Bell v. The Globe Lumber Company, Limited

• Decision Date: 01 January 1901
• Docket Number: 14,093
• Citation: 107 La. 725,31 So. 994
• Court: Louisiana Supreme Court
• Parties: CHARLES R. BELL v. THE GLOBE LUMBER COMPANY, LIMITED

31 So. 994

107 La. 725

CHARLES R. BELL v. THE GLOBE LUMBER COMPANY, LIMITED

No. 14,093

Supreme Court of Louisiana

January 1, 1901

Rehearing refused.

APPEAL from the Second Judicial District, Parish of Webster -- Watkins, J.

J Henry Shepherd and Lynn K. Watkins, for Plaintiff, Appellee.

Stewart & Stewart and William Rufus Cowley, for Defendant, Appellant.

OPINION

MONROE J.

STATEMENT OF THE CASE.

This is an action in damages for personal injuries. There was a verdict and judgment for plaintiff in the sum of $ 10,000, from which the defendant has appealed.

The plaintiff alleges, in substance, that he was employed as a brakeman on a short railway operated by the defendant for the purposes of its saw mill; that he was on a train which was under full headway, when, without warning of any kind, the engine was reversed and the speed of the train checked so suddenly as to throw him on the track, with the result that the wheels of the car passed over one of his legs, crushing it in such a manner as to necessitate amputation. Then follow allegations as to his sufferings and impaired earning capacity, and he further alleges "that he was without fault and that the said injury is wholly due to the gross carelessness of the defendant company and the superintendent of the said company and the engineer and agents and servants of said company; that the superintendent gave the order to stop, to said engineer; that the stop was not at a usual stopping place, but was unusual; that the engineer was incompetent to operate a locomotive, and that by a proper handling of said locomotive petitioner would not have been injured."

The defendant filed an exception of "no cause of action," which, by order of the court, was referred to the merits. And, thereafter, "first reserving all rights under said exception," the defendant answered, denying generally the allegations of the petition; specially denying that plaintiff's injuries resulted from its fault; and averring that plaintiff was an experienced railroad man and assumed the risks incident to the service in which he was employed, including those resulting from any negligence of his fellow servant, the engineer. It does not appear that the defendant insisted that his exception of "no cause of action" should be ruled on, separately, and, upon the trial on the merits, evidence was offered on behalf of the plaintiff, to which no objection was interposed, showing the incompetency of the engineer. Counsel for defendant, however, requested the judge to charge that the simple allegation that the injury was caused by the negligence, or incompetency, of a co-employee, or fellow servant, is not sufficient and does not state a cause of action, unless it is further alleged that such negligence, or incompetency, was known to the employer."

The charge as given in response to this request was as follows: "Gentlemen of the jury, I have been requested to state to you" (repeating the charge asked). "I will state to you that, in the opinion of the court under the general allegation that the damage was caused by the employe that is sufficient notice to the defendant that it is contended that he knew of the incompetency of the employe who is charged to have been the cause of the damage. If they should, by omission, fail to make the allegations in the petition as strong as they should be, and if there is proof introduced which covers that defect, and that proof is introduced without objection, that it is omitted, in that case the portion of the evidence being received without objection completely cures the defects in that regard." To this, the defendant, through its counsel, reserved a bill of exceptions.

The facts, in addition to those stated, disclosed by the evidence adduced on the trial, are as follows:

The plaintiff was about twenty-six years of age, and had been working as a brakeman, and otherwise, on railroads, for fifteen years, or more, before he entered the service of the defendant. The defendant, being engaged in the lumber business, operates a railroad extending from "Yellow Pine," in Webster parish, some seventeen miles into the woods from which it obtains its logs. On the morning of July 7, 1900, a train, consisting of eight or ten skeleton cars used for the transportation of logs, a coal car and an engine, with tender, was started from Yellow Pine, with McClurken as engineer, and Doogan as fireman, on the engine, and the plaintiff as brakeman, whilst Matthews, the superintendent of the road, and two other men, Buckner and Moody, were riding on the tender. The train moved out in inverse order, that is to say, the log cars were ahead, the coal car was behind them, then the tender, and, lastly, the engine, backing and pushing the other cars. In this situation, plaintiff's position, when not otherwise employed, was on the foremost log car. A log car, it may be stated, consists of two trucks, of four wheels each, connected together by two timbers, about six by eight inches square, running fore and aft on top of them, and projecting out in front and rear, between the ends of which, as we understand it, are the "drawheads." Across the trucks, and extending out upon either side of the track, are large, squared timbers, called "bunkers," which serve to support the logs, and, from the end of one bunker to that of the other, upon each side of this skeleton car, is a pole, from about the middle of which is fastened a chain, called a "toggle." These chains, when passed over the logs with which the car is loaded, and connected together, serve to hold the load of logs in place. When the train in question had progressed about two miles, Matthews observed that one of the toggles was dragging on the ground, and there was a halt, and the plaintiff was signalled to secure it in position. In order to do this he dismounted from his place upon the forward car and went back to the car to which the toggle was attached, and, after he had fastened it properly, got on the train again at that point, signalling, either just before, or just after, getting on, or, perhaps, before and after, for the train to move on, and, as the train acquired headway, he proceeded forward to his position, and was in the act of taking his seat upon the forward "bunker," of the forward car, when, as he claims, the engineer, without warning of any kind, reversed his engine and thereby caused the "slack," resulting from the pushing of the train, to be drawn out from between the cars, successively, so that, when the reverse movement reached the car that he was on it produced a jerk, or snap, illustrated by the popping of the cracker of a whip, which, being entirely unexpected, precipitated him in front of the moving train, with the result, that his leg was crushed and amputated as alleged in the petition. Doogan, the fireman, testifies that the engine was reversed, exactly as the plaintiff claims that it was, as may be seen from the following excerpt: "Q. What called your attention to anything unusual about the train? A. A kind of motion by the engine being reversed. Q. Had there been any signal given notifying anybody that the engine would be reversed, A. Not that I seen, or heard of. Q. Where was Mr. Matthews at that time? A. He was on the engineer's side on that corner of the tank. Q. When you noticed this reversal, did you look at the engine to see what the trouble was? A. Yes, sir, I raised up and looked at the engineer, to see what he was stopping for. Q. What did you notice, what was the condition of the lever? A. He had his lever reversed, for going back the other way. Q. How long after that before you found out that Mr. Bell was hurt? A. Right immediately. Q. How did you find it out? A. Mr. Matthews hallowed to me to set up the brake, quick, that Bell was under the train. Q. That was after you saw the reversal? A. Yes, sir." White, a bridge foreman in the employ of the defendant, who was standing alongside of the train, testifies that as the cars passed him, after the plaintiff had secured the toggle, he called to the plaintiff to look out for a hand car, which, it seems, he had sent farther along the road, after which, he says (quoting his language): "I noticed that the slack was taken up in the train and I looked about for him, and, as I looked, I saw him pitch headforemost off the car," etc. Matthews had been riding on a "supply box," being a compartment of the tender, upon the side nearest the cab of the engine, with his back to the engineer and his face in the direction in which the train was moving. He says: "I noticed the toggle chain dragging the ground and I had the train to stop and Mr. Bell got off and fixed it up, and, after doing so, the train started, and Mr. Bell went over toward the last car, and the last I saw of him he was in the act of taking his seat on the bunker. About that time I saw Mr. White, and I motioned to give him an order, and, then, I noticed that Mr. Bell was missing, and I gave the signal to stop. * * * Q. State when the engine was reversed as compared with your signal? A. Well, it was reversed just as soon as the engineer saw my signal. I was in the act of crossing the tank to speak to this man White when the signal was given." Buckner and Moody were riding on the rear end of the tender, the part most remote from the cab of the engine, with their faces in the direction in which the train was moving and their backs to the engineer. They testify that they saw Bell "pitch," or fall, forward, as he was in the act of taking his seat, but that they perceived nothing unusual in the motion of the train to produce that effect. They both testify, also, that they are not railroad men, and Buckner states that he has not had enough experience to know what the movements are or how an engine is reversed, and...