Lee v. Powell Bros. & Sanders Co., Limited

• Decision Date: 11 April 1910
• Docket Number: 17,726
• Citation: 52 So. 214,126 La. 51
• Parties: LEE v. POWELL BROS. & SANDERS CO., Limited, et al
• Court: Louisiana Supreme Court

52 So. 214

126 La. 51

LEE v. POWELL BROS. & SANDERS CO., Limited, et al

No. 17,726

Supreme Court of Louisiana

April 11, 1910

Appeal from Twelfth Judicial District Court, Parish of Vernon; J. B Lee, Judge.

Action by Nathaniel E. Lee against the Powell Bros. & Sanders Company, Limited, and others. From a judgment for plaintiff defendants appeal. Affirmed.

See also, 122 La. 639, 48 So. 134.

D. M Sholars and James R. Monk, for appellant T. C. Wingate.

McCoy, Moss & Knox and J. Zach Spearing, for appellants Powell Bros. & Sanders Company, Limited.

E. W. Sutherlin and T. C. Barret, for appellee W. B. Williamson.

OPINION

PROVOSTY, J.

Plaintiff, 41 years old, had charge, as engineer, of the engine room of the sawmill of the defendant company. The engine room is on the ground floor, below the main floor, on which are the saw and other machinery. The mandrel of the saw having gotten out of order, the small whistle was blown for the engineer to stop his engine, and the large whistle was blown for the mill to shut down for the day. The foreman thought of sending the mandrel to the neighboring town by a train then shortly due. He went downstairs into the engine room, and directed the plaintiff to come upstairs with him and remove the mandrel for shipment. Plaintiff took up the necessary tools and followed. It was no part of his regular work; which was confined to the engine room. To remove the mandrel he had to stand between the two rails along which runs the heavy car by which the log is held and carried to and from the saw. This log carriage is operated by twin engines, one of which serves for its forward movement, and the other for its backward movement. The log carriage is of the type known as "gunshot," because of the suddenness with which it starts, and the rapidity with which it moves when a full head of steam is turned on. It starts gradually and moves slowly when the steam is fed gradually to the engines. The valve which controls the steam is itself controlled by a lever in the hands of the sawyer. This lever stands out of the floor a few feet from the saw, and is four feet high, and consists of a flat steel bar about half an inch thick and two inches broad, with a wooden handle at the top, and moves back and forth through a slot in the floor. To cut off steam altogether, the lever is put at neutral, and it can be locked there; and all movement on its part, and on the part of the engines and of the log carriage, be made impossible by means of a steel flap hinged to the side of the slot through which the shank of the lever moves back and forth. The locking with this flap is done by lifting the flap with the hand and putting it in position; and the unlocking by lifting it in the same manner and throwing it back. This flap, when entirely, or properly, on, cannot possibly come off, without being lifted off; for it lies horizontally and therefore is held in position by its own weight; and, furthermore, it fits snug on three sides of the shank of the lever. The plaintiff was standing on the track of the log carriage, where, as already stated, he had to stand for doing the work which the foreman had brought him there to do, and was stooping over the saw, with the foreman at his side, when steam got into the engine in some way, and the car started. It started so suddenly and moved so swiftly that before any one could have cried, "Lookout!" it had passed over both men, knocked away the bump posts and shot out of the mill; and, in its course, had flung the foreman to one side, and dragged plaintiff out of the mill. Plaintiff describes his injuries, as follows:

"It knocked me down and I don't know anything else about it, I don't know when it hit me. Q. What injury was inflicted upon you? A. It broke both my legs and crushed them. My hand was badly torn up all over, you might say. My head was also crushed, and the scalp bruised. It was probably two weeks before I knew how bad I was hurt. I never knew anything when they amputated my leg. Q. Your right leg has been amputated? A. Yes, sir. Q. And what injury was done to your hand? A. The flesh on my right forefinger was cut off from the bone. My finger was drawn back and the flesh between my thumb and forefinger was torn. My cheek bone was also bruised, and the bones in both thighs were badly torn up above the break in my leg. Q. Where was the break in your leg? A. In the left leg it was about seven inches above the knee, say. You might say it is half way between my knee and hip joint. Q. And the right leg was amputated just above the knee? A. Yes, sir. Q. Can you walk at all now? A. No, sir; I can't bear any weight on my leg at all."

At the date of the trial -- two years and one month after the injury -- plaintiff was still unable to go about otherwise than in a wheel chair; and the evidence shows that there is little or no hope of his remaining leg ever being of any service to him. It seems the bones will not knit. By a first operation the ends were tied together with catgut. About a year later, the bones not having knit, the ends were sawed off for getting a fresh surface, and the two surfaces tied together with wire; with no better success. The wire has had to be removed. A third or fourth operation might prove successful, but the chance is but slender; and, if it should fail, the leg would have to be amputated. Every movement of the limb, or even touching it, causes pain.

Plaintiff sues for $ 20,000 damages. The jury awarded $ 15,000.

The present appeal is the second in the case. Plaintiff pleads the judgment on the first appeal as res judicata.

Clearly there is no res judicata, since the defendant company was not a party to the first appeal. See the case reported in 122 La. 639, 48 So. 134.

The negligence charged is in the failure of the sawyer to lock the lever, or to lock it properly, and in the imprudence of the foreman of the mill in exposing plaintiff to the danger.

The defenses are that no one can account for the steam getting into the twin engine, and that no presumption of negligence arises from the bare fact itself, because the...