7 La. App. 414 | La. Ct. App. | 1928
Lead Opinion
The defendant company operates a sugar factory near the town of Franklin, La. It cultivates sugar cane in the Parish of Iberia on the Peeble’s Plantation, as a feeder for its factory. The cane is hauled from the plantation to a derrick by drivers or teamsters, from where it is transported by railway to the factory.
Aymar Dartez was employed as a teamster by the company to haul cane to the derrick. He was killed near this derrick on December 15th, 1925. His parents brought this suit against defendant company, as dependents, to recover compensation under the Employers’ Liability Act.
The first duty of the deceased, as the driver of a wagon or as a .teamster, was to haul the cane to the derrick. After he got there he had to hook the cane in a rope or sling to have it hoisted into a car for transportation. As soon as the cane was unloaded he had to return to the field for another load. Such was the ordinary work which was required of him under his contract of employment. It is shown . that when there was an unusual number of wagons at the derrick, and cane had fallen from the wagons, the teamsters were called to help in clearing the way for the passage of the wagons, and sometimes to assist Rogers, a one-armed man, to pull the rope to lift this cane into the cars. Greig, witness for plaintiff, says that the teamsters, at times, helped to pull the cables. Peter Meyers, another of plaintiff’s witnesses, says he did all sorts of work around the derrick, except to operate the steam derrick. The witnesses for defendant say that these teamsters were never called upon to assist in the manner testified to by the witnesses above referred to. We believe, however, that the evidence justifies the conclusion that the drivers of the wagons were not restricted to the hauling of the cane to the derrick, and to hook them for hoisting into the railway cars. Their functions had been extended to other duties, at various times, as above indicated. It frequently happened that the teamsters would, of their own will or voluntarily, proffer their services around the derrick as exigencies might arise, and without regard to the character of the work performed, and it is not in the evidence that the services so proffered were ever refused. The running of the derrick in the manner stated had been going on for quite a while before the accident, and had, no doubt, received the approval of those in charge of its operations. The record shows that the derrick was operated by the engineer, a one-armed man, as hoister, and two negro boys, one aged about sixteen and the other about twelve, which probably accounts for' the necessity that arose at various times for the assistance of these teamsters. The evidence shows that Rutson Boutte was the engineer who was operating this steam derrick. It is shown that Aymar Dartez, the deceased, was in the act of assisting him in rolling a rope on the drum when his arm was caught in the cable by which he was dashed against the boiler and killed. This was caused by the act of the twelve-year-old negro boy, who, of his own volition and unexpectedly, started the engine. Boutte, the engineer, says he had not called on the deceased to help - him put the cable around the drum. The record sup
In performing these services, and when killed, deceased was subjected to risks to which he was exposed by the nature of his employment. In the case of Dyer vs. Rapides Lumber Company, 154 La. 1094, 98 So. 677, deceased was killed at night in the woods in an isolated spot by unknown p'arties while he was making a fire in an engine of defendant company. The court found that the accident arose out of and in the course of his employment within the Workmen’s Compensation Statute. The court said that he had been exposed to those risks by the nature of his employment, and held the defendant company liable, remarking, in coming to that conclusion, that the statute was intended to provide insurance for the employee against such risks. “Hence,” says the court, “the statute expressly provides that the employer shall be liable even when the injury occurs through the tort of a third person. Section 7.” This doctrine was approved in Yellow Cab Co. of New Orleans vs. Jones, 156 La. 841, 101 So. 216, where the court said, for a stronger reason, the employee should obtain relief when the injury results from the tórt of a fellow employee, as the statute is essentially intended to provide insurance against all risks to which the “employee may be exposed by his employment”.
The negro boy who started the engine that caused the accident was a “water boy” for the defendant company, and a fellow employee of deceased. It was through his tortious or negligent act that Dartez lost his life. We find that the killing of the deceased was the result of an accident, “arising out of and in the course of' his employment” within the Employers’ Liability Act.
Defendant company contends that it is engaged in. the Parish of Iberia in agricultural pursuits; that the derrick was merely used to transport the cane from the plantation to its sugar factory near Franklin. Therefore, that the defendant cannot be construed as engaged in a hazardous business simply by reason of ihe fact that it was necessary to operate a steam derrick for the transportation of the cane. In the reports of the Court of Appeal, Yol. 4, p. 43, Mackey vs. Fullerton Naval Stores Company, we had occasion to pass on a
“Therefore, the furnishing of same and the placing of same upon the location for the well was to all intents and purposes the initiation, the beginning and a part of the construction and erection and in putting in operation of an oil well, within the •meaning of the statute.” Likewise here, the hauling of the cane to the derrick for transportation was the initiation or beginning of the system which had been adopted by defendant for the operation of its factory where the finished product was put out through its manufacturing process. The business in which defendant company was engaged was “hazardous” and it cannot escape liability on the plea thus tendered.
Judgment was properly rendered in favor of plaintiff.
Concurrence Opinion
CONCURRING OPINION OF
Under the evidence, it was the duty of Aymar Dartez, as driver of a cart, upon arriving at the hoist with his loaded cart, to attach hooks to the load of cane, whereby the load was hoisted into the car.
The power lines leading to the drum, whereby the hoist was lifted, had become twisted and entangled, and as a result the hoist had stopped, and could not be operated to unload the carts.
It was while helping to untangle the twisted line so that the hoist could operate and unload the carts, that the plaintiff’s son was killed.
I submit these as additional reasons why Aymar Dartez was helping in the work in which he was engaged.
