42 So. 421 | La. | 1906
Statement of the Case.
Plaintiff sues for damages for personal injury received through the alleged negligence of defendants whilst discharging a duty assigned to him as their employé. Defendants deny the negligence imputed to them, and aver that the injury complained of is the result of plaintiff’s own want of care with respect to a danger which was, or should have been, known to him. The case presented by the testimony in the record is as follows, to wit: Defendants are contractors, engaged in building the jetties at Southwest Pass (of the Mississippi river), and when the accident out of which the suit arises occurred were receiving large quantities of stone on the bank of the river, above New Orleans, and conveying it thence, in barges, to the scene of their operations. The stone was brought from the quarry in uncovered cars, the beds of which (like wagon beds) consist of the bottoms (or surfaces) of the cars, around the edges of which are erected sides and ends about four feet high, supported by stanchions. In order to facilitate unloading, these sides are so divided that the spaces between the stanchions are practically gates, which, being hinged at the tops, may be made to swing out from the bottoms, and, when closed, are secured by means of clutches, fastened upon iron rods, an inch and a quarter in diameter, which, in turn, are braced along, and a few inches off from, the sides of the cars. The railroad company delivered these cars on its track at a point near the river bank, from which de
The plaintiff, a Swede, 25 years of age, was employed by defendants as a laborer, and had been working for them for 12 days when he received the injury of which he complains. On the morning of May 19, 1905, a car loaded with stone was pulled down the spur to the engine, but for some reason was not given sufficient momentum to carry it to the edge of the wharf, and had to be pulled back and started over again, and it appears that the foreman spoke rather sharply to, or of, the engineer, giving it to be understood that he must do better or quit, so that, when the final attempt was made, at which time the foreman ordered plaintiff to get on the car and let go the hook, it seems probable that more power was applied .than usual, and that the engineer was slower in releasing the driim and slacking the rope, the result being
“Q. It was easy enough to see what has to be-clone in lifting the hook off, under ordinary circumstances? A. Yes, sir; it was easy'enough to see. Q. Did it require any particular skill?' A. No; I couldn’t see no danger about that— getting the book off — when I got there. But, then, I didn’t know it was so dangerous with, this hook we have at the present time when my foot was hurt.”
From other testimony given by him it appears that he was under the impression that the hook in use at the time of the accident was not the same one that had previously been used, and that, by reason of the application of unusual power, it had been jammed into the stanchion. The evidence does not, however, sustain that theory, and our conclusion is that, whilst the hook may have-been jammed in some way, it was not by being forced into the wood of the stanchion, and that it is not unlikely that the difficulty in disengaging it from the rod arose from the failure of the engineer to release the drum at the usual time and thus relieve the tension of the rope. Willie Simmons, a witness for defendant, who had been performing the same duty, testifies as follows: ¡
“Q. What was there to do except lift the-hook and throw it off? A. That’s all. If it was hemmed, sometimes you failed to lift it off.”
Precisely what he means by “hemmed” is-not explained. G. B. Christie, one of the-defendants, gives the following testimony concerning the possibility of the hook becoming jammed on the rod, etc.:
“Q. You say there is very little possibility of its being jammed on that rod? A. Not under proper use — no, sir; 1 should say none. Q. What do you mean by ‘improper use,’ then?' A. I make this distinction; That, when that hook is released there, the rope should not be under tension. You couldn’t make a hook that would release under tension.”
Plaintiff gives testimony to the effect that he had worked for about 15 months for a
“Q. When you, or the other man who lifted that hook,-had lifted it, did you'l-emain standing on the shafting usually, or did you get on top the car, or step around to the rear of the car? A. After you iunhook the hook you have to step behind the car — when you get the hook off. Q. You knew that was the habit? A. Yes, sir; I knew that was the habit. Q. Why didn’t you step behind the car? A. I was trying to unhook it — because it came to my mind, if I 'don’t it will tear the engine to pieces.”
There is some testimony (to which counsel for defendant objected) showing that, after the accident to plaintiff, a rope was attached to the hook by means of which the latter was lifted from the rod by a man who was safely placed on the -top of the stone constituting the load of the car. There was judgment in the court a qua in favor of defendant, and plaintiff has appealed.
Opinion.
Assuming, as the evidence authorizes, that the ordinary speed of the cars whilst being pulled towards the wharf was five miles an hour, and that the tension on the pulling rope was ordinarily released (so that the hook by which the rope was attached to the car could be disengaged) when the car was 20 feet distant from the engine, and we find that the man whose duty it was to disengage the hook was allowed a little less than three seconds within which to arise from the stooping position necessary to do so, and to get out of the way, in order to escape the danger of being brought into collision with the engine, some part of which, or off the appliances connected therewith, was within SO inches of the track, and, of course, nearer still to the side of the car to which he must have clung. Upon the occasion of the accident, the car was moving faster than usual, and the distance from the engine, when the drum was released, was in all probability less than usual, so that the time allowed plaintiff to take in the peril of his position, as resulting from the failure of his attempts to disengage the hook, was less than two seconds ; and this situation was brought about, on the one hand, by the vicious arrangement which made it not only possible, but probable, and, on the other, by the negligence of the engineer in failing to-release the drum while the car was at a greater, rather than a less, distance from the-engine. And we do not find that it was a situation the peril of which we can hold that the plaintiff assumed as part of the ordinary, or the obvious, risk of his employment. He was, and is, a common laborer, whose main occupation in defendants’ employ had been to unload masses of stone from cars into wooden boxes placed alongside the cars for its reception. On one or two occasions, in obedience to the orders of his superiors, he had undertaken and discharged the function of unhooking the moving ears, but he had never been told that one of the elements of danger incident to that function was that he might be trapped and injured as upon the morning of the accident, and nothing in his testimony leads us to believe that he had ever considered that aspect of the situation. The engineer had made an unsuccessful attempt to send the particular car in question to' the edge of the wharf, during which it appears that there was no one on it to disengage the hook. The foreman became impatient and spoke sharply of (if not to) the
It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of the plaintiff, Alex. Johnson, and against the defendants, George B. Christie, Jesse Lowe, and George A. Ledderly, composing the ordin¿ry partnership of Christie & Lowe, jointly, and against the partnership in the sum of $2,500, with legal interest thereon from the date of this judgment. It is further adjudged and decreed that said defendants be condemned in solido for all the costs of the suit.