44 So. 302 | La. | 1907
The plaintiff seeks in this: action to obtain a judgment in solido against the Summit Lumber Company -and the Arkansas Southeastern Railroad Company for the-sum of $10,000, with interest thereon. As the basis for this demand, he alleges: That the Summit Lumber Company and the Southeastern Railroad Company had been for several years, and were then, engaged in the-manufacture of lumber at a sawmill plant owned by the said defendants jointly and in common at Randolph, Union parish, La., and’ in connection therewith they together owned' and operated a system of railways, tramways,. spurs, and switches extending from their said' sawmill for several miles into the interior of
That the two defendants above named, though nominally distinct concerns, were in fact under the same management, had the same stockholders, officers, agents, and employSs, and to all intents and purposes constituted one and the same corporation. That on the 8th day of October, 1905, petitioner was employed by the defendants aforesaid as night watchman and hostler,' and as such it was part of his duty to board the incoming locomotive engines of the defendants, to assist the engineers in placing said engines on their appropriate side tracks, to open and close the different switches for that purpose, to take charge of said engines when so placed on the side tracks, to eléan up same and give them necessary attention during the night, and generally to perform the duties of night watchman hostler and general utility man for said defendants:
That while employed by defendants as night watchman and hostler, as aforesaid, and on the day above mentioned, it became his duty in the course of his said employment to assist the regular engineer in placing the locomotive engine of defendants on their side tracks at or near Bardulph, Union parish, La., and, while said locomotive was moving at the rate of about four miles an hour, it became necessary in the discharge of petitioner’s duty as aforesaid for him to alight from the said locomotive engine, and throw the switch, for the purpose of running said engine into the siding to which it was destined.
That, by reason of the old, defective, leaky, and unfit condition of the tank on the said locomotive engine of defendants, water and: steam had escaped therefrom upon the steps' of said locomotive and had rendered it extremely slippery and difficult to descend, which condition was at that time unknown to-petitioner, and petitioner, while attempting to-alight from said engine, and while carefully descending said steps, slipped, and in the-effort to recover his balance his heel was caught in the cogs of the said locomotive-engine, resulting in a violent," severe, and painful mangling and tearing of petitioner’s heel, which injuries have left petitioner a permanent cripple and sufferer for life.
That the cogs in which petitioner’s heel was-caught and mangled was improperly constructed, and was uncovered, exposed, and, dangerous, and was not screened by any fender or other covering such as was usual: and necessary on locomotive engines of that kind, and which, if present, would have prevented the injury which befell petitioner..
That petitioner in alighting from said engine did so in a careful manner in the customary way, and as his duties required,, and he would have alighted therefrom in, safety but for the defective, leaky, and unfit condition of the engine tank aforesaid, the-consequent slippery and dangerous condition of the steps of said locomotive, and the unscreened and dangerously exposed condition, of the cogs in which petitioner’s heel was-caught.
That the injuries suffered as above described were due to no fault or neglect on the-part of petitioner, but were caused wholly by the gross and wanton negligence, carelessness,, and recklessness of defendants in failing to-keep their said locomotive engine in proper-repair, and in creating and permitting the-improper -and dangerous condition of the-aforesaid tank, steps, and cogs on said locomotive.
That within a few days after petitioner-sustained the injuries aforesaid the defend
That .at the time of the aforesaid accident petitioner was earning $54 a month, straight time. That, as a result of the injuries received, he was and is incapacitated for work, ■and is unable to perform any kind of physical labor, which is his only means of support and by which means he formerly earned a livelihood, and that petitioner is informed and believes, and, so believing, avers, that he ■will never again be able to perform such labor and earn his livelihood as before.
That, by reason of petitioner’s injuries aforesaid and the resulting physical pain, ■discomfort, inconvenience, mental anguish, ■•and suffering, he has been damaged in the sum of $5,000 and in expense for medical •attendance, loss of time and wages, and in the ■permanent disability to perform physical labor he has been damaged in the further sum <©f $5,000, making a total of $10,000 as above alleged.' Petitioner avers that the aforesaid indebtedness is due and has been demanded without avail.
In view of the premises, he prays for service hereof, and citation according to law on the said Summit Lumber Company and on the said Arkansas Southern Railway, and on each of them, and that after due proceedings had there be judgment in favor of petitioner and against the said Summit Lumber Company and against the said Arkansas Southern Railroad Company, in solido, for and in the full sum of $10,000 with-per cent, per annum interest thereon from judicial demand until paid, and for all costs of this suit. And further for full, general, and equitable relief.
