Reeves v. Louisiana & A. Ry. Co.

• Decision Date: 20 August 1973
• Docket Number: No. 52681,52681
• Citation: 282 So.2d 503
• Parties: Albun A. REEVES v. LOUISIANA AND ARKANSAS RAILWAY COMPANY et al.
• Court: Louisiana Supreme Court

Page 503

282 So.2d 503

Albun A. REEVES v. LOUISIANA AND ARKANSAS RAILWAY COMPANY et al.

No. 52681.

Supreme Court of Louisiana.

Aug. 20, 1973.

Rehearings Denied Sept. 24, 1973.

Kennon, White & Odom, John S. White, Jr., Robert F. Kennon, Jr., Baton Rouge, for plaintiff-relator.

Franklin, Moore, Cooper & Walsh, Charles W. Franklin, M. O'Neal Walsh, Baton Rouge, for defendants-respondents.

William N. Faller, Durrett, Hardin, Hunter, Dameron & Fritchie, Calvin E. Hardin, Jr., Baton Rouge, Milling, Benson, Woodward, Hillyer & Pierson, Guy C. Lyman, Jr., New Orleans, for defendants-appellees-respondents.

Breazeale, Sachse & Wilson, Maurice J. Wilson and Paul M. Hebert, Jr., Baton Rouge, for appellee-respondent.

SUMMERS, Justice.

The factual context

Humble Oil and Refining Company (Humble) is the owner and operator of an extensive oil refinery and chemical plant in East Baton Rouge Parish. Prior to July 16, 1968 Humble contracted with Foster Wheeler Corporation for the construction of a new petroleum coking unit on its premises. Foster Wheeler Corporation, in turn, subcontracted the work to Plant Service Construction Company. Plaintiff Albun A. Reeves was employed as a truck driver by Plant Service.

An existing coking unit was situated east of the work being done by Plant Service on the new unit. A railroad spur track, running generally in an east-west direction, was located north of and alongside pits of the existing coking unit and the unit under construction. As it was processed hot gaseous coke was dumped into these pits and then loaded into hopper cars.

The track curved to the south and terminated 600 feet west of the coking unit. Visibility of the western portion of the spur from the east was therefore impaired by the coking unit structures. The spur track had been used to service the existing coking unit. In this operation, empty hopper cars were backed onto the spur track and spotted west of the existing coking unit. They were then moved forward by a 'car hauler' for loading.

While construction on the new coking unit was in its early stages, the track was dismantled and removed. During this period, a 'stop' was erected near the west end of the old coke pit, making it apparent to those working in the vicinity that there was no railroad activity west of that point. The track was, however, reconstructed about six weeks prior to the day of plaintiff's injury on July 16, 1968.

A red and green signal light was located east of the existing unit in such a position that trains traveling west could be signaled that the track beyond the curve was either clear (green light) or obstructed (red light). This signal light was operated by Humble under an agreement with Louisiana and Arkansas Railway Company (L & A) styled the Industry Track Agreement. By the terms of that agreement, claims for injuries or damage incurred on the track arising from the joint or concurring negligence of both parties were to be borne by them equally.

The agreement recognized that the coking unit operation required the pits on the south and car hauler on the north to be very close to the tracks. At the same time, L & A's operating regulations required someone to ride the lead car of a backing train to serve as lookout. Because of the design of hopper cars, the lookout generally rode the side ladder of these cars in such a manner that he could observe the track ahead and warn the locomotive engineer of track obstruction.

The impingements on the usual track clearance caused by the coke pits and the hauler made it impracticable for anyone to ride the side of the lead car as a lookout when the train backed along the spur from east to west. A person in this position would be raked off the side ladder by the coke pit structure on one side and by the car hauler on the other. Riding on the front end of the lead car involved the hazard of being run over if the lookout fell onto the track. Posting a lookout atop a hopper car was considered impracticable by L & A because of the car's design.

Humble assumed the responsibility of installing and maintaining in good condition at all times signs, lights, tell tales and all other warning devices to prevent injury to persons which might occur because of the limited track clearance resulting from the proximity of the coke pits and the car hauler arm.

