Farris v. Louisiana Long Leaf Lumber Co.

• Decision Date: 03 November 1920
• Docket Number: 23592
• Court: Louisiana Supreme Court
• Parties: FARRIS et al. v. LOUISIANA LONG LEAF LUMBER CO. et al

86 So. 670

148 La. 106

FARRIS et al. v. LOUISIANA LONG LEAF LUMBER CO. et al

No. 23592

Supreme Court of Louisiana

November 3, 1920

Rehearing Denied December 4, 1920

Appeal from Twelfth Judicial District Court, Parish of Sabine; John H. Boone, Judge.

Action under the Employers' Liability Act by A. B. Farris and another, as surviving parents of Mason Farris, deceased against the Louisiana Long Leaf Lumber Company and others for compensation for his death. Judgment for plaintiffs awarding compensation, and defendants appeal.

Judgment amended by increasing the monthly award and fixing the method of payment, and as amended affirmed.

Thornton Gist & Richey, of Alexandria, for appellants.

Foster & Woosley of Leesville, for appellees.

OPINION

Statement of the Case.

MONROE C. J.

This is an action under the "Employers' Liability Act" (No. 20 of 1914), in which plaintiffs, as surviving parents, claim compensation for the loss of their son, Mason Farris, a minor under 18 years of age, who was killed by accident while in defendant's employ, and, as plaintiffs allege (that allegation presenting the main issue in the case), whilst "performing services arising out of and incidental to his employment in the course of his employer's business." Plaintiffs claim $ 2,700 as 50 per cent. of decedent's wages during a period of 300 weeks; and the trial court gave judgment in their favor against the two defendants, in solido, for $ 1,500. They and the Lumber Co. have appealed; the failure of the other defendant, Victoria, Fisher & Western Railway Company, to do likewise being explained by the fact that it was admitted on the trial that the lumber company owns the "holdings of the railway company, the one company being therefore merely a subsidiary, or agent, of the other, and plaintiffs being apparently satisfied with the responsibility of the Lumber Co.

It appears from the evidence that in 1918 defendant was operating a sawmill at Victoria, in the parish of Sabine, and owned and operated (through the railway company) a railroad, connecting that town with "Fisher," about 24 miles distant, in the same parish; that the decedent, Mason Farris, was employed by it as a member of its "steel gang," consisting of 25 or 30 men (under a foreman, named Teasley) which gang had certain functions to discharge in the matter of the maintenance of the road; that for the discharge of those functions they were carried out from Fisher every morning, on a work train, consisting of a locomotive and caboose, which left Fisher at 7 o'clock and ran to the mill, at Victoria, whence its departure in the evenings was timed so as to enable the men to get back to Fisher (or "home," as that place was called) by 6 o'clock in the evenings; that on the afternoon of May 15, 1918, they left Victoria, and at about 20 minutes before 5 o'clock, had reached a point where they stopped to pick up tools which had been left on the side of the road, and then discovered that there was a train on the track, about 100 yards ahead of them, which the witnesses refer to as a wrecked train, and one of the cars of which was derailed; and that the accident here in question happened just after the tools had been taken aboard and the work train had started, and was moving slowly in the direction of the wreck. No witnesses were called to testify as to the immediate circumstances of the accident (probably because no one else was acquainted with them) except Ed Teasley, foreman of the steel gang, C. E. Bradshaw, conductor of the work train, and Ben Williams, engineer in charge of the locomotive by which the killing was done; and the following synopsis from their testimony contains the substance of everything said by them which seems of importance to the questions to be decided, to wit: Ed Teasley, foreman, called by defendant, testifies as follows:

