Budge v. Morgan's Louisiana And Texas Railroad And Steamship Company

• Decision Date: 01 January 1901
• Docket Number: 14,105
• Citation: 32 So. 535,108 La. 349
• Parties: GEORGE BUDGE v. MORGAN'S LOUISIANA AND TEXAS RAILROAD AND STEAMSHIP COMPANY
• Court: Louisiana Supreme Court

32 So. 535

108 La. 349

GEORGE BUDGE v. MORGAN'S LOUISIANA AND TEXAS RAILROAD AND STEAMSHIP COMPANY

No. 14,105

Supreme Court of Louisiana

January 1, 1901

Rehearing denied.

APPEAL from the Twenty-third Judicial District, Parish of St. Mary Allen, J.

Foster Milling, Godchaux & Sanders, for Plaintiff, Appellee.

D Caffery & Son, for Defendant, Appellant.

OPINION

MONROE, J.

Plaintiff sues for damages for personal injuries sustained whilst in the discharge of his duties as brakeman in defendant's employ at Morgan City. The petition alleges that, after he had coupled certain cars to an engine, the train moved and petitioner, as was his duty, climbed upon the ladder of the first box car that approached him for the purpose of riding to the next switch, "and when his hand had almost reached the topmost round of the ladder, the said car jumped off the track, came near turning over on your petitioner, threw him from the ladder to the plank flooring on the track, and caught his right leg in such a way as to crush the ankle and leg below the knee; that the injury was occasioned by a defect in that part of the machinery which allows the body of the car to work upon the axles of the trucks so as to allow the trucks to turn in order that they will take a curve in the track, and, as this part of the machinery was worn, defective, or had become loose, the trucks and wheels were thereby locked and could not take the curve, thereby causing them to jump the track, which almost overturned the car upon (which) your petitioner was riding and caused great personal injury to your petitioner, as aforesaid. He shows that this accident was caused without any contributory negligence on his part, but was due entirely to the negligence of the company in placing upon the track a car which was not safe for its employees to handle, but, to the contrary thereof, being so defective as to be dangerous for said employees. That said injury would not have happened to petitioner but for the defect in the mechanism of the car, as aforesaid." There are further allegations setting forth the sufferings of the petitioner, the amputation of his leg, the expenses incurred by him, and his impaired earning capacity, and a prayer for judgment in the sum of $ 25,313.00. The defendant denies the existence of the alleged defect in the car, denies that the injury of which petitioner complains was the result of any fault or negligence on its part, and alleges that plaintiff contributed to, if he did not wholly cause, the accident by the negligent and unskillful manner in which he performed his duties as switchman. It further alleges that if the negligence of any other of its employes contributed to said accident, the defendant is not responsible therefor, either under the general law, or under the provisions of its legislative charter, being act No. 37 of 1877. And, finally, and in the alternative, that, if the accident was not contributed to by the negligence of the plaintiff and was not due to the negligence of a fellow servant, it was a risk assumed by the plaintiff, as incidental to his employment, for which the defendant is not liable. There was a verdict and judgment for the plaintiff in the sum of $ 12,500, from which defendant has appealed.

There are certain facts which are either admitted or established beyond controversy, to-wit:

The plaintiff was an active man, who, for about four years, had been employed by the defendant as brakeman at Morgan City. The defendant's main track, from New Orleans, approaches that station from the east. On the south side of this track, there are quite a number of other tracks, switches, and sidings that are used for the accommodation of the traffic carried on between the railroad and the steamship lines, and, among them, there are two parallel tracks, running along the front of the wharf, the one about seven feet in the rear of the other. These tracks are reached by what, in order to distinguish it, may be called the "main switch," which leaves the main track some distance farther back, and they are connected together by means of a switch which extends from one to the other in a short, reverse, curve. Using the accompanying rough sketch, for convenience of illustration. "A" may be supposed to represent the main track, "B" and "C" the two parallel tracks, "D" the connecting switch, "E" the point at which the accident occurred, "F" the wharf, and "G" the main switch.

