speed of the train cheeked so suddenly as to throw him on the track, with the result that the wheels of the car passed over one of his legs, crushing it in such a manner as to necessitate amputation. Then fol
The defendant filed an exception of “no cause of action,” which, by order of the court, was referred to the merits. And, thereafter, “first reserving all rights under said exception,” the defendant answered, denying generally the allegations of the petition; specially denying that plaintiff’s injuries resulted from its fault; and averring that plaintiff was an experienced railroad man and assumed the risks incident to the service in which he was employed, including those resulting from any negligence of his fellow servant, the engineer. It does not appear that the defendant insisted that his exception of “no cause of action” should be ruled on, separately, and, upon the trial on the merits, evidence was offered on behalf of the plaintiff, to which no objection was interposed, showing the incompetency of the engineer. Counsel for defendant, however, requested the judge to charge that the simple allegation that the injury was caused by the negligence, or ineompetency, of a co-employe, or fellow servant, is not sufficient and does not state a cause of action, unless it is further alleged that such negligence, or incompetency, was known to the employer.”
The charge as given in response to this request was as follows: “Gentlemen of the jury, I have been requested to state to you” (repeating the charge asked). “I will state to you that, in the opinion of the court under the general allegation that the damage was caused by the employe that is sufficient notice to the defendant that it is contended that he knew of the ineompetency of the employe who is charged to have been the cause of the damage. If they should, by omission, fail to make the allegations in the petition as strong as they should be, and if there is proof introduced which covers that defect, and that proof is introduced without objection, that it is omitted, in that case the portion of the evidence being received without objection completely cures the defects in that regard.” To this, the defendant, through its counsel, reserved a bill of exceptions.
The plaintiff was about twenty-six years of age, and had been working as a brakeman, and otherwise, on railroads, for fifteen years, or more, before he entered the service of the defendant. The defendant, being engaged in the lumber business, operates a railroad extending from “Yellow Pine,” in Webster parish, some seventeen miles into the woods from which it obtains its logs. On the morning of July 7, 1900, a train, consisting of eight or ten skeleton cars, used for the transportation of logs, a coal car and an engine, with tender, was started from Yellow Pine, with McClurken as engineer, and Doogan as fireman, on the engine, and the plaintiff as brakeman, whilst Matthews, the superintendent of the road, and two other men, Buckner and Moody, were riding on the tender. The train moved out in inverse order, that is to say, the log cars were ahead, the coal car was behind them, then the tender, and, lastly, the engine, backing and pushing the other ears. In this situation, plaintiff’s position, when not otherwise employed, was on the foremost log car. A log car, it may be stated; consists of two trucks, of four wheels each, connected together by two timbers, about six by eight inches square, running lore and aft on top of them, and projecting out in front and rear, between the ends of which, as we understand it, are the “drawheads.” Across the trucks, and extending out upon either side of the track, are large; squared timbers, called “bunkers,” which serve to support the logs, and, from the end of one bunker to that of the other, upon each side of this skeleton car, is a pole, from about the middle of which is fastened a chain, called a “toggle.” These chains, when passed over the logs with which the car is loaded, and connected together, serve to hold the load of logs in place. When the train in question had proJ gressed about two miles, Matthews observed that one of the toggles was dragging on the ground, and there was a halt, and the plaintiff was signalled to secure it in position. In order to do this he dismounted from his place upon the forward car and went back to the car to which the toggle was attached, and, after he had fastened it properly, got on the train again at that point, signalling, either just before, or just after, getting on, or, perhaps, before and after, for the train to move on, and, as the train acquired headway, he proceeded forward to his position, and was in the act of taking his seat upon the forward “bunker,” of the forward car, when, as he claims, the engineer, without warning of any kind,
The evidence shows that MeClurken had been employed by the defendant, for several months before the accident, as a steam and water fitter and machinist, but, up to the day of the accident, had never been placed in charge of a locomotive. It further shows that, whilst he claimed to have been a locomotive engineer, and, at one time, a member of that brotherhood, and to have been so employed seven years before, he brought to the defendant no certificate to that effect, or clearance card, and that none were demanded of him, though such credentials are usually demanded by railroad companies employing engineers; and, it does not show that any inquiry was made as to his competency to discharge the duty to which he was assigned. That he was incompetent, is abundantly shown. He did not know how to use the injector upon.Cue engine, and admits that he was obliged to call upon the fireman to instruct him in that respect, and the fireman was called upon to take the engine, with the injured plaintiff on board, back to Yellow Pine immediately after the accident. Later in the day, the engineer was given a further trial, and the fireman was obliged to intervene to keep the engine from running away, and, from that day forth, the engineer was never again placed in charge of an engine, by the defendant, and remained in its service but a few months longer. ■ It is proper, also, to say in this connection that it does not appear that any witness in the
Opinion.