"Q. Just tell what you know of the facts in connection with his (Farris') death. A. I. don't know anything more than before the accident happened. I was standing by the caboose door. The boy was standing by my side, and the gang was loading the tools on. He was helping load them. The last account I had of him, he was putting on the last tools. I made the remark, 'All right; we're through; let's go ahead and see what is ahead.' Time was up to go home. I never seen the boy any more. I walked the distance of 30 feet or more, and gave the signal to the conductor, and said 'All right; let's go;' and the next moment the signal was given, the boy was killed. Q. Did you see him when he went in front of the engine? A. No, sir; I didn't see him. The last account I had of him, he was loading the tools. * * * I saw the last tool put in the caboose, and I turned and hollered, 'All right; let's go.' I walked to the engine before I said, 'Let's go,' and reached up to get on the engine, and said 'Let's go.' I don't know where the boy went from the place where we were loading, till he was killed. I told them to load on. Q. What did you mean by 'load on'? A. I meant for the boys to get on the car. You see my crew was supposed to stay on the car until I ordered them out, and when I got through with them, loading the tools on the outside, I told them to load on -- meaning for them to get back on the car. This boy was in the caboose, and when I ordered the tools loaded on he came out with the rest and helped load the tools. Where he went after that, I couldn't say. * * * Q. Did they [the steel gang] have any instructions not to ride it [the engine]? A. Yes, sir; I told them, the whole crew, not to ride the train any more than the caboose. That was before the boy begun to ride. * * * Q. Ask you whether or not there was sufficient room, or accommodation, in this caboose, for all your men? A. Yes, sir; plenty of room, comfortably. * * * Q. Could he have heard you say 'All right; we'll move on down and see what the trouble is?' A. Yes, sir; he could have put his hand on me. Q. Then you know he could have known there was trouble ahead, with the other train? A. Yes, sir; when there was a train ahead and I got news there was a log car off. Q. Didn't you, at that time -- the time you made the statement, 'We'll move on down and see what's the trouble ahead,' -- believe that you would have business for those boys to do? A. I don't know about that; I told the boys to 'load on, and let's go and see what is ahead.' This is my business. If I need the boys, afterwards, if I get any work. I go back and call for such men and tools as I need to do it. I go ahead and see, and come back myself, and call for such tools as I need Q. Then the boys were still under your direction? A. Yes, sir; until they got to town * * * Q. When does the men's time start? A. Seven o'clock in the morning. Q. Is that when he starts from the mill, on the train? A. Yes, sir. Q. And it stops when he leaves? A. Yes, sir. Q. And it stops when he reaches town, at night? A. Yes, sir."

C. E. Bradshaw, the conductor of the train, testifies that, just before it started from the place where the tools were picked up, he got on the front of the engine, and was seated on the crossbar, on the fireman's side, and that a Negro was seated on the bar on the engineer's side; that he was looking back, waiting for a signal from the foreman of the loading gang, and when he received it he passed it on to the fireman; that the engine was started and was moving very slowly when the boy made his appearance, near the front; that witness thought he was going to try to get on, upon the side, where he was sitting, and that he turned around to take his feet off so that the boy could get on, but that he failed to get on, on that side, and ran across the track, in front of the moving engine, and his foot seemed to slip, "and he failed to get it"; that witness saw him drop, and grabbed him with his right hand; held him until he saw that he could not get him when he turned him loose, and signaled for them to stop the train, which they did as quickly as they could; it was the duty of the work train to carry the men in, in the evenings; the boy was endeavoring to get on the engine when he was killed; the caboose was set aside for the carrying of passengers; it had side doors with steps up to them; doesn't know about Farris having had any warning about riding on the front end of the train; all he knows is that about two weeks before the engineer told witness to tell some Negroes, on the front end of the engine, to get off, and that nobody was allowed to ride on there, and this white boy was on there, and when witness told the Negroes what the engineer had said, witness saw him step aside; the engineer could only have seen the Negroes; witness had taken his position before the train started; doesn't know when the Negro got on; the train carried 25 or 30 workmen; doesn't know the size of the caboose; it was the duty of the train to carry the workmen out in the morning and home at night; the distance from Victoria to Fisher is about 24 miles. We, now quote the witness, literally, as follows:

"When I first saw the boy, he was coming around to where I was sitting on the train. He passed me, turning to catch on. I gave -- I moved my feet so that he could get on, as I thought he was going to try to get on, where I was, and, instead of catching on on that side, he ran across, in front of the engine, and turned out, on the outside of the rail, before he turned to catch. The engine was running very slowly." Redirect: "Q. Did you hear anybody holler, 'All aboard'? A. No, sir; the steel gang foreman gave me the signal, 'All right.' Q. That was all was said? A. When he got ready, he gave me the signal."

The quotation contains the last statement made by the witness.

Ben Williams, the engineer of the train testifies as follows: He saw no part of the...