[

Upon the morning of May 27, 1900, the plaintiff had coupled to the switch engine several cars, standing on the track "C," that were to be pulled out, through the switch "D," on to the track "B," and when the engine and forward car had passed, at the rate of three or four miles an hour, he ascended the ladder on the second car, which was an empty box car, in order to go on to the next switch, and had about reached the top of the car when the rear truck, instead of taking the turn into

SEE ILLUSTRATION IN ORIGINAL]

the switch, mounted the rail, or split the switch, and went off the track, causing the car to jolt and list toward the front of the wharf in such a way that the plaintiff was either thrown off, or, being apprehensive that the car was about to turn over, jumped off, with the result, that one of his legs was caught between the derailed truck and the outside rail of the track "C," and was so badly crushed that it subsequently became necessary to amputate it below the knee. The track is laid upon the level plank wharf and is shown to have been in perfect condition, and the engine, the forward car, and the forward truck of the car upon which the plaintiff was riding, had passed, in safety, over the point at which the rear truck was derailed. There was present, at the moment of the accident, besides the plaintiff, Joret, the yard master, and Blancon, a switchman; and Joret, shortly afterwards, replaced the car on the track. Being asked who assisted him, he answered, "Blancon was the only one, there might have been others around there, but I did not notice them." Blancon, on the other hand, testifies that the car was put back by "Mr. Joret, young Shinn and some of the other boys." And "young Shinn" testifies that the car had already been put back on the truck when he first saw it. No one who admits having participated in replacing the car on the track, except the yard master, has testified in the case. It is not disputed that it was the duty of the yard master to see that the property belonging to the defendant and the rolling stock in the yard at Morgan City were in good order. Being called to the stand on behalf of the defendant, this witness, early in his direct-examination, was asked what means he used in replacing the derailed car on the track, to which he replied, "I just jacked it up a little and used the frog." Later on, his attention was called to the question of the alleged immobility of the rear truck, resulting from the locking of the friction plates, which the plaintiff asserts was the cause of the accident, and he was asked whether he could have replaced the car on the track with the friction plates locked in such a manner as to immobilize the trucks, to which he replied, "No, sir, it would be a matter of impossibility to replace the car back on the track with the plates locked, unless you would put a jack screw under it and jack it up first." HE was then asked, "did you use a jack screw in putting that car on the track? to which he answered, "No, sir, I never thought of a jack screw at the time. Q. What did you use to put it back on the track? A. I just used an iron bar, like the company furnishes for that purpose." Still later, he was again asked, "How did you get this car back on the track?" and he replied, "I just run the frog there and pulled it back with the engine. He was asked, "Did you examine the trucks of the car before you put it back on the track?" He replied, "No, sir, the only thing that I done was to put it back on the track." Being asked, at another time, "Mr. Joret, after Budge was hurt, did you look at the car from which he fell or jumped?" He replied, "No, sir, I looked at it after it was put back on the track. Q. State whether or not the hanger pin was out of the socket before it was put back on the track? A. That I don't know." Being asked as to any subsequent examination, he testifies that he made no thorough examination of the car. Referring to a statement made by him that the hanger pin was out of its socket, he was asked, "Now Mr. Joret did you find any other cause for the jumping of the track, other than the defect you saw in this car? To which he answered, "No, sir."

In his report to the company, of even date with the accident, the witness says, "Accident was caused by rear truck of car splitting switch and taking wrong track, thus twisting car and causing it to lean over badly."

Blancon assisted in taking the injured plaintiff home and then returned to the scene of the accident before the car was replaced on the track. He was asked, by counsel for defendant, "Well sir, did you, at the time that the car was off the track, look around at the trucks?, and he answered "No, sir." He was recalled, late in the trial, and asked, by the same counsel, "Now can you state whether or not the hanger pin was out of that car before it was jerked back on the track?" And he answered, "I don't know." And yet, at other times, he says that he looked around the car "right after the accident," and that the hanger pin was then out of its socket, and that there was a nut missing from a bolt in the upper friction plate, but that the plates were in position, and that there was nothing otherwise the matter with the truck; that the truck was replaced on the track by Joret, Shinn, and some of the boys "with a rope," and that they had...