The defendants answered, pleading the general issue. Further answering, they averred that whatever injury plaintiff received it •was by his own fault and negligence, and defendants were in no way responsible for the same.
The district court rendered judgment in favor of plaintiff against the Summit Lumber Company for $3,500, with legal interest from the 21st of August, 1906, until paid.
That company appealed. Appellee has answered the appeal, praying that the judgment be amended increasing the amount awarded to him to $7,500.
Plaintiff urges:
(1) It is the duty of the master to an employs to make use of reasonably safe appliances. Uncovered cogs of a “shay” engine, combined with a leaky tank, which renders the steps used in ascending and descending from the cab of the engine slippery, are not safe, and the master who permits them to be thus — becoming dángerous — is guilty of gross negligence. Stucke v. Railroad Co., 50 La. Ann. 172, 23 South. 342; Gualden v. Railroad Co., 106 La. 409, 30 South. 889; Ingham v. Honor, 113 La. 1040, 37 South. 963; Williams v. Lumber Co., 114 La. 805,
(2) Assumption of risk, like the plea of contributory negligence, must be specially urged, and cannot be availed of under the general issue. Especially is this true with reference to the extraordinary risks which are shown to have been created by the master in this case, and which by his employment plaintiff did not assume. Buechner v. N. O., 112 La. 599, 36 South. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455; Labatt on Mast. & Servant, § 841b.
(3) A servant who performs a duty just as he had seen others perform it, and in which men experienced in that kind of work declare is the ordinary and proper method of doing so, is not guilty of contributory negligence. Potts v. Railroad Co., 110 La. 1, 34 South. 103, 98 Am. St. Rep. 452.
Defendant urges:
That the injury which plaintiff received was one which was ordinarily and naturally incident to his employment, and was assumed by him. Carey v. Sellers Co., 41 La. Ann. 500, 6 South. 813; Pollich v. Sellers, 42 La. Ann. 623, 7 South. 786; Sauer v. Oil Camp, 43 La. Ann. 699, 9 South. 566; Dandie v. Railroad Co., 42 La. Ann. 689, 7 South. 792; Henry v. Brackenridge Co., 48 La. Ann. 950, 20 South. 221; McCarthy v. Whitney Iron Works, 48 La. Ann. 978, 20 South. 111; Jenkins v. Maginnis Cotton Mills, 51 La. Ann. 1017, 25 South. 643; Duncan v. Railroad Co., 51 La. Ann. 1785, 26 South. 478; Creole Lbr. Co. v. Mills (Ala.) 42 South. 1023.
(2) All extraordinary risks are assumed by the servant when he has knowledge thereof, or when by the exercise of ordinary care he might have such knowledge. Satterly v. Morgan, 35 La. Ann. 1166; Tillotson v. Texas & P. R. R., 44 La. Ann. 95, 10 South. 400.
(3) The servant’s knowledge of patent defects carries with it knowledge of the coneomitant dangers. Erslew v. Traction & R. R. Co., 49 La. Ann. 96, 21 South. 153.
(4) Plaintiff having knowledge of the risk, his comprehension thereof is an unavoidable inference. Welton v. Genessee Lbr. Co., 114 La. 842, 38 South. 580.
(5) A servant is as a matter of law guilty of contributory negligence when, having the choice of two or more ways of performing a given duty and having notice of all conditions, he voluntarily chooses a dangerous method of doing the work when he might have chosen a safe one. Ryan v. Railroad Co., 44 La. Ann. 806, 11 South. 30; Daly v. Mfg. Co., 48 La. Ann. 214, 19 South. 116; Settoon v. Railroad Co., 48 La. Ann. 807, 19 South. 759; Davernet v. Railroad Co., 49 La. Ann. 484, 21 South. 644.
(6) To hold the master guilty of- negligence with regard to uncovered machinery the servant must be shown to be excusably negligent or incompetent to appreciate the danger.
(7) No legal requirement imposes upon the master the duty of warning an employs of dangers readily ascertained and where the latter has all means necessary to ascertain the actual condition.
Counsel support their proposition in their brief by copious extracts from decisions of different courts.
We have to examine the facts of this particular case to ascertain whether they bring it within any one or more of the doctrines contended for.
