Lemee v. Texas & P. Ry. Co

Decision Date16 April 1917
Docket Number20825
Citation75 So. 676,141 La. 769
PartiesLEMEE v. TEXAS & P. RY. CO
CourtLouisiana Supreme Court

Rehearing Denied June 11, 1917

SYLLABUS

(Syllabus by the Court.)

The Safety Appliance Acts of Congress of March 2, 1893, c. 196 27 Stat. 531 (U. S. Comp. St. 1916, §§ 8605-8612), March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. 1916, §§ 8613-8615), and April 14, 1910, c. 160, 36 Stat. 298 (U. S. Comp. St. 1916, §§ 8617-8623) absolutely require handholds above footboards, and railroads will not be permitted to substitute for them uncoupling or operative levers.

A violation of the Safety Appliance Acts of Congress constitutes negligence per se, on the part of the railroad; and in such a case contributory negligence on the part of the injured employe is excluded from consideration.

Whether a violation of the Safety Appliance Acts of Congress in not furnishing handholds was the proximate cause of the death of a switchman, thrown from the running board at night, is a question of fact, to be determined from all the probabilities and circumstances of the case.

The Safety Appliance Acts of Congress embrace all locomotives, cars, and similar vehicles used on any railroad which is a highway of interstate commerce.

Howe, Fenner, Spencer & Cocke, of New Orleans, and Wm. H. Peterman, of Alexandria, for appellant.

Robert P. & John R. Hunter, of Alexandria, C. H. McCain, of Colfax, and Robert A. Hunter, of Shreveport, for appellee.

OPINION

LAND, J.

This is a suit by the widow of Joseph G. Lemee against the defendant company for damages for his suffering and death, caused by his being run over by a locomotive of the defendant in its railroad yards at Boyce, La.

Plaintiff alleged that her late husband was employed by the defendant as night switchman, and while engaged in the performance of his duties on the evening of April 5, 1913, was run over as above stated, and was fatally injured, living about one hour after the accident, and suffering great pain and anguish before his death.

Plaintiff further alleged that at the time of the accident the deceased was riding upon the footboard of an engine which was not properly equipped with safety appliances for the protection of the workman; that the engine was engaged in switching a 'bad order' box car; that the yards at Boyce were not lighted; that the track was in bad condition; and that the proximate cause of the accident was due to the defective appliances on said engine and the darkness of the railroad yards.

The answer admitted the employment, accident, and death, but specially denied the alleged defective condition of the defendant's locomotive or cars, and that the railroad yards were not sufficiently lighted, and that the fatal injury to plaintiff's husband was the result of negligence on the part of the defendant or any of its servants or employes, or resulted from the negligent management or operation of its locomotive or cars, or from the kind of equipment used at the time said injuries were sustained, but on the contrary averred that:

'Said injuries were either the result of the sole or contributory negligence of the plaintiff's husband, or were due to an unavoidable accident, the cause of which is not attributable to respondent, and for which it is not liable in law.'

The cause was tried before the court, without a jury, and judgment was rendered in favor of the plaintiff for the sum of $ 10,000, with costs.

The defendant has appealed.

The evidence, consisting largely of expressions of opinion, is too voluminous for condensation within reasonable limits. We will, however, endeavor to briefly state the material facts, which seem to be established by the evidence.

Lemee, the deceased, was employed as a night switchman at Boyce, La., the division point on defendant's line of railroad between the city of New Orleans and Marshall, Tex.

A good deal of switching was required in the yards of the company at that point.

On the evening in question orders were given to the night switching crew to move a 'bad order' car from one point to another in the yards. The engine assigned for that purpose was not a regular switch engine, but a road locomotive which had been altered to serve the purposes of a switch engine. Lemee and Carter, another switchman, were riding on the rear footboard between the box car and the engine.

After going a short distance, Wilson, the engineer, began to slow down, when looking back he saw Lemee, on the end of the footboard, with his lantern waving the go ahead signal, and then he saw the light go out.

At that very moment Lemee must have fallen from the footboard beneath the wheels of the car. Strange to relate, Carter who was standing on the other end of the footboard did not see Lemee fall. The engineer, hearing nothing further from Lemee, stopped the engine, and returned to find his mangled body near the track.

All switch engines are constructed with handholds above the footboards. The locomotive in question had no handhold over the footboard of the tender. Regular switch engines have sloping tanks and are equipped with headlights at both ends, the rear light being placed in the middle of the slope 'so,' as expressed by one of the witnesses, 'the engineer can see the switchman, and the man can see the car they are going to, and so they can see everywhere.'

The locomotive in question had no rear headlight, and its tank was so high that the engineer could not see the switchman and vice versa.

The locomotive in...

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5 cases
  • Lipscomb v. Standard Highway Co., Inc
    • United States
    • Court of Appeal of Louisiana — District of US
    • October 10, 1929
    ...of the truck, and that he, plaintiff, was not guilty of any negligence which created or aided in the accident." In Lemee vs. T. & P. Railroad Co., 141 La. 769, 75 So. 676, the court considered and applied the Safety Appliance Act Congress. In that case it was held that the violation of the ......
  • Flores v. Steeg Printing & Publishing Co.
    • United States
    • Louisiana Supreme Court
    • February 25, 1918
    ... ... was judgment for plaintiff, as tutrix of her minor son ... In the ... case of Lemee v. Texas & Pacific Ry. Co., 141 La ... 769, 75 So. 676, which involved the application of the safety ... appliance act, it was held that the ... ...
  • Tolle v. Higgins Industries
    • United States
    • Louisiana Supreme Court
    • May 26, 1947
    ... ... His widow was awarded $10,000 damages. A like amount ... was allowed the widow of a night watchman killed by a ... locomotive in the case of Lemee v. Texas & P. R. Co., 141 ... La. 769, 75 So. 676. In the case of Feely v. National Packing ... Co., Ltd., 141 La. 903, 75 So. 837, the widow [212 ... ...
  • State v. Vogt
    • United States
    • Louisiana Supreme Court
    • April 16, 1917
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