Smith v. T. J. Sellars & Co

Decision Date01 May 1888
Docket Number10,074
Citation40 La.Ann. 527
PartiesGEORGE SMITH v. T. J. SELLARS & CO
CourtLouisiana Supreme Court

APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

Harry H. Hall, for Plaintiff and Appellee.

Charles S. Rice, for Defendants and Appellants.

OPINION

WATKINS J.

Plaintiff claims ten thousand dollars damages for injuries inflicted, at the hands of the defendants, under the following circumstances:

That on or about the 12th of July, 1886, he was employed by the defendant as a laborer to assist in the demolition of the Exposition buildings, in this city, and, while thus engaged he was injured by a falling joist.

That shortly prior to receiving the injury, "in order to protect himself from possible danger at the derrick, to which post he had been assigned by defendants' foreman, he rove the line of the fall entrusted to his care, through a block fastened to the derrick platform, thus permitting him to effectively perform his duty, at a safe distance from the derrick; that, arbitrarily, unreasonably and unlawfully, the foreman of the defendant ordered him to remove said block, and would not permit him to work in a place of safety; and that he was subjected by the defendant to the authority of said foreman, their agent, and was compelled to obey him; and that in consequence, solely of the said unlawful acts of defendant and their aforesaid agent," he received the injury complained of.

"That the danger which alone could have or was seen by him, in his employment, was the breaking or falling of timbers swung to the derrick, and being lowered; that the joist that fell and injured him was not swung, but would not have struck him had he been permitted to use the block, as above set out."

In limine the defendant tendered the plea of "no cause of action," and it was overruled, and we think incorrectly.

The danger against which the plaintiff sought to guard himself, by reaving the line of the fall through a block attached to the derrick platform, "was the breaking, or falling of timbers swung to the derrick and being lowered," and not the falling of "the joist" that was not so swung, or being lowered.

The unlawful act of the defendant that is assigned, is that of its foreman in refusing to permit him to "perform his duty at a safe distance from the derrick," in the manner stated above.

There is no charge that the falling of the joist was apprehended, and danger from that cause foreseen, by either the plaintiff or the defendant's manager. On the contrary, the petition contains the distinct averment "that the danger which alone could have been or was foreseen by him, in his employment, was the breaking or falling of timbers swung to the derrick and being lowered."

The dangers from a falling joist was unforseen, and not anticipated by either.

There is no charge that the falling of the joist was occasioned through the fault or negligence of the defendant, its servants, or agents. It is not averred that the falling of the joist should have been foreseen and provided against by the defendant and its managers.

From the allegations of the petition we take it that the falling of the joist was the result of an accident; and it may have been caused by some latent defect in the construction of the building. This was a danger entirely independent of that which might have threatened the plaintiff by the falling or breaking of timbers swung to the derrick.

The falling of the joist seems to have been altogether fortuitous. The place where the plaintiff was...

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10 cases
  • Lucius v. Harris
    • United States
    • Mississippi Supreme Court
    • 5 Marzo 1934
    ... ... 1115, et seq.; Thompson Com. Neg. (2 Ed.), sec. 5379; ... Lee v. Powell Bros. etc., Co., 126 La. 51, 52 So ... 214; Miss. Utilities Co. v. Smith, 145 So. 896; 28 L. R. A ... (N. S.) 1218 ... The ... "ordinary" risks of the service are best defined as ... those risks which remain ... the danger and with ample opportunity to guard against it ... See Smith v. Sellars & Co., 40 La. Ann. 527, 4 So ... 333; Tillotson v. T. & P. Ry. Co., 44 La. Ann. 95, ... 10 So. 400; Smart v. La. Electric Light Co., 47 La ... ...
  • Nicholds v. Crystal Plate Glass Company
    • United States
    • Missouri Supreme Court
    • 22 Diciembre 1894
    ...Mass. 580; ""Sullivan v. India Mfg. Co., 113 Mass. 398; ""Ladd v. Railroad, 119 Mass. 350; ""Railroad v. Watson, 114 Ind. 20; ""Smith v. Sellars, 40 La. Ann. 527; ""Bengston v. Railroad, 47 Minn. ""Hughes v. Railroad, 27 Minn. 137; ""Sherman v. Railroad, 34 Minn. 259; ""Perigo v. Railroad, ......
  • Lucey v. The Hannibal Oil Company
    • United States
    • Missouri Supreme Court
    • 4 Junio 1895
    ... ... Railroad, 108 ... Mo. 97; Gleason v. Mfg. Co., 94 Mo. 201; ... Aldridge v. Furnace Co., 78 Mo. 559; Price v ... Railroad, 77 Mo. 508; Smith v. Railroad, 69 Mo ... 32; Devitt v. Railroad, 50 Mo. 304; Williams v ... Railroad, 119 Mo. 323; Porter v. Railroad, 71 ... Mo. 66; Watson v ... ...
  • Jacobson v. United States Gypsum Co.
    • United States
    • Iowa Supreme Court
    • 10 Abril 1909
    ... ... Martin v. Electric Light Co., 131 Iowa 724; ... Clark v. Liston, 54 Ill.App. 578; Edison Co. v ... Davis, 93 Ill.App. 284; Smith v. Sellers, 40 ... La.Ann. 527 (4 So. 333); Aldridge v. Furnace Co., 78 ... Mo. 559; Swanson v. Railroad Co., 68 Minn. 184. This ... limitation of ... ...
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