44 So. 274 | La. | 1907
Plaintiff’s husband was a brakeman on one of the yard, or switching, locomotives of the defendant company. The defendant company’s railroad was being operated by another railroad company under some agreement between the two companies, and the contract of plaintiff’s husband was with the operating company, fie was crushed to death in a collision between the locomotive he was working on and a lot of dead ears that stood in the darkness on the yard of the defendant company. Plaintiff sues for his death, alleging that it occurred through the negligence of the defendant company in having failed while constructing the road to make provision for lighting the yard, and through the negligence of both companies in not having lighted said yard.
Plaintiff invokes the doctrine of Muntz v. Algiers R. Co., 111 La. 423, 35 South. 624, 64 L. R. A. 222, 100 Am. St. Rep. 495, and Hamilton v. Railroad Co., 117 La. 243, 41 South. 560, 6 L. R. A. (N. S.) 787, to the effect that, in the absence of charter or statutory permission to lease its road, a railroad company is held answerable for the breach on the part of its lessee of any of those duties imposed upon the lessor company by its charter or by law in favor of the public; that is to say, of carrying freight and passengers safely and of operating with due care to the safety of' the public generally.
In considering the liability of the lessor-company, however, the courts have made » distinction between an employé and the public generally, holding that the employé cannot recover for the breach of a duty arising under the contract of employment, as; for instance, the duty of providing a safe place to work in. East Line & Red River R. Co. v. Culberson, 3 L. R. A. 567, 72 Tex. 375, 10 S. W. 706, 13 Am. St. Rep. 805; B. & O. Ry. Co. v. Paul, 28 L. R. A. 216, 143 Ind. 23, 40 N. E. 519; Caruthers v. Kansas City, etc., Ry. Co., 44 L. R. A. 745, 59 Kan. 629, 54 Pac. 673; Axline v. Toledo, etc., R. Co. (C. C.) 138 Fed. 169; Beltz v. B. & O. R. Co. (C. C.) 137 Fed. 1016; Williard v. Spartanburg, etc., R. Co. (C. C.) 124 Fed. 796; Hukill v. Maysville, etc., R. Co. (C. C.) 72 Fed. 745; Curtis v. Cleveland, etc., R. Co. (C. C.) 140 Fed. 777;
The duty of the master to furnish the servant a safe place to work in is nothing more than one of the implied obligations of the contract. Bailey on Master’s Liability for Injury to Servants, p. 1. It is not a duty arising from the general relation which the railroad occupies towards the public or towards the servant as one of the public.
The learned counsel for plaintiff argues that this duty to light the yard was a duty owing to the public by the lessor company, and not 'one merely arising out of the contract. We take a different view. We think that the question of what light shall be furnished to the employs to work by on the premises of the employer is one strictly between the employe as such and the employer as such.
The exception of no cause of action should .have been sustained.
Judgment set aside, and suit dismissed.
