Lewis v. Texas & P. Ry. Co

• Court: Louisiana Supreme Court
• Writing for the Court: SOMMERVILLE, J.
• Citation: Lewis v. Texas & P. Ry. Co, 83 So. 535, 146 La. 227 (La. 1920)
• Decision Date: 05 January 1920
• Docket Number: 23293
• Parties: LEWIS v. TEXAS & P. RY. CO

83 So. 535

146 La. 227

LEWIS v. TEXAS & P. RY. CO

No. 23293

Supreme Court of Louisiana

January 5, 1920

Original Opinion of June 30, 1919, Reported at 146 La. 227.

SOMMERVILLE J. O'NIEL and PROVOSTY, JJ., dissenting.

OPINION On Rehearing.

SOMMERVILLE J.

In support of its application for a rehearing, defendant says that the court "have exonerated the defendant from all of the charges of negligence, except the charge that the car was unprovided with a headlight." In this the defendant has erred. The lack of a headlight was, in the opinion of the court, sufficient negligence to warrant an affirmance of the judgment of the district court, and the other acts of negligence alleged and proved were not considered at length.

The record contains proof of great negligence on the part of the defendant company in the management, operating, and equipment of the motorcar used in transporting its bridge gang to and from the point of work. Defendant company required the bridge gang, of which the deceased, Lewis, was a member, to board on its boarding cars at Melville. From that point the gang, under the direction of the defendant's foreman, departed each morning for the point of work, in an open motorcar with a trailer attached. At the time of the accident, the evidence shows that the car while returning to Melville was filled with 10 or 11 workmen and a large amount of loose tools and rope; that the car was without handholds, railing, or other means of protection in case of a sudden stop or collision. This was negligence on the part of the defendant company; and, together with other acts of negligence, including the want of a proper headlight, were the proximate causes of the death of Lewis. Again, nightfall was approaching, and darkness was certain to overtake the crew before it reached Melville, and the foreman knew that to be the case; yet, on its homeward journey he left the car, and placed it in charge of an inexperienced youth, weighing about 100 pounds, and some 17 years of age. This was another act of negligence. The car was started on its journey homeward, without any headlight whatever to show obstructions that might be on the track after nightfall. When the accident occurred the youth who had been placed in charge of the car was unable to see the track before him for more than a few feet.

Again, this car was traveling at a rate of 30 or 40 miles an hour, and at such speed as would prevent its being stopped within 150 or 200 feet; and at a place where the employes of the defendant knew that obstructions were likely to be on the track. A speed of 12 miles per hour in daylight would have been sufficient for this motor car to have made.

All of these acts of negligence, taken together, were the proximate causes of the accident to the deceased which resulted in his death.

This action is founded on the federal Employers' Liability Act of Congress of April 22, 1908 (chapter 149, 35 Stats. 65), as amended by act of April 5, 1910 (chapter 143, 36 Stats. 291 [U.S. Comp. St. §§ 8657-8665]).

Plaintiff, as the widow of Charles Lewis, in her own behalf and on behalf of her minor child, recovered a judgment in the district court for damages because of the death of Lewis while employed by the defendant in interstate commerce. The judgment was for $ 17,500. On the former hearing this judgment was affirmed, and a rehearing was granted principally as to the quantum of damages to be allowed.

Defendant has argued on this hearing that the deceased assumed the risks of his employment, and that therefore his widow cannot recover damages. The federal Employers' Liability Act provides for the assumption of "extraordinary risks incident to his (employ's) employment," but the record does not disclose that Lewis assumed any extraordinary risks in boarding the motorcar, under the direction of his employers, for the purpose of being taken back to the boarding cars of the defendant company, where he was required to return each night. But defendant failed to plead assumption of risk on the part of Lewis; and, as this is a special defense, which has to be specially pleaded, it cannot be heard on the trial of the case at this time particularly on an ...