Cross v. Lee Lumber Co

• Decision Date: 15 January 1912
• Docket Number: 18,754
• Court: Louisiana Supreme Court
• Parties: CROSS v. LEE LUMBER CO

57 So. 631

130 La. 66

CROSS v. LEE LUMBER CO

No. 18,754

Supreme Court of Louisiana

January 15, 1912

Rehearing Denied February 26, 1912.

Appeal from Thirteenth Judicial District Court, Parish of Rapides W. F. Blackman, Judge.

Action by Henry Y. Cross against the Lee Lumber Company. From a judgment for plaintiff, defendant appeals, and plaintiff answers the appeal, praying that the amount of the award be increased. Judgment amended, by increasing amount of award to $ 7,500, and affirmed.

Blackman & Overton, for appellant.

Grisham Oglesby & Stennis and Hundley & Hawthorn, for appellee.

OPINION

MONROE J.

Statement of the Case.

Plaintiff sues for damages for personal injuries sustained whilst discharging his duty as "toggle knocker" in defendant's employ. Defendant pleads assumption of risk, including risk of the negligence of a fellow servant, and contributory negligence.

The duty of the "toggle knocker" is to knock loose the "toggle" or "binder" chain, by which logs, loaded upon a car, are held in position, so that they may be released and unloaded. An ordinary log car consists of two trucks, upon which are fastened, about 14 inches apart, two squared timbers, called "reaches," 7 inches thick which extend from one truck to the other and hold them in their relative positions. Across the tops of the reaches and between the wheels of the car, are other timbers, called "bunkers," 14 inches thick, upon which the logs are piled lengthwise of the car. The reaches are 18 inches above the ground, and between them the distance from the logs to the ground is 39 inches. The toggle chain passes from the reach, underneath one side of the pyramidal pile of logs, over the top of the pile, and is hooked to a short chain fastened to the reach underneath the other side of the pile; and, in order to disengage it, the toggle knocker must crawl under the car, and with a short-handled ax knock the hook out of the link or ring, constituting what may be called the "eye," in the short chain. When the log train reaches its destination, the first thing to be done, in order to unload the logs, is to knock loose the toggle on each of the cars, and the toggle knocker is expected at once to proceed to the discharge of that duty, and to continue his work until all the toggles have been disengaged. In this instance, the destination of the train was a ramp, upon which about, say, five cars could be unloaded without further movement of the train, the logs, as taken from the cars, being rolled into an adjacent pond; and we infer from the testimony that plaintiff had knocked the toggles from, say, four cars that were on the ramp and were being unloaded, and was at work under the fifth from the locomotive, at the other end of the train, when he was injured.

He was lying at the time on his back under the reach to which, by means of the short chain, the toggle was hooked, and was trying to knock the toggle hook out of its eye; and, there being but 18 inches between the reach and the ground, he was not particularly attending to the position of his feet, one of which as it happened, was resting on one of the rails of the track, either against or quite near one of the wheels of the car, so that when, without warning of any kind, the train was backed his foot was crushed, and had soon after to be amputated. The testimony shows that the car moved about two feet, when it was stopped by reason of a signal given to the fireman, who was handling the locomotive, and plaintiff was asked how much nearer than two feet his foot was to the wheel, to which question, and some others, he replied as follows:

"I can't say; I wasn't looking at my foot. I was looking at this piece of work. * * * I couldn't look at my foot and do the work at the same time. * * * They were supposed not to move until I got through, and in that way it is not dangerous. * * * A man goes under there; anybody who has done work before knows that it is easier for him to lay his legs out to do the work. * * * I suppose I would have [had room to spread his feet out, without putting either of them on the rail]; but, like I said a while ago, you get into all kinds of shapes, because you are not looking for the car to move. * * * Yes; it was dangerous in case the car should move [for him to have his foot on the rail]; but I wasn't looking for them to move."