During the morning of July 16, 1968, plaintiff was driving a flat-bed truck for Plant Service. The truck was being loaded at the new coking unit with wooden forms from a pit alongside the track. C. T. Williams, the operating foreman for Plant Service, decided to move a 'cherry-picker' being used to load the truck to a location near the new coking unit and to replace it with another. Because the truck driven by plaintiff was positioned near the railroad track in such a manner that it obstructed the path over which the 'cherry-pickers' would be moved, Williams directed plaintiff to move his truck to the west of the new coking unit. In complying, plaintiff drove the truck in a westerly direction, and parked with the truck straddling the track and facing westward. From this position he waited in the truck cab for further instructions.

About ten or fifteen minutes later, while plaintiff was parked, a train owned and operated by L & A, consisting of a locomotive and 18 empty hopper cars, backed around the sharp turn of the spur track from the east. It proceeded westward until the lead car collided with the rear of the truck. The impact overturned the truck, throwing plaintiff partially from the cab. Before the train could be stopped, plaintiff and the truck were dragged approximately 150 feet. As a result, plaintiff suffered severe and disabling injuries.

This suit was instituted by plaintiff to recover damages in the sum of $442,545 for personal injuries, loss of earnings, medical expenses, etc. He named as defendants: Humble, together with certain of its employees in a supervisory or operating capacity associated with the events leading to plaintiff's injuries; L & A; Fireman's Fund Insurance Company and the Employer's Surplus Lines Insurance Company, liability insurers of Plant Service's supervisory personnel.

Both the trial court and Court of Appeal found plaintiff guilty of contributory negligence barring his recovery. Plaintiff's suit was dismissed at his cost. 263 So.2d 446 (La.App.1972). Certiorari was granted on plaintiff's application. 262 La. 1102, 266 So.2d 424.

Plaintiff should recover, and the judgments of both courts are reversed.

The issues

Humble's negligence is primarily alleged to be its failure to have warned the contractor and its employees that the train would use the spur track n the construction area, and its having given the green signal without ascertaining that the track was clear. Plaintiff maintains L & A was negligent because of its failure to have maintained a lookout on the lead car, and because of its having backed its train into the construction area without warning the construction workers.

And, finally, the negligence of the Plant Service supervisory personnel is said to consist of their failure to have adequately supervised and to have properly scheduled movement of men and equipment on and about the railroad track to prevent accidents with trains servicing the existing coking unit, and, particularly, in having directed plaintiff to move his truck onto the spur track under the circumstances.

Plaintiff's contributory negligence is asserted by all defendants.

Humble denied plaintiff's right to proceed against it in tort. The theory of this defense is that the contractor and subcontractor's work was part of Humble's regular trade, business and occupation, and for this reason plaintiff's remedy is limited exclusively to workmen's compensation. As the record makes clear, plaintiff is receiving maximum benefits under the workmen's compensation law from Plant Service's compensation insurer. Alternatively, Humble denied its negligence and entered a plea for itself and its employees alleging plaintiff's contributory negligence.

L & A pleads the provisions of its Industry Track Agreement with Humble which it contends vests in L & A contractual rights of indemnity and/or contribution from Humble. To assert these claims L & A filed a third party demand against Humble seeking indemnity and contribution in the event it should be held for damages.

In defending Plant Service's supervisory personnel, Fireman's Fund and Employer's Surplus Lines Insurance Companies deny negligence of the employees, and plead plaintiff's contributory negligence. A plea of prescription filed by Employer's Surplus Lines was overruled at the trial. Employer's also denied coverage under the insurance contract.

I.

The contention that plaintiff cannot sustain a tort recovery against Humble is without merit. This contention is grounded upon the theory that Humble is a statutory employer and plaintiff's exclusive remedy is under the Workmen's Compensation Act. It is argued that the work performed by plaintiff's employer, Plant Service, was part of Humble's trade, business or occupation. To support this position, Humble invokes the provisions of Section 1061 of Title 23 of the Revised Statutes.¹

The evidence offered by Humble to support this special defense did not sustain its burden of proof. The work being done at the time was not part of its regular business. Humble is primarily an operating or refining company. It has never designed a coking unit or any comparable plant. It has neither the design capability nor the manpower availability for this type work. Most of its new construction is let to independent contractors as in this case. The new coking unit was being built alongside the existing unit which had also been contracted with Foster Wheeler Corporation in 1962. A majority of the 1,200 employees in Humble's mechanical division are engaged in maintenance work.

Thus, it was not Humble's business practice to engage in new construction of...