Bourg v. Brownell-Drews Lumber Co., Ltd.

• Decision Date: 09 January 1908
• Docket Number: 16,706
• Citation: 45 So. 972,120 La. 1009
• Court: Louisiana Supreme Court
• Parties: BOURG v. BROWNELL-DREWS LUMBER CO., Limited

45 So. 972

120 La. 1009

BOURG v. BROWNELL-DREWS LUMBER CO., Limited

No. 16,706

Supreme Court of Louisiana

January 9, 1908

Rehearing Denied March 16, 1908.

Appeal from Twenty-Third Judicial District Court, Parish of St Mary; Albert Campbell Allen, Judge.

Action by Arthur Bourg against the Brownell-Drews Lumber Company Limited. Judgment for plaintiff, and defendant appeals. Amended and affirmed.

The following is the sketch referred to in the opinion:

[SEE ILLUSTRATION IN ORIGINAL].

Charles Leonard Wise and Charles Frank Borah, for appellant.

Gordy &amp Gordy and O'Niell & Alpha, for appellee.

OPINION

MONROE, J.

Statement.

Plaintiff sues for $ 21,000 as compensation for damages said to have been sustained by him in consequence of the death of his minor son, which event he alleges was brought about through the breach of contract and negligence of the defendant, by whom the boy was employed. Defendant denies the existence of the alleged contract and the negligence imputed to it, and alleges that the death of the minor was the result of his own imprudence. The material facts, as we find them from the evidence in the record, are as follows, to wit:

In the summer of 1905, when the minor was a little more than 13 years old, he was employed by defendant to do light, odd jobs, such as carrying strips from the rip saw and shavings from the lathe, and cleaning up, generally, about a saw and planing mill and wood-working factory, and he worked in that employment for a few months, when he turned his attention to something else. About the 20th of February, 1906, however (lacking still a month or so of being 14 years of age), he was re-employed by defendant, and shortly afterwards his father, plaintiff herein, who was also in defendant's employ, spoke to the latter's foreman in regard to the work that the boy was to do, and an understanding was reached that he was not to go about the engine or any dangerous machinery, but was to be employed in the "shop," operating the band or jig saw, or learning to operate the lathe. The shop adjoins the engine room, to the rear, and the planing and saw mill departments adjoin it, to the right, while the carpenter shop is in the rear of the "stock room," all, as will appear from the subjoined sketch, A (which, though not drawn according to scale, and not showing measurements with even approximate accuracy, may serve, in a general way, to illustrate the text of this opinion). Prior to the date of the minor's employment, defendant had had trouble with the heating of a journal of the main shaft (indicated on the sketch as "Hot Box"), and with the heating of the "wrist pin" (by which, we understand, is meant the pin connecting the piston with the crank), and had installed a small cold water pipe, equipped with a globe valve, a stiff joint (or swivel), a nozzle, and a faucet (or pet cock), which could be brought to bear upon either of the places mentioned, and made to remain in position and discharge upon the heated metal a stream or spray of water. The heating of the main journal was a matter of frequent occurrence (though defendant's president testifies in effect, and it goes without saying, that the journal ought not to have become heated unless the engine was either badly constructed, neglected, or overloaded), and the resulting wearing out or burning of the brasses produced, at times, the irregularity in the movement of the machinery which is described as "knocking." That being the situation, and the minor being usually at work in the shop only about 15 or 20 feet away, and there being a door or opening between the shop and the engine room, defendant's foreman, Kreisele, made it a part of his (the minor's) duty to attend to the cooling of the journal and wrist pin, by applying the water through the pipe when necessary for that purpose. The platform upon which the pipe was installed was, however, an unsafe place for any one to work in, and particularly so for a boy of 14, since, as he faced the revolving crank and shaft, he was in a cramped space about 20 inches wide, with the cold water pipe and a 4-inch hot exhaust pipe on his left, and a rapidly moving belt on his right. In addition to which the flooring of the platform was usually more or less wet or greasy or both, and if water, either by accident or design, were applied through the pipe to the crank or its connections it was likely to be thrown back into the face of the person holding the pipe. Again, the belt (indicated on the sketch by the arrow) pulls from the bottom, so that the top works loose, and the belt not unfrequently comes off the pulley; moreover, it rises from the surface of the platform at the pulley to the height of some five or six feet at the point where it enters the shop, and altogether, to a person operating alongside of it, was at the time of the accident an uncertain factor and an element of danger. In fact, speaking of the platform in question, which appears to have been put up for the accommodation of the water pipe, Mr. Brownell, president of the defendant company, says in his testimony that "it was built with the idea that no one would be allowed there except those who were competent and experienced in machinery." On the morning of and shortly before the accident, the boy was standing near the jig saw in the shop when he was spoken to by Columbus Towles, who says that he then had in his hand a small saw about a foot long by possibly half an inch in width. A little later he was spoken to at the same place by a witness named Dracket, who inquired for the foreman, and being told that the latter had gone into the mill left the shop, by the door marked "S" in search of him. Within perhaps a minute and a half (whilst he walked rapidly a distance of 70 or 75 feet) Dracket's attention was attracted by his hearing something fall, and he at once retraced his steps, and found the boy lying dead, or nearly so, on the floor between the steps of the platform and the wall or partition between the engine room and the shop, at the point "X," with the foreman and other employes of the mill standing about him.

