Keller v. Louisiana Western R.

63 So. 757 | La. | 1913

LAND, J.

Plaintiffs sue for $22,063, damages for the death of their son, Octave Keller, an employe of the defendant, who, while working on a railroad bridge, fell into the water and was drowned.

The jury rendered a verdict in favor of the plaintiffs for $2,000, and the defendant has appealed from the judgment pursuant to the verdict.

[1] The theory of plaintiffs’ case, as propounded in their petition, is that Octave Keller was ordered by the bridge foreman to go upon a certain scaffold, which projected over the waters of a deep bayou, to do certain repair work on the bridge; that the said Octave Keller obeyed the order, and while he was standing upon the scaffold engaged in work, the bottom plank or planks upon which he was standing slipped out of place or gave way, and he was precipitated into the bayou and drowned.

The petition charges that the scaffold was improperly and unsafely constructed, and was not a safe, fit, or proper place for a workman to stand upon, though it appeared to be properly and safely constructed.

The petition further charges that the defendant took no proper precautions to provide boats and ropes or other life-saving appliances in case of the occurrence of such an accident' as happened to the said Octave Keller.

The answer avers, among other things, that the death of Octave Keller by drowning was due to his own fault, negligence, carelessness, and want of prudence in the discharge of his duties; that the said Keller at the time of the accident was engaged in making a swinging scaffold, and was standing on a 12" x 14" cap or stringer, making a hitch with a rope around a plank, 1 y2" x 6" x 14" so as to swing said plank under the bridge; that while the said Keller was making or attempting to make said hitch, the other end of the lilank shifted from the end of the ties, causing the said Keller to lose his balance and fall into the water, a distance of 15 feet.

The facts set up in the answer are substantially sustained by the testimony of plaintiffs’ witnesses. Brocklen testified that he-was at work on the same bridge about four feet from Keller, who was standing on one of the caps engaged in tying the end of the plank, which was to serve the purpose of a scaffold underneath the bridge, that Keller was straddling the plank and was in a stooping position, and that the other end of the plank slipped off the ties, and Keller lost his balance and fell overboard. McGinnis, whose duty it was to handle the other end of the plank, testified that he did not move his end, and that as soon as he saw the plank move, he cried out to Keller to “Look out!”

The evidence shows that Keller had tied one end of the plank to the bridge before it slipped, and that the plank fell to the water and hung suspended by the rope.

Prom the testimony of plaintiffs’ witnesses there can be no reasonable doubt that the fall of Keller was caused by the slipping of the plank, which he was straddling at the time, and that the slipping was caused by the manner in which Keller handled the plank.

Keller was an experienced bridgeinan, and when the assistant foreman gave an order to the crew to rig the scaffold, Keller being nearest to the point where the scaffold was required, undertook the task, and selected the manner of its performance.

W|e cannot perceive how, under the undisputed facts of the case, the defendant can be charged with negligence.

Keller, after he sank, rose twice, but merely showed the tips of his fingers on the second rise. The bridge crew did what they eould to save him, but the time was too short.

[2] The learned counsel for the plaintiffs contend with much force and ability that the defendant was negligent in not having on hand life-saving appliances, such as lifeboats, lines, etc. A boat would have done no good unless it had been beneath the bridge and manned to rescue persons who might fall into the stream. Counsel has produced no authority for his contention that it is the duty of railroads to maintain life-saving boats and appliances under every bridge on their lines, where the water is deep enough to drown persons who may fall from the superstructure. Such is not the custom among railroads and the fact that defendant has maintained boats, for other purposes, at bridges under construction or repair, is without legal significance.

It is therefore ordered that the judgment below be reversed, and it is now ordered that plaintiffs’ suit be dismissed, with costs.