The evidence shows that the plaintiff had been in the employ of the Summit Company as a night watchman for two or three months prior to the day of his receiving the injury-which gave rise to this suit. The company used a number of engines in its business. Among these was one which is referred to as a “shay engine,” which is geared by a system of cogs for strength, rather than speed. These cogs are not on the ordinary
A man by the name of Morris was the engineer on the shay engine on the night in-question. He did not see Roff as he went down the step, but did just before. He was-holding on to both handholds with his hands.. He had his lantern on his arm. It was customary for a man acting in the capacity Roff' was acting to do and act as he did. It is-customary for the switchman, in order to throw a switch, to get down from the engine-
The defendant company was beyond a doubt greatly at fault in allowing the. shay engine to be operated as it was without a screen or guard over the cogs upon it to protect parties coming in contact with it and in allowing the engine to be operated with a tank in the leaking condition it was. Those engines come from the factory with a guard over it, and the defendants, for some reason not explained, had permitted it to be taken off. It must be held to have had knowledge of those facts as the condition of the cogs and of the tank had continued for several months. We do not find that the plaintiff was guilty of negligence in the performance of his work. What he did was precisely that which he was expected to do, and the manner in which his work was done precisely that
This is not a case calling for an application of the doctrine of contributory negligence. It involves no such question. The proximate cause of the injury was the slippery condition of the steps occasioned by the employer furnishing his employé improper appliances for the performance of the duty imposed upon him in violation of one of the basic obligations placed by law on the master as resulting from his relations with his employés. The steps ■were instrumentalities furnished by the defendant company to its employé to enable ¡him to perform his work. Defendant’s duty ito furnish proper appliances was a continuing one. It was its duty, not only to have the appliances furnished its workmen suitable at one time for the safe performance of the work, but to see to it. that they continued to be so, so long as the work was to be performed. Defendant’s fault in respect to the leaking tank in this particular instance was aggravated by the fact that, in spite of the increased danger to the workmen resulting from the situation it allowed the cogs to be uncovered and unguarded, carrying with it as a result of any accident that might happen the most deplorable consequences. Defendant urges that plaintiff assumed the risk of meeting with the accident he did in accepting service with it; that the leaking of the tank upon the steps was visible and known to him and he ought to have refused to do the work if he considered it too dangerous.
Its proposition is that, though it had itself willfully violated one of the most important obligations of its contract by furnishing the plaintiff with improper appliances for his work (forcing him to perform it under unnecessarily dangerous conditions), it was not the company which assumed the risk of any resulting accident under such conditions, but was the workman (working under the necessity of gaining his living) who assumed the risk of an accident happening to himself under such circumstances.
The statement of that proposition it would seem should carry with it its own refutation. If that were true, the jurisprudence under which an employer is prohibited from entering into an express agreement with an employé — that he will waive all damages against the employer for his negligence — becomes nugatory. It would suffice to bring about the same result under such a construction of the law that contract of labor be held to have been entered into with the implied obligation by the employé that he would not claim damages from a willful violation by the employer of his obligations, if that violation should be known. There would be no check upon the violation of their contracts by employers if that construction of the law were adopted.
“Servants,” said Lord Cranworth, “must be supposed to run the risk of the service in their contemplation when they voluntarily undertake it and agree to accept the stipulated remuneration. This, however,” he adds, “supposes that the master has secured proper servants and proper machinery for the conduct of the work.” Wood on Master & Servant (2d Ed.) p. 675.
The rule on that subject as found in the best writers usually reads that when a servant enters into the employ of another he assumes all the risks “ordinarily” incident to the business. He is presumed to have contracted with reference to all the hazards and risks “ordinarily” incident to the employment.
The willful violation of the defendant of his legal obligation to furnish its employé
Plaintiff was called on to perform his work at night. Whether Roll: slipping on the step was due solely to the presence of water upon it, or to the presence of mud, as well as water, does not appear. Plaintiff was not required under the circumstances of the case to show precisely what the cause of his slipping was. Kennon v. Railroad Co., 51 La. Ann. 1599, 26 South. 466. He testifies that he did not see anything on the steps on that night and obviously he did not know of anything being upon it.
We are of the opinion that the defendant in its action and conduct was greatly at fault, and that the plaintiff was not at all so. We are of the opinion that the judgment appealed from is correct, and it is hereby affirmed.