Taylor v. Louisiana & N. W. R.

55 So. 732 | La. | 1911

PROYOSTY, J.

This is a suit in damages for personal injury. The facts in connection with the liability of the defendants have already been stated in the ease of R. T. Ingram against the same defendants (No. 18,349, 55 South. 580,¹ of the docket of this court), and need not be stated again. Plaintiff was one of the occupants, with Ingram, of the hand ear, from the running down of which by a train the injuries complained of resulted. But additional facts must be stated in connection with the quantum of damages; also in connection with the question of whether only the railroad company is liable, as the court a quo has found, or also the other two defendants, namely, the Frost-Johnson Lumber Company and the PrestigeBuchannan Logging Company; and, in either event, whether the railroad company is, or not, entitled to judgment over against the lumber company for any amount it may be condemned to pay to the plaintiff.

Plaintiff is a colored laborer, 39 years old. His life expectancy is 32 years. He is uneducated; dependent upon his labor for earning a living. He has a wife and six children dependent upon him for support. One of his legs was crushed and had to be amputated at the knee joint. Before the wound of the amputation healed, three abscesses developed, from which he suffered for more than three months.

[-1] The defendant railroad company leased three miles of its road to the defendant lumber company, and the latter company subleased to the logging company. The train was being operated by the logging company, for carrying the logs of the lumber company. But the two companies are admitted to be practically.one and the same, the logging company being a mere subsidiary of the other, and may be dealt with accordingly. The lease contract between the railway company and the lumber company contains the following clause:

“The lumber company is to be responsible for all damages of whatsoever kind or character which may result from the operation of said locomotives and trains, motor and hand cars, while on the tracks of the railroad company, including injuries to employés of both lumber company and railroad company or to other persons, damages by fire, for stock injured or killed, or for any accident, wreck or collision.”

Under this clause, the railroad company contends that the lumber company is answerable over to the' railway company for whatever judgment may be rendered in this case against the railway company. There was an allegation and prayer to that effect in the railroad company’s answer, but there was no regular call in warranty or prayer for citation, and no issue was ever joined on that demand.

That the lessor railroad company is also liable in case its lessees are found to have been responsible for the injury and to be liable is not seriously contested, and is clear under the doctrine of the Muntz Case, 111 La. 423, 35 South. 624, 64 L. R. A. 222, 100 Am. St. Rep. 495.

The judgment of this court in the Ingram Case is conclusive on the question of liability to plaintiff.

[2, 3] The learned judge of the lower court, by whom the case was tried without a jury, gave plaintiff judgment for only $2,000, and only against the railroad company. We thinlc that the judgment should be increased to $5,000, and should be against the three defendants in solido.

[4] A motion was made to dismiss the appeal; but, as we understand, has been abandoned. If not abandoned, it is without merit. All the parties to the suit applied for appeals, and the four appeals were granted simultaneously. The plaintiff gave bond, or, in other words, perfected his appeal, last. The motion to dismiss was predicated on the proposition- that at the time plaintiff’s appeal was thus perfected the case had already passed to the upper court as a result of the appeal of the defendants having been perfected, and the lower court was, as a consequence, divested of all jurisdiction to grant an appeal in the ease or to act in it, even to the extent of perfecting an appeal already granted. The proposition is utterly untenable, and, as we understand, has been abandoned.

For convenience of statement, we set aside in toto the judgment appealed from.

It is therefore ordered, adjudged, and decreed that the plaintiff, William Taylor, have judgment against the defendants, Louisiana & Northwest Railroad Company, and Frost-Johnson Lumber Company, and the Prestige-Buchannan Logging Company in so-lido in the sum of $5,000, with 5 per cent, interest on $2,500 thereof from September 8, 1910 (date of the judgment of the lower court), and like interest on the remainder thereof from this date. And it is further ordered, adjudged, and decreed that the demand of the Louisiana & Northwest Railroad' Company against the Frost-Johnson Lumber Company be rejected as in ease of nonsuit.

1 128 La. 934.