63 So. 306 | La. | 1913
Mrs. Annie Jacob, widow of Frederick Jacob, individually and as tutrix of their minor children, sues the defendants in solido in the sum of $50,000 for damages resulting to them from the loss and death of their late husband and father. There was judgment dismissing plaintiff’s demand, and she has appealed.
The deceased, Frederick Jacob, a day laborer, was in the employ of a firm of stevedores, Ross & Heyn, doing business in the city of New Orleans, at the time of his accidental death. They were engaged in unloading very long pieces of timber which extended over two flat cars belonging to the Cincinnati, New Orleans & Texas & Pacific Railway Company. This company is not before the court. An exception filed by it to the jurisdiction of the court was sustained, and no appeal has been taken from that judgment.
The pieces of timber, some 16 in number, were loaded on the cars by the Kentwood & Eastern Railroad Company. And that company has not been made a party to the suit, and hence it is not before the court.
The cars were brought from Kentwood, La., to New Orleans by the Illinois Central Railroad Company; but the suit is not pressed against that company. There is no evidence for or against it; and no argument has been made concerning its liability. Plaintiff abandons her claim against it on her brief filed in this court.
When the cars arrived in New Orleans they were transferred by the' Illinois Central Railroad Company to the Public Belt Railroad, belonging to and operated by the city of New Orleans. The cars were standing upon the tracks of the Public Belt at the time of the accident resulting in the death of Mr. Jacob; and the stevedores, Ross & Heyn, were engaged in transferring the timbers from the ears to a vessel lying near the Public Belt tracks. The city of New Orleans and Ross & Heyn are the only defendants now before the court.
This load of timber was held in place by wooden stanchions. The stanchions had been wired together at the top. These wires had been cut by the workmen, and the stanchions on the sides of the cars nearer the river had been removed. Some two or three pieces of timber had been unloaded, when three or four pieces fell from the opposite side of the car, bearing down the stanchions that held the load in place, and breaking or tearing out the piece of three or four feet in length of the sill of the car before mentioned. The breaking of the sill was the cause of the accident which resulted in the death of Mr. Jacob.
The break in the sill makes it quite evident that the sill was defective at that point. And this is further shown -by the testimony found in the record.
It is argued on behalf of plaintiff that it was the duty of the city of New Orleans, through its Belt Railroad Commission, to have inspected the cars in question and to have discovered the faulty condition of the sill of one of them, and that it was at fault in not having made such proper inspection and in not haying rejected the car when delivered to the Belt Road by the Illinois Central Railroad Company. And she also ■ argues, as to Ross & Heyn, that they were at fault in not making a proper inspection of the car and in discovering the faulty sill, and also in not having provided a safe place for their servant, her husband, to work in.
It is the duty of the owners of cars to examine them carefully with the view of seeing that they are safe in all their parts. It is also the duty of a railroad company which receives cars from another company to inspect the same with the, view of ascertaining their condition. And it is equally true that employers must provide their servants with safe places to work in, and with proper appliances to work with.
The inspector for the Public Belt had been engaged in inspecting cars for six or seven years at the time of the accident, and he had been a repairer of cars before that time. He is now employed by the Illinois Central Railroad Company as a car inspector. And, as the judge of the trial court, who saw and heard this witness, accepted his testimony, we shall accept it also as that of a competent and reliable witness. The Public' Belt will not be held to be at fault in employing this witness as an inspector of cars. He testified that he had examined this car when it was received from the Illinois Central Railroad Company, and that it was in good condition, and that the load thereon was in good shape and in good order. He testified that he went underneath the car for the purpose of inspecting it, and that his examination was complete. He was not asked about the particular defect which afterwards developed in this car. But it would appear from the evidence, both oral and by photograph, that -the defect in the sill was not apparent; and it is not shown how the same might have been discovered by the inspector. One of the witnesses for plaintiff, a day laborer, testified that the broken sill looked as if it were affected
“The outside piece of timber seemed to be sappy (in other words, decayed); the inside part (the heart) appeared to be good. Q. The heart of it appeared to be good and hard? A. Yes, sir. Q. But the outside appeared to be sappy? A. Yes, sir. Q. What was the depth of that sap on the outside? A. To the best of my knowledge about two inches in depth. Q. About what length? A. Well, I judge about three or four feet. Q. By an indication of sap do you mean damp? A. No, sir; I mean by that that the wood was decaying.”
