Bomar v. Louisiana North And South Railroad Co.

• Decision Date: 01 October 1890
• Docket Number: 289
• Citation: 42 La.Ann. 983,8 So. 478
• Court: Louisiana Supreme Court
• Parties: WILLIAM BOMAR v. LOUISIANA NORTH AND SOUTH RAILROAD COMPANY ET AL

8 So. 478

42 La.Ann. 983

WILLIAM BOMAR v. LOUISIANA NORTH AND SOUTH RAILROAD COMPANY ET AL

No. 289

Supreme Court of Louisiana

October 1, 1890

APPEAL from the Second District Court, Parish of Bienville. Boone, J.

Young Drew & Stewart and Watkins & Watkins, for Plaintiff and Appellee.

John A Richardson, for Defendant and Appellant.

OPINION

BREAUX, J.

Plaintiff moves to dismiss this appeal on the ground alleged that it should have been made returnable to this court at this place last year; also, on the ground that this court was opened on the second Monday of October, 1890, and each day subsequent to and including the 29th day of October, 1890, at which time the transcript was filed.

The appeal was granted on the 17th day of October, 1889, too late to be made returnable to this court's session last year.

The judicial day of the present session commenced on the 2d inst. From the second Monday to that time the court was opened and closed by the sheriff as duly directed. They were not judicial holidays.

This objection has been passed upon in a number of cases. It no longer admits of discussion. The appeal was filed in time the motion is overruled.

ON BILL OF EXCEPTION TO INTRODUCTION OF EVIDENCE.

The defendant offered to prove that plaintiff was not in the employ of the defendant company at the time he was injured.

The object of the evidence was in support of defendant's allegation in his answer. The plaintiff objected to the introduction of the evidence on the ground, viz: "The answer being a general denial, followed by a special plea of contributory negligence, such plea waives the general issue."

The court maintained the objection.

It is held that there can be no contributory negligence on the part of a plaintiff, except in cases where there has been negligence upon the part of defendant. Contributory negligence exists only when the negligence of both parties has combined and concurred in producing the injury. Am. and En. Encyclopedia of Law, Vol. 4, p. 18. In alleging contributory negligence, defendant admits that there is an issue of negligence between it and the plaintiff; not between plaintiff and a third party.

The defendant has accepted the issue as presented and has chosen in its defence to plead contributory negligence.

On trial, evidence offered for the purpose of showing that another was the party who should be sued was properly excluded. The railroad's ownership was not at issue.

ON THE MERITS.

The present action is brought to recover damages for an injury to plaintiff, inflicted by the cars in the use of the defendant company and resulting in permanent injury to his right hand and arm.

The facts are substantially:

The plaintiff was in the employ of the defendant company, which owns and operates a railroad a distance of eighteen miles, from Gibbs to Homer.

It received its cars from the Vicksburg, Shreveport & Pacific R. R. Co., and made up its trains on the latter's side track.

At the Gibbsland junction the two companies had the same depot agent and freight clerk, who had control of the switches, side tracks, freight cars and freight of both companies.

The employes in the movement and transfer of freight and cars were under the authority of this agent.

The trains of the company were under the control of the conductor.

On the 8th day of October, 1888, the plaintiff attempted to couple two cars.

The drawhead of one of the approaching cars being out of repair and forced under the car, in attempting to direct the link into the drawhead of the stationary car, his hand was caught between the bumpers and severely injured.

He was employed as locomotive engineer in the service of the defendant.

The road having been lately constructed and being a short road, owned by a company recently organized, the number of employes was limited, and at times an officer or hand was called upon to do other work than that belonging to his charge.

The conductor testifies that on the morning the accident occurred, being sick, he asked the plaintiff to make up the train for him.

This request, direction or order, as the case may have been, was complied with. There was a brakeman, but no inspector of cars.

It is not an easy matter to determine what were the duties expected of the officers of this road.

The superintendent at times acted as conductor; the engineer as brakeman, the fireman as engineer, and the conductor frequently performed that duty. It was often unavoidable.

Immediately after the plaintiff had assumed the duties of the conductor he attempted to make the coupling, and met with the distressing and painful accident for which damages are sued.

In the haste of the moment, when there was but an instant for thought, seeing that the draw head had been forced under the car, he attempted to pull it to its proper place.

The spiral spring being broken, the drawhead was heavy; it had no elasticity, and could not in an instant be drawn out.

If the spring had not been out of repair it would have been possible to pull it out and complete the coupling and avoid the accident. The brakeman, evidently not a man to arrest attention, said, to the plaintiff, just previous to the accident, that he had attempted to make the coupling, but had failed.

The plaintiff directed him to get on the roof of the car and loosen the brakes.

It is not stated that the brakeman informed the temporary conductor that the drawhead was out of repair.

He had failed, that was all.

Not knowing of the broken...