59 So. 1010 | La. | 1912
Walter Doiron, aged not quite 16, lost his right hand and part of his arm while at work for the defendant. His complaint in that connection is that he was taken from the work he was employed to do as “sweeper” and “cleaner” of the shingle mill, and put to work at the “swing saw” in one of the apartments of the lumber plant, known as the “head mill,” and while thus at work met with the accident.
The “swing saw” at which he was working is made to swing back after its use in sawing each piece; that is, after sawing through the piece, it swings back some 10 or 12 inches, carried back by the weight -attached to it. The rope by which the weight was attached, plaintiff alleged, broke, thereby released the saw from its hold of the weight, and, when swinging forward, it struck plaintiff’s arm, and lacerated it so that amputation was the only alternative. He states that he did not have the required experience or skill for the work, and had never received the least instruction how to operate the saw and avoid danger. He charged that defendant was grossly and wantonly negligent in compelling him to work at the saw or forfeit his employment, and that he had a right to safe appliances, which were not furnished him.
There are two questions — whether plaintiff was ordered to operate the swing saw; next, whether the rope by which the weight was fastened to the saw broke, owing to the negr ligence of the defendant.
We will at this time take up the motion for a new trial. The averments of defendant in this connection were that one of its employ és, Gauthreaux, worked near plaintiff on the day of the accident, and that by him it would prove that the, rope connecting the weight and the saw did not break; that a witness, Numa Boudreaux, another employé, who testified favorably to plaintiff, did not go to the saw, as he swore he did, the morning following the accident; that no one went to the swing saw on the day following, as sworn to by Boudreaux, until Messrs. Shaw, Edmondson, and Broussard, officers and employé, examined it on the day following; that Gauthreaux was not placed on the stand before because defendant inferred that he was unfavorable to its cause.
Counsel for defendant added his oath to the application for a new trial, setting forth that the witness Gauthreaux, when questioned by him out of court before trial, avoided giving him particulars of the ease of which he had knowledge, and that Gauthreaux by this led affiant to believe that he was not favorable to the defense. The district court overruled the motion for a new trial.
As relates to the new trial prayed for by defendant:
“Fear of unfavorable testimony is not good ground not to examine a. witness.”
In addition, it is singular that, although there was another workman near plaintiff (Joe Le Blanc), he was never examined, and no concern seems to have been shown on account of his absence. True, he had become a resident of another parish. His testimony might have been obtained.
As relates to continuance, we will not reverse the ruling refusing to postpone the case to another day. The absent witness Mr. Shaw who had been summoned as defendant’s witness, should have been present and called upon during the trial. He was one of the stockholders of the defendant company and its superintendent; and it devolved upon him to be present to refute the averment of negligence on the part of the company. The court properly refused to postpone the case on account of his absence.
On the Merits.
Plaintiff acted in accordance with natural impulses, seeking to serve his employer, i He had been told to go to the “head mill.” That order, when given to others, was understood that operating the saw by the one receiving it was meant. It was the only work to be done at the mill head. Plaintiff understood the order as others had.
There was another man at work near plaintiff, one Frank, before named, who took up the pieces that would be used in the conveyor and put them aside to be passed through the swing saw operated by plaintiff. Plaintiff at the saw would pile up the pieces sawed, and throw the trash in the conveyor. There was no great distance between the shingle mill, where the foreman was at the time he gave the order, and the “head mill,” as both were under the same roof, and the swing saw could be heard at some distance while running.
We have referred to the weight attached to this saw, and we have stated how the accident happened, and that plaintiff was standing before the saw when it struck him. There is some confusion in the explanation given of the movements of the saw and the motive of plaintiff’s son at the time the saw struck him. He evidently had his right arm extended from his body when the saw struck the inside of the arm, instead of the outside, as he had to reach to the right and to the left in performing his work. If the saw swung forward, as alleged, it was not extraordinary that it struck his arm as it did while it was extended out from his body. The theory of defendant that he was attempting to pass his arm in the rear of and around the saw to reach one of the pieces of timber is, to say the least, persuasive. From all indications the accident would not have happened if the rope had not broken.
After the accident, nothing was done to find out how it was that it happened, as no one repaired to the saw. Another workman was sent to operate the saw, and he found a broken rope, which he repaired before beginning the work. The day after the acei
It is therefore ordered, adjudged, and decreed that the judgment of the district court is amended by increasing the amount to $6,000, with 5 per cent, interest on $5,000 from the date'mentioned in the amended decree. The defendant is also condemned to pay the costs of appeal.