Apart from any movement that may be caused intentionally by the movement of the locomotive, a car is sometimes caused to move by the vibration produced in relieving it of its load of logs, and we infer that such movement may be communicated to, perhaps, one or two of the nearer cars; and in such cases notice could hardly be given from the engine to the toggle knocker, as the person in charge of the engine would not himself be notified. Such movement does not, however, extend beyond from one to three inches, does not ordinarily take place when the car which is being unloaded is on a level track, and, as it appears to us, could readily be guarded against by chocking the wheels, either of the car from which the logs are being removed, or of that under which the toggle knocker is working. The car under which plaintiff was working did not move, and does not appear to have been in danger of moving, by reason of any movement resulting from the vibration of the car that was being unloaded at the moment of the accident. It moved because the fireman, who was in charge of the locomotive, upon a signal to that effect from the brakeman, caused the locomotive to move, and thereby moved the train; the purpose being to release one of the toggle chains which had already been knocked loose, but which had been fouled by a log in the process of unloading, and interfered with the work. Log trains are not unfrequently moved for that purpose, and they are also moved in order to clear the ramp of unloaded cars and place the loaded ones in position to be unloaded. So far as we can gather from the testimony of defendant's witnesses, no instructions are given by defendant looking to the safety of the toggle knocker in the event of the movement of the car under which he may be working, whether the movement be intentional or unintentional, or whether it be a few inches, a few feet, or more. Mr. Cooper, defendant's superintendent, seems to think, and so testifies, that the toggle knocker may make himself perfectly safe by keeping his feet off the rails, and, in the event of any considerable movement of the car, by swinging himself up to the under side of the reach. He says (referring to the danger from the sand boards) that, if he (the toggle knocker) were a large man (i.e., so large that a sand board, extending down to within nine inches of the surface of the track, would not pass over him), and he did not swing himself up to the reach, or, being a smaller man, did not properly adjust his person upon the track, "seven to eight feet would catch him," but that, for the purpose of releasing a fouled toggle, the trains are not moved more than three or four feet. But Mr. Cooper has never knocked toggles, and Crowder, the engineer of the train on which plaintiff was working when injured, being examined as a witness for defendant, testifies as follows, in his examination in chief to wit:

"In unloading, the logs fall off on the skidder, and very often the chains catch between the log and the skidder, and the only way we can get them loose is to pull the engine, and that cuts the chains from underneath the logs. Q. About how much of the movement of the car does it usually take to loosen the chain, under those circumstances? A. I reckon six to ten feet."

Mr. Crowder was not on the locomotive when the accident occurred, but had placed Kyle, the fireman, in charge of it, whilst he had gone back to the ramp to assist in unloading the logs. At the very moment of the accident, however, he was engaged in conversation with Mr. Cooper, the superintendent. He says that he saw Hopkins, the brakeman, signal to Kyle to back the train, and he endeavors to excuse himself for not interfering for the protection of the plaintiff by saying that he did not know that plaintiff was then at work under one of the cars; that he thought he had had time enough to get through. The train was there, before his eyes, however, and showed for itself that some of the toggles had been knocked and others had not; and hence that the toggle knocker had begun and had partly completed his work, and, presumably, was still engaged at it beneath one of the cars upon which the toggle was not as yet knocked loose. The testimony of Mr. Crowder, on his cross-examination, reads, in part, as follows:

"Q. You are an engineer. Before backing or going forward oughtn't the engineer to give a signal? A. It wasn't customary. Q. Wasn't that considered safe in unloading? A. We never do, unless we move way back; we blow three times. Q. Doesn't he ring a bell? A. Sometimes the fireman does, if he is there. Q. Ought the train to be moved without some kind of a signal? A. I guess on the main line they are required to do so. Q. Why? A. That is all the instructions we get. Q. You don't know why the signal is given? A. One is to notify any one that the train is about to move. Q. Why do you want to let them know? A. So they can get out of danger. The crew is supposed to know that they are about to move. Q. The brakeman is supposed to know without a signal? A. No, sir. Q. The men that don't give signals and work, they are entitled to know? A. He should know that it is liable to move at any time. Q. He should have some kind of notice? A. Yes, sir. * * * Q. He [Hopkins] knew that Henry Cross was under the car? A. I don't know. Q. He ought to have known? A. I don't know. Q. He knew that they had to be knocked. Q. He knew that all of them hadn't...