[3] “It seems to be a rule very generally followed by the reported cases that, where the carrier selects a car and furnishes it to a shipper for his use, the carrier will be liable for any personal injuries resulting to any one whose connection with the shipment causes him to be on the car, which injuries are caused by the defective condition of the car, where such a condition could have been discovered by a reasonable inspection.” 9 L. R. A. (N. S.) 857.
The photographs offered in evidence indicate that the ear, as is usual, was painted, with the letters of the company owning it appearing thereon; and we hold, with the district judge, that the existing dry rot in that particular sill was a latent defect, not discoverable by a reasonable inspection of a car in actual transit, for which the law does not hold the defendants, the Belt Railroad Company or the city of New Orleans, responsible.
There is some evidence in the record as to the unevenness of the tracks of the Belt Road; but the positive evidence is that the track is curved at the place of the accident, and that the outer rail is less than two inches higher than the inside rail, and that this relative position of rails is adopted by all railroad companies for safety in moving trains over curves.
We find no fault which is imputable to the Public Belt or the city of New Orleans in the management of its road.
Ross & Heyn, defendants, the stevedores who were engaged in unloading the ear which caused the accident, are sought to be held on two grounds: (1) That they did not cause a proper inspection of the car to be made; and (2) that they, as masters, did not provide a safe place for their workmen to work in.
We are clearly of the opinion that the inspection contended for by plaintiff must be made by the owner of the cars or by the initial carrier of the freight and not by the consignee or the stevedore who is engaged to unload said car. That such stevedore shall make a careful inspection is true; but he cannot be held responsible for latent defects in the construction of the car or for those which are not discoverable by the ordinary careful observer who is engaged, in the occupation of removing freight from said cars. And it was competent for defendant to offer evidence going to show that the custom among stevedores in this port was to make a general inspection and not the minute and thorough inspection required of the owner and loader of a car.
As to the place at which Ross & Heyn put the deceased and his fellow workmen to work, we hold that they did everything that prudent, cautious, and careful employers could have done for the security of their workmen. They had no reason to suspect any defect in the sill of the car. Their foreman had inspected same. The car had traveled many miles with its heavy load upon it; it had been inspected by two, or perhaps three, railroad companies and had been passed upon as being safe and in good condition. 'They saw the ears which were apparently in good order and condition, and they tacitly accepted the previous findings of the several railroad companies.
“An act or omission may be so clearly negligent, or so clearly free from negligence, that the customary use of the same degree of care by others in like circumstances becomes immaterial. •
“But, where the character of the act or omission is doubtful, the true test of actionable negligence is the degree of care which persons of ordinary intelligence and prudence, engaged in the same kind of business, commonly exercise in like circumstances. If the care exercised in such a case arises to or above that standard, there is no actionable negligence. If it falls below that standard, there is.
“In cases of this character, where the question of negligence is at issue, evidence of the ordinary practice and of the uniform custom, if any, of other persons of ordinary intelligence and prudence, engaged in the same kind of business under similar circumstances in the performance of acts like those which are alleged to have been done negligently, is competent, and it is error to reject or disregard it because such evidence presents to the jury the correct standard for the determination of the issue.” Canadian Northern Ry. Co. v. Senske, 201 Fed. 637,120 C. C. A. 65.
Plaintiff has not. shown actual negligence on the part of defendants or a condition which was obviously dangerous, while defendants have shown that they used due care.
There was no outward suggestion that the construction of the ear was defective. It has been shown that Ross & Heyn employed a competent foreman; that this foreman made a proper inspection; and that the hidden defect that developed was such' a defect that could only be discovered by a railroad ear inspector possessing the expert knowledge that Ross & 1-Ieyn and their foreman neither had nor were expected to have.
We hold, with our learned brother of the district court, that the accident resulting in the death of plaintiff’s husband was inevi
Judgment affirmed.