Johnson v. Christie

• Citation: 42 So. 421,117 La. 911
• Decision Date: 12 November 1906
• Docket Number: 16,086
• Parties: JOHNSON v. CHRISTIE & LOWE et al
• Court: Louisiana Supreme Court

42 So. 421

117 La. 911

JOHNSON v. CHRISTIE & LOWE et al

No. 16,086

Supreme Court of Louisiana

November 12, 1906

Rehearing Denied December 10, 1906.

Appeal from Civil District Court, Parish of Orleans; George Henry Theard, Judge.

Action by Alex. Johnson against Christie & Lowe and others. Judgment for defendants and plaintiff appeals. Reversed and rendered in favor of plaintiff.

Clegg &amp Quintero and Louis A. Hubert, for appellant.

Rice &amp Montgomery, for appellees.

OPINION

MONROE J.

Statement of the Case.

Plaintiff sues for damages for personal injury received through the alleged negligence of defendants whilst discharging a duty assigned to him as their employe. Defendants deny the negligence imputed to them, and aver that the injury complained of is the result of plaintiff's own want of care with respect to a danger which was, or should have been, known to him. The case presented by the testimony in the record is as follows, to wit: Defendants are contractors, engaged in building the jetties at Southwest Pass (of the Mississippi river), and when the accident out of which the suit arises occurred were receiving large quantities of stone on the bank of the river, above New Orleans, and conveying it thence, in barges, to the scene of their operations. The stone was brought from the quarry in uncovered cars, the beds of which (like wagon beds) consist of the bottoms (or surfaces) of the cars, around the edges of which are erected sides and ends about four feet high, supported by stanchions. In order to facilitate unloading, these sides are so divided that the spaces between the stanchions are practically gates, which, being hinged at the tops, may be made to swing out from the bottoms, and, when closed, are secured by means of clutches, fastened upon iron rods, an inch and a quarter in diameter, which, in turn, are braced along, and a few inches off from, the sides of the cars. The railroad company delivered these cars on its track at a point near the river bank, from which defendants had constructed a spur track, across the bank and the wharf, against which latter the barges were moored, the length of the spur being about 250 or 300 feet, and the method of handling the cars over it being as follows: Defendants had established on the lower side of the spur, about three feet distant from it and about 60 feet from the outer edge of the wharf, a stationary engine, with two drums, around which were wound steel ropes, say seven-eighths of an inch in diameter. One drum (with its rope) was used to pull the loaded cars from the starting point to within a short distance of the engine and give it the momentum necessary to send it on to the outer edge of the wharf, and the other was used to pull the cars, after being unloaded, back from the wharf's edge and give it the momentum necessary to send it into a switch, which branched off from the spur, between the wharf's edge and the main track. In order to accomplish this manoeuvre, so far as the loaded cars were concerned, the steel rope was attached to the iron rod, to which we have referred, at a point near the rear end (the farthest from the river) of the car, by means of a hook fastened to the end of the rope, so that, when the engine was set in motion -- revolving the drum and winding the rope -- the hook found a purchase against the nearest forward stanchion, and the car was carried, by traction, usually at a speed of four or five miles an hour, to a point variously stated at 10, 20, or 30 feet from the engine, at which point it was the duty of the engineer to release the drum and thereby slacken the rope, and it was the duty of a man who stood upon the rod, just behind the hook, to disengage it from the rod, so that, in passing the engine, the car would not be subject to what would otherwise be a reverse strain from the rope which had pulled it, and would be free to proceed with the momentum acquired to its destination, at the edge of the wharf. The space between the side of a car thus handled and the engine was so narrow that the man who released the hook from the rod could not remain in the stooping position necessary to be taken for the discharge of that function, and, possibly because there was scant time for him to assume a safe standing position, was expected, immediately upon removing the hook, to step back behind the end, or to climb on top or to jump off the car; the usual thing being for him to get behind the end of the car. When the car reached its destination, its gates, on either side, were opened, and its load was discharged into wooden boxes placed beside the spur for its reception, which boxes were then lowered into the awaiting barge by means of a derrick, stationed between the barge and the engine, for the accommodation of which the engine had been moved from a position which it, at one time, occupied, and from which it had pulled the cars all the way to the edge of the wharf, thereby rendering unnecessary the flying switch arrangement which we have attempted to describe.

The plaintiff, a Swede, 25 years of age, was employed by defendants as a laborer, and had been working for them for 12 days when he received the injury of which he complains. On the morning of May 19, 1905, a car loaded with stone was pulled down the spur to the engine, but for some reason was not given sufficient momentum to carry it to the edge of the wharf, and had to be pulled back and started over again, and it appears that the foreman spoke rather sharply to, or of the engineer, giving it to be understood that he must do better or quit, so that, when the final attempt was made, at which time the foreman ordered plaintiff to get on the car and let go the hook, it seems probable that more power was applied than usual, and that the engineer was slower in releasing the drum and slacking the rope, the result being that plaintiff was unable to get the hook off the rod, and whilst endeavoring to do so was carried, with the car, past the engine, whereupon, the power being reversed, the hook was suddenly pulled back towards him, and, tearing off one of the clutches (or cleats) on the rod, caught his foot with it in such a way that it was extricated with some difficulty, and was so mashed that it was necessary, on the same day, to perform an amputation behind the toes, and a month or two later to amputate again about the instep, so that eventually almost half of the foot was lost. There is no doubt, and it was conceded in the argument of the case, that the engineer...