In order to entitle the plaintiff, in a case of this character, to recover, it is as necessary for him !to allege, and prove, that the injury of which he complains was caused by the fault of the person upon whom he seeks to impose the liability as for him to allege, and prove, the injury itself. In this particular ease the allegation of injury is specific enough, and the cause of the injury is alleged to have been the incompeteney of the engineer and the improper handling of the locomotive resulting from that incompeteney. As to the engineer, therefore, the allegation of fault, as the cause of the injury, is as specific as the allegation of injury. But, the engineer is not the defendant in the case, and it is only upon the assumption that his incompeteney and negligence are to be considered the incompeteney and negligence of the defendant, his employer, that we can find any fault imputed to the defendant. Whilst, however, the doctrine of the non-liability of the master for injuries sustained by a servant in his employ, through the incompeteney or negligence of another servant employed by him, has not been recognized in this state as including certain classes of cases to which it has been applied by the English, and by, some, American, courts, the case stated in the petition; i. e., the ordinary ease of a brakeman injured through the fault of an engineer, when both are engaged in the handling of the same train, in the service of the same employer, is one to which, under our jurisprudence, as well as the jurisprudence elsewhere, that doctrine is properly applicable. Hubgh vs. N. O. & C. R. R. Co., 6 Ann. 495; Satterly vs. Morgan, 35 Ann. 1166; Town vs. R. R. Co., 37 Ann. 630; Wallis vs. R. R. & S. S. Co., 38 Ann. 160; Dandie vs. R. R. Co., 42 Ann. 689. Stating the doctrine thus referred to more specifically, for the
The general proposition, supported by the weight of authority, is thus stated: “In an action to recover for personal injuries to an employe, caused by the negligence or incompetence of a fellow'servant, the complaint must allege negligence on the part of the master in employing such fellow servant, or in retaining him after his negligence or iii-competency become known. A declaration merely alleging an injury sustained through the negligence of a fellow servant does not state a cause of action.” Enc. PL & Pr., Vol. 13, pp. 899-900. “The general principle that the master is not liable for injury occasioned to a servant by the negligence of a fellow servant, in the absence of proof of fault or negligence in the employment or retention of the latter, may now be considered as firmly settled in.Louisiana.” Wallis vs. R. R. & S. S. Co., 38 Ann. 160. “Plaintiff cannot prove what he has not alleged.” DeBuys vs. Farmer, 22 Ann. 479. “The principle that the gravamen is negligence, that is, the employment of an unfit servant, with knowledge, actual or constructive, of his unfitness * * * involves the corollary that a. complaint is demurrable which merely alleges that it was the master’s duty to employ careful and skillful servants, and that he failed to select those that were competent. A want of care and diligence should also be charged.” Moss vs. Pacific R. R. Co., 49 Mo. 167. (Cited in notes to Smith vs. R. R. Co., 151 Mo. 397; 48 L. R. A. 398.)
“A. party who, without opposition, suffers evidence to be adduced, contrary to, or beyond, the allegations contained in the pleadings, is bound by its effect, so that, after the admission of the evidence, it matters not if the judge should strike out that portion of the pleadings.” Hennen vs. Gilman, 20 Ann. 241; Powell vs. Aiken & Gwynne et als., 18 La. 328; England vs. Grison, 15 Ann. 304; New Orleans vs. Congregation, etc., 15 Ann. 389; Barbet vs. Roth, 16 Ann. 273; Godden vs. Executors, 35 Ann. 164; McCloughery vs. Finney, 37 Ann. 27. “If (illegal evidence be admitted and a- bill of exceptions taken thereto be not brought to the notice of the court the evidence will be considered.” Draper vs. Richards, 20 Ann. 306.
We consider it unnecessary to add anything to what has been said in the preceding statement concerning the incompetency of the engineer, except to say that, whilst the defendant, through its counsel, insists that he was competent and that he was guilty of no fault in the matter
The evidence shows that Bell was earning from $1.75 to $2.20 a day at the time of the accident; that his leg was crushed, practically, off,.
Eehearing refused.