Fluitt v. New Orleans, T. & M. Ry. Co.

• Decision Date: 07 October 1936
• Docket Number: 1620
• Citation: 169 So. 803
• Parties: FLUITT v. NEW ORLEANS, T. & M. RY. CO
• Court: Court of Appeal of Louisiana — District of US

169 So. 803

FLUITT v. NEW ORLEANS, T. & M. RY. CO

No. 1620

Court of Appeal of Louisiana, First Circuit.

October 7, 1936

C. V Pattison and S.W. Plauche, both of Lake Charles, for appellant.

Frank E. Powell, of De Ridder, for appellee.

OPINION

OTT Judge.

Plaintiff filed this suit against the New Orleans, Texas & Mexico Railway Company to recover compensation under the Workmen's Compensation Law of this state (Act No. 20 of 1914, as amended) on account of an injury received by him on May 22, 1933.

He alleges that he was receiving $ 5.28 per day, working six days per week, and he asks for $ 8,000, payable in weekly installments of $ 20 each, together with interest on each installment as it matures, and the additional sum of $ 250 for medical expenses incurred by him on account of said injury.

He avers that his duties were to operate a portable electric crane in the roundhouse of the defendant railroad at De Quincy, La., in connection with which employment he was required to remove heavy objects with said crane about the roundhouse and sometimes about the shop yards; that on the day of the injury plaintiff was instructed to take said crane and pick up an engine tire, weighing about 400 pounds, and bring the tire over and put it down by an engine which was then in the shop for repairs; that, while he was backing said crane out of the roundhouse to get the tire, the crane was struck by a car being pushed through the yards by a locomotive and he was caught between the said car and crane, crushing his body to such an extent that he is totally and permanently disabled to perform work of any reasonable character. He further alleges that the locomotive to which he was instructed to bring the tire was in the shops for repair and was out of service at that time.

By a supplemental petition, plaintiff joined L. W. Baldwin and Guy A. Thompson, trustees appointed by the United States Court for the Eastern District of Missouri, to operate said railroad, and he made the same allegations against these trustees as he had made against the railway company, and prayed for judgment in the same amount against the trustees as against the railroad. On an exception being filed by the railroad company on the ground that it was not operating said railroad when the injury occurred, but that same was being operated by said trustees, the court dismissed the case as to the railway company. As no appeal was taken from that judgment of dismissal, we will only consider the pleadings and facts as they apply to the trustees.

The trustees answered, admitting that they were operating said railroad when plaintiff was injured; they admit that plaintiff was in their employ at the time, and that he was instructed to bring a tire to the locomotive with the electric crane; they also admit that the locomotive to which plaintiff was instructed to bring the tire was in the shop for repairs; they admit that plaintiff received an injury while backing out the said crane, but allege that the injury was caused by his own negligence.

The trustees set up as a special defense that, at the time of the accident, the locomotive to which plaintiff had been instructed to bring said tire was an instrumentality of interstate commerce; that said locomotive was being used exclusively in interstate passenger service on said railroad between Anchorage, La., and Houston, Tex.; that at the time of the accident the said locomotive was in the shop for regular monthly inspection and such running repairs as were necessary; that said locomotive had been put in the shop on May 21, 1933, at the end of a passenger run between the above two points and was destined to return to said service upon completion of said inspection and repairs, and was actually returned to said service on May 23, 1933, the day after the accident. The trustees therefore contend that plaintiff's claim is controlled by the Federal Employers' Liability Act (45 U.S.C. A. §§51-59) instead of the Louisiana Workmen's Compensation Law.

The district judge reached the conclusion that plaintiff's claim is controlled by the federal law and therefore rejected his claim for compensation under the laws of this state. Plaintiff has appealed.

There is little dispute as to the facts on this phase of the case. We find the facts to be about as summarized above from the special defense of the trustees. We find the following admission made by counsel for plaintiff in the record:

"We will admit that engine 387 was a passenger engine, and was engaged in making interstate runs up to May 21, 1933, when it was put in the round house."

"We will admit when it was put back in use it went back into the passenger service on regular passenger runs, and that when it went into the round house, it was destined to return to the same service, after it was inspected and certified for service."

The trial judge makes the following statement as to the facts in his reasons for judgment: "On May 22, 1934, plaintiff was instructed to pick up with his crane an engine tire, and carry it to an engine which was in the shop for regular monthly inspection and whatever repairs were needed. While performing this duty, the crane operated by the plaintiff was struck by a car being pushed through the yard by a locomotive, and plaintiff was crushed between the car and the crane. The locomotive to which the plaintiff was carrying the tire was used by the trustees in interstate commerce, and it was taken into the shop in DeQuincy at noon on May 21, 1934, at the end of an interstate run, and it went out on an interstate run as it was destined to when its inspection and repairs had been completed at 4:30 P. M. on May 23, 1934. The engine in question was a passenger engine, and all passenger trains of the defendant were engaged in interstate commerce." (Should be 1933 instead of 1934.)

We do not find any testimony in the record to support the finding that the crane was struck by a car being pushed through the yards by a locomotive; however, as defendants admit the injury, the exact manner in which it occurred is not material.

To this admission of plaintiff's counsel and the...