Burns v. Ruddock-Orleans Cypress Co

• Decision Date: 27 February 1905
• Docket Number: 15,313
• Court: Louisiana Supreme Court
• Parties: BURNS et ux. v. RUDDOCK-ORLEANS CYPRESS CO

38 So. 157

114 La. 247

BURNS et ux. v. RUDDOCK-ORLEANS CYPRESS CO

No. 15,313

Supreme Court of Louisiana

February 27, 1905

Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.

Action by Moses Burns and wife against the Ruddock-Orleans Cypress Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Harry Hinckley Hall, for appellant.

Armand Romain, for appellees.

OPINION

MONROE J.

Statement of Case.

Plaintiffs allege that their minor son, whilst employed by defendant behind a gang of circular saws, received an injury from which he died; that the accident was the result of the negligence of the defendant in failing to warn the boy of the danger of his position, and in failing to keep in repair a fender, the purpose of which was to protect him from flying pieces of wood driven by the saws; and they pray that they be awarded the damages to which the deceased would have been entitled at the moment, and to which they, by reason of being deprived of his society, affection, and support, became entitled by reason of his death. The answer admits that the deceased received an injury at or about the time stated in the petition, and that the defendant was informed that his death resulted therefrom, but it denies that such injury was caused by defendant's negligence, and alleges that the deceased had assumed the risk thereof, and by his contributory negligence released defendant from liability.

The facts, as we find them, are as follows:

The deceased, a negro boy about 17 years of age, employed by the defendant in its lumber mill, was assigned to duty behind a gang of six circular saws, which, being about four feet apart, were attached to and driven by the same shaft. The work which was being done at the moment of the accident was the cutting into lengths, measured by the distances between the saws, of slabs to be thereafter converted into laths, and the duty of the boy was to receive the pieces thus cut, as also pieces which might pass between the saws without being cut, and see that they reached an automatic carrier which operated in a trough between him and the saws.

As the tendency of the saws was now and then to drive loose pieces of wood with great velocity in the direction of the boy, a swinging fender, wide enough to extend from one end of the gang of saws to the other (say, 25 feet), and about four or five feet high, constructed of 2x12 planks, running horizontally and bolted to scantling arranged perpendicularly, was provided for his protection, the idea being that the pieces so driven should strike against the fender, and, dropping down, should slide or be drawn under its lower edge into the trough on the carrier, and thus be removed out of the way. The boy, who was then in good health was engaged in the discharge of this duty on the morning of October 28, 1903, when he suddenly fell to the floor, as though he had been knocked down. Those who saw him fall went immediately to his assistance. They testify that they found him lying on his back, apparently in great agony, screaming, and rubbing his stomach, as though a blow had been received at that point, and that, when asked what was the matter, his reply was, "Oh, Lordy]" or "Lord have mercy]" He was removed to his father's house, and a physician was called, who testifies that he diagnosed the case as one of internal injury on the left side; that there was not much to be seen in the way of contusion, and that he told the family that he would prefer waiting for 48 hours before giving a prognosis, but that the boy died on the following day; and that, assuming him to have been in good health, the blow which produced that result must have been a very violent one.

The father of the boy, who nursed and rubbed him during the night, testifies that the mark of the blow was visible on the left side, below the ribs.

It appears that the lower edge of the fender was constituted of two planks, say 12 feet 6 inches each in length, placed end to end, and that from the lower edge (beginning at the joint thus made) of one of the planks a piece was or had been split off, leaving an oblong hole underneath. There is some little difference between the witnesses as to the size of the hole, and as to whether it had existed before, or was made at the moment of, the accident.

Our conclusion is that it was about 2 1/2 inches wide at the joint, and extended for about 2 1/2 feet along the lower edge of the plank, tapering to nothing in width at the other end and that it had been there before the accident, or else that the piece, the detachment of which from the plank left the hole, had become partially detached, and in its loosened condition, was driven against the boy by another piece impelled by the saws. The evidence fails to show that there had ever been any inspection of the appliance in question. It is true that the defendant's general foreman testifies that he inspected the machinery "every day, morning and night." Upon being further examined, however, he admits that the inspection was not made by him personally, but by the millwright, who was not...