No. 19,026 | La. | Dec 2, 1912
Lead Opinion
Statement of the Case.
Defendant has appealed from a judgment awarding plaintiffs $7,500 as damages for the loss of their son, a lad in his seventeenth year, who is alleged to have sustained injuries, whereof he died, through defendant’s negligence; the defense being a general denial and a plea of contributory negligence. Defendant and BrooksScanlon Lumber Company are under the same control, and are what may be called “interlocking corporations”; that is to say, a majority of the stock in each is owned by the same parties, the offices of the two companies are in the same building, the lumber mills of Brooks-Scanlon Company are in or adjacent to defendant’s “railroad yards,” the raw material used in and the manufactured product of the mills are handled by defendant, defendant’s employés — a considerable proportion of them — are carried on the Brooks-Scanlon Company’s pay rolls, and altogether it is not clear where the separate interest of the one corporation begins and that of the other ends. Defendant’s machine shop, a building 60 or 70 feet long (the employés in which, though paid by the Brooks-Scanlon Company, are employed by defendant), is situated on the east side of and about 5 feet distant from its main track. On the same side, at a distance of from 100 to 200 yards north by east from the machine shop, is the “new [Brooks-Scanlon] mill.” To the westward of the main track and about 10 feet distant therefrom, at a point opposite the machine shop, is a standard gauge switch track. To the westward of that is a narrow gauge switch track.
“He [Thornhill] was whistling for me to come out and clear the way for the other local below me.”
In other words, Thornhill needed the tracks for switching purposes in the making up of his train, and so indicated by his signals, and we are inclined to think that Ma-gee,- who was a negro, was more concerned about getting out of Thornhill’s way than about the condition otherwise surrounding him, and hence paid less attention to what might be happening in the other direction; that impression being strengthened by the testimony of Westhrope, a white man, who, being asked whether, whilst ■ standing at the switch, he saw any one on the track to the northward, replied:
“No, sir; I don’t know if I noticed any one on the track or not. I could have seen any one on the track from where I was — any one up north on the track. I don’t know if I looked up the track. There was another engine there waiting for [us] to get out of its way, and we were delaying that engine, and I had my mind on getting out of its way as soon as I could.”
At all events, Magee does not appear, at any time from the moment that he started to back the locomotive to that when he ran down the water carrier, to have looked in the direction in which he was backing; for he himself testifies that he was engaged during that time in feeding his lubricator, with his face toward the south; and it is shown conclusively by the testimony of several witnesses, who were within a few feet of the spot where young Lea- was overtaken, and who saw that the tragedy was impending, and endeavored by shouting to Magee and otherwise signaling to him to avert it, that he was looking to the westward, or southward — the admitted facts being that neither he nor Westhrope saw Lea until after he had been run down, and that neither of them suspected that danger to any one was impending until they heard the warning shouts of the persons near by. It is not shown, positively, at what point Lea entered upon the main track; but from the evidence to the effect that the route by way of that track, between the spring, or a point about opposite the spring, and the place where he was run down, was the only practicable one for him to take, that he was first seen walking up the track, and was not seen anywhere else, and that the track was the route usually taken, even by persons who were not incumbered as he was, we regard it as’reasonably certain that he entered upon the track at the point referred to, or, say, 400 feet south of that at which he was run down, and that the locomotive started backing in a northerly direction from a point, say, 200 feet still farther to the south.
The testimony authorizes the conclusion that the locomotive moved at the rate of 10 miles an hour (most of the witnesses saying 10 or 12 miles), at which rate it must have covered the distance (600 feet) between its starting point and the point of collision in, say, 44 seconds, during which time the boy, moving, we will say, at the rate of 2y2 miles an hour, traveled one-fourth of that distance, so that when the locomotive started he mus-t have been within about 150 feet of the point at which he was overtaken, and might readily have been seen, as the track was straight, if either Magee or Westhrope had looked in the direction in which they were moving.
The points relied upon by way of defense may be stated in two propositions: That plaintiffs’ son, when injured, was a trespasser on defendant’s property, to whom defendant owed no duty, save to refrain from willfully injuring him; and that he was guilty of contributory negligence in using the track as a highway at a time when he must have known that it would be used by locomotives, and in failing to notice that the engine by which he was injured was approaching him from behind, and to get out of its way by stepping off the track.
It is admitted that the railroad company owned the machine shop, repair shop, railroad yards, locomotives, etc.; but it is shown that the workmen in the machine shop, though employed by the railroad company, were paid by the lumber company, and if the lumber mills are not actually within the limits of the railroad yards they are so situated that the use of the yards is absolutely essential to the conduct of their business. Drinking water was, of course, necessary to the conduct of the business of the new mill, where 80 or 100 workmen were employed; and it is undisputed that the only source of supply was the spring, between which and the mill (if they are not both within the limits of the yards) lie the railroad yards. Most of the witnesses testify that the only route by which a carrier could bring the water from the spring to the mill was through the yards by way of the main track; and no one denies that that was the most direct and easiest route, or denies that it was the only route that was ever used. When, therefore, young Lea, two weeks before his death, assumed the duties of water carrier for the new mill, the persons owning the majority of the stock in both the lumber company and the railroad company, and equally interested in the success of both, speaking through the agents employed by them to manage the affairs of those corporations, said to him, in effect:
“You will bring the water from the spring, and your best route will be over the main track, past the machine shop, since the demands of our business — lumber and transportation — make it necessary for us to block up the other avenues of access to the spring by using the adjacent land for other purposes.”
It is true that no specific instructions are shown to have been given; but the situation rendered it unnecessary that they should be, since the situation of the spring and the only practicable route for a water carrier between it and the new mill were equally well known. Apart from the testimony of other witnesses, Mr. Keyes, defendant’s general manager, testified upon that subject, in part, as follows:
“Q. The Kentwood & Eastern Railway Company have known of this public use — I say public use advisedly — they have known of this public use that has been made of their railroad tracks all along? A. I have seen people walking along the track. Q. Everybody uses it that wishes? A. Yes, sir.”
It will not do, therefore, for the defendant now to say that young Lea was injured whilst trespassing on its property. No one
Nor, since young Lea entered upon the property under those conditions, can defendant be heard to say that it owed him no duty, save to refrain from willfully injuring him; for, consenting, knowing, and expecting, in its own interest, that he would or might be there, it was bound to exercise precaution with reference to and commensurate with that possibility. It may be thought that we are losing sight of the difference between the interest of the defendant corporation and that of the holders of its stock; but, as we see the facts with which we are dealing, those interests were identical. At all events, those in charge of the business of the defendant acted upon the belief that they were, in sanctioning the use of its property by the employes of another corporation, controlled by the same stockholders, and the business of which was largely the business of the defendant.
“The word ‘corporation,’ ” says a well-known author, “is a collective name for the corporators or members who compose an incorporated association; and when it is said that a corporation is itself a person, or being, or creature, this must be understood in a figurative sense only. =? * * Although a corporation is frequently spoken of as a person or unit, it is essential to a clear understanding of many important branches of the law of corporations to bear in mind distinctly that the existence of a corporation, independently of its shareholders, is a fiction; and that the rights and duties of an incorporated association are, in reality, the rights and duties of the persons who compose it, and not of imaginary beings.” Private Corporations, Morawetz, pp. 1, 2.
It is shown that the injured boy lived about seven hours after the accident, and was conscious during the whole of that time; that at first his physical suffering was not very great, though his right arm was crushed off at the shoulder, the upper portion of the right thigh was lacerated and crushed, and there was laceration of the right side, because of the shock which he had sustained and the consequent depression of his nervous system; and that thereafter his suffering was alleviated, to some extent, by the use of opiates. It appears, however, that the opiates were not used as freely as they would otherwise have been because of the request of his parents that they be permitted to see him and talk with him before he became unconscious or stupified. Plaintiffs claim damages as succeeding to the right of the decedent, and also in their own right for the loss of his aid and companionship, and for the mental suffering sustained by them by reason of his death. The case was tried without a jury, and the judge a quo awarded them $7,500. We are not prepared to say that the amount is excessive; and the judgment appealed from is affirmed.
Rehearing
On Application for Rehearing.
It is therefore ordered that the decree handed down in this case be amended by reducing the amount thereby awarded to $6,000, and by condemning plaintiffs, instead of defendant, to pay the costs of the appeal.
Rehearing refused.