Myers v. Louisiana Ry. & Nav. Co

• Decision Date: 12 February 1917
• Docket Number: 22127
• Citation: 74 So. 256,140 La. 937
• Parties: MYERS v. LOUISIANA RY. & NAV. CO
• Court: Louisiana Supreme Court

74 So. 256

140 La. 937

MYERS v. LOUISIANA RY. & NAV. CO

No. 22127

Supreme Court of Louisiana

February 12, 1917

Editorial Note:

Until expiration of the fourteen day rehearing period this decision is not final.

Appeal from Thirteenth Judicial District Court, Parish of Rapides W. F. Blackman, Judge. Suit by George G. Myers against the Louisiana Railway & Navigation Company for compensation under the Employers' Liability Act. Judgment for plaintiff, and defendant appeals.

Affirmed.

SYLLABUS

(Syllabus by Editorial Staff.)

1. Master and Servant 373 -- Injuries to Servant -- Workmen's Compensation Act -- "Injuries Arising out of Employment."

Where a carpenter employed as a railroad car repairer, while returning along the most practicable route to his work shed after taking measurements on the car for which he was preparing a piece of timber, was knocked down and injured by a swinging door of a car on the adjoining track blowing against him as he was passing, his injuries arose out of his employment within Employers' Liability Act (Act No. 20 of 1914), since the taking of the measurements was as much working on the car as the nailing of a plank on it would have been.

2. Master and Servant 371 -- Injuries to Servant -- Workmen's Compensation Act -- Cause of Injury.

The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment. 157L.1033, 152L.798, 140L.945, 156L.874, 154L.1094

3. Master and Servant 361 -- Injuries to Servant -- Workmen's Compensation Act -- Hazardous Employment.

The employment of a carpenter engaged in repairing railroad cars is hazardous, since it is in and about railroad cars and tracks.

4. Master and Servant 385(5) -- Injuries to Servant -- Workmen's Compensation Act -- "Total Disability."

Under Act No. 20 of 1914, § 8(d), allowing compensation to an injured workman for injuries producing permanent total disability to do work of any character, the permanent disability of a workman who had lost the use of one leg through breaking the hip bone, from following his regular trade, is not a total disability, since there are many lines of work open to a man in that condition.

[Ed. Note. -- For other definitions, see Words and Phrases, First and Second Series, Total Disability.]

5. Master and Servant 412 -- Injuries to Servant -- Workmen's Compensation Act -- Total Disability -- Broken Hip.

Where an illiterate carpenter 60 years of age had his hip bone broken, as a result of which he had been unable to perform any work up to the time of the trial one year later, and had never been able to follow his trade, since he could do no climbing, and could not even walk without a crutch or at least a cane, and it is possible that he would never be able to secure employment in any other line of work because of his inability to do any but manual work and of his advanced age, the finding of the trial court that his disability was total under Act No. 20 of 1914, § 8(d), allowing compensation for injury producing permanent total disability to do work of any character, rather than partial under section 8(c), allowing compensation for permanent partial disability amounting to one-half the difference between the wages before the injury and those he was able to earn thereafter, will not be disturbed, especially since there is no basis to determine the measure of compensation under the latter section, where the employe has been unable to do any work up to the time of the trial.

Thornton & Thornton, of Alexandria, and Wise, Randolph, Rendall & Freyer, of Shreveport, for appellant.

Blackman, Overton & Dawkins, of Alexandria, for appellee.

OPINION

PROVOSTY, J.

Plaintiff has brought this suit under Act No. 20, p. 44, of 1914, known as the Employers' Liability Act, for injuries received while in the employ of the defendant company as a carpenter. The work he had in hand was the repairing of a camp car, which stood upon one of the repair tracks in the railroad yard of the defendant