McGinn v. McCormick

• Decision Date: 17 November 1902
• Docket Number: 14,370
• Citation: 33 So. 382,109 La. 396
• Court: Louisiana Supreme Court
• Parties: McGINN v. McCORMICK

33 So. 382

109 La. 396

McGINN v. McCORMICK

No. 14,370

Supreme Court of Louisiana

November 17, 1902

Rehearing denied January 19, 1903.

Appeal from district court, parish of Madison; Francis Xavier Ransdell, Judge.

Action by Mike McGinn against J. H. McCormick, receiver of the Vicksburg, Shreveport & Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Stubbs & Russell, for appellant.

Magruder Bryson & Dabney and W. M. Murphey, for appellee.

OPINION

MONROE, J.

Statement of the Case.

The plaintiff sues to recover damages for personal injuries alleged to have been sustained by him through the negligence of the defendant. The answer is a general denial, coupled with an averment that the accident by which the plaintiff claims to have been injured was caused solely by his own negligence. The case was tried without a jury, and there was judgment for the plaintiff in the sum of $ 1,000, from which the defendant has appealed; and the plaintiff answers, praying for an increase in the amount allowed.

The facts established by the evidence are as follows: The plaintiff was employed by defendant, and made foreman of an extra gang of laborers assigned to work upon section 4 of its road, in the parish of Madison; the foreman of the regular gang in charge of that section being F. D. Whatley, but the two men, with their gangs, being independent of each other. At midday upon the 4th of August, 1900, the plaintiff, with his gang, having been at work about a mile or a mile and a half west of Tallulah, and Whatley, with his gang, having been at work about a mile still farther west, both men started upon hand cars to go to Whatley's residence, at or near Tallulah; the plaintiff's car taking the track about 300 yards ahead of the other, -- a circumstance that was observed by Whatley. The speed of the cars was approximately eight miles an hour, but the rear car appears to have gained upon the other, so that the distance between them just prior to the accident from which this suit arises had been considerably reduced. In that situation, the plaintiff discovered on the track, about 90 feet in front of his moving car, an obstruction in the shape of two lumps of gravel conglomerate, hard enough "to break with a sledge," and dangerous for him to have attempted to run over, and he raised his hand as a signal to his men to stop the car, which they did, and it was almost immediately run into by the car behind; the concussion throwing the plaintiff within reach of the lever of his own car, which was thereby put in motion and came down on his back, inflicting serious injuries. At the moment when it became necessary for the plaintiff to stop his car, the other car was between 90 and 180 feet behind, those being the extremes as stated by different witnesses; but Whatley, whose body was moving up and down with the lever that he was operating, did not see the plaintiff's signal, which in fact was intended only for his men, and does not seem to have become aware of the emergency with which he was confronted until the plaintiff's car had been actually stopped, at which time his car was only 60 feet behind. His testimony is not altogether clear upon this point, however, and leaves upon the mind the impression that he may have observed the slowing down of the plaintiff's car at a greater distance, and this impression is somewhat strengthened by the testimony of others. Be that as it may, it appears that the car that Whatley was using had been repaired in the defendant's shops, and had been sent to him, about a fortnight before, with a spring that had to be compressed by foot pressure in using the brake, but which, either because of its pattern or stiffness, prevented the effective application of the brake or brake shoe to the wheels of the car, so that, notwithstanding the best efforts of himself and of his men, instead of stopping his car, as they would otherwise have done, they had only succeeded in reducing the speed to about four miles an hour when the collision occurred.

It is abundantly established that but for this trouble with the brake the accident would have been averted, and it is also made clear that, if Whatley had been more prudent in the matter of the maintenance of the distance between the two cars whilst they were in motion, it would have been averted, notwithstanding the trouble with the brake; and it is conceded that Whatley had discovered the defect in the brake apparatus when he first used the car after its receipt from the shop, though, in the face of the plaintiff's denial, the evidence does not show that he had made that discovery.

It is shown to be a rule of the company that the men and foremen are to take their dinners with them when working at points more than a mile away from their camps or section houses, and whilst the plaintiff, who had been working, perhaps, a mile and a half away, admits that he was going to dinner, and explains that he had started out so early in the morning that "the lady" had been unable to prepare it for him to take along, Whatley, who had been working a mile farther away, still, states that he was going in for water and ice, but that he knew that he would get his dinner.

When the accident occurred, the plaintiff was seated upon a small box, resting unsecured upon the front part of the floor or platform of the car; and an attempt was made to prove the existence of a rule of the company, brought to the knowledge of the plaintiff before the accident, prohibiting the use of such boxes, and requiring foremen to use seats so secured as to prevent their moving either backward or forward. It does not appear, however, that the cars furnished by the company are provided with such seats, or that the plaintiff was furnished with either the materials or tools with which to make one; nor is the evidence relied on sufficient to establish the existence of the rule referred to, and still less that it was communicated to the plaintiff before the accident. Beyond this, it is not shown, and it is not likely that the accident would have been averted by the use of the fixed seat, since the plaintiff would in all probability have been thrown backward, as the result of the sudden driving of the car from beneath him, even though the seat had remained in position. The effect of the blow received by ...