Royster, a witness for plaintiff, testifies that on several occasions during the boy's first employment he had heard the foreman tell him to go and turn water on the wrist pin, while the engine was running, and that he had seen him go there in the presence of the foreman. Berger, a witness for plaintiff, testifies that during the boy's second employment he had seen him on the platform cooling the journal or wrist pin on several occasions; that he saw him there three or four days before the accident; that he, then, remarked to the foreman, "I notice that you have the knock out of the engine," and that the foreman replied, "Yes; I have got Sidney to 'tend to it.'" Bernichaux, a witness for plaintiff, testifies that he was on the scene soon after the boy was killed, and before the body had been removed; that he asked the foreman how the accident happened, and that the foreman replied that the boy was cooling the box.

Terrebonne, a witness for plaintiff, testifies that he met the foreman at plaintiff's house upon the evening of the day upon which the accident happened, and asked how the boy got killed, and that the foreman replied that he was "cooling off that hot box, * * * that he turned his back, when he and the boy were on the platform, and the first thing he heard a noise, and he looked around and the boy was in there -- in that wheel -- and everybody was running, and he could not say to me how he got killed."

Cronier, a witness for plaintiff, testifies that he was at work at the resaw when his attention was attracted by the blowing of the whistle; that he ran to see what was the matter and found the boy lying dead, or nearly so, and the belt (marked with the arrow) off the pulley; that the foreman was then standing near the throttle valve (indicated on the sketch by the letter "V"); that the foreman, after a little, instructed him to put up a railing along the side of the platform, which he proceeded to do; that they observed whilst they were working and looking about to see what happened that the dust had been knocked or rubbed off a part of the inside of the fly wheel, and concluded that it had been done by the boy's body as he was carried around in the wheel; that the foreman found a saw, such as the witness Towles describes, in or near the pulley (on which the [arrow] belt is geared), and said that the boy was killed fooling around the belt; "he said he struck the belt."

Gus Drews, a member and secretary of the defendant's company, testifies that the safety of the company's employes was entrusted to Kreisele, the foreman, and that he had ample authority in the premises. The foreman denies that he made any such agreement as to the boy's employment as is testified to by the plaintiff; denies that he ever directed the boy to cool the journal or the wrist pin, or knew that he ever went on the platform for that or any other purpose; denies that he made the statements attributed to him by Berger, Bernichaux, and Terrebonne; and, denies that he ordered Cronier, upon the day of the accident, to build the railing; but he admits that he gave such an order on the following day, and that the order was complied with, and it is conceded by all of defendant's witnesses that, with the railing as thus built, a person slipping or stumbling on the platform could not well fall into or on the belt that runs by the side of it.

Apart from the denials referred to, the foreman testifies that the journal had "run hot" about a week before the accident; that he had taken out the box and rescrapped and replaced it, and that thereafter the journal "ran warm" and was "running warm" on the day of the accident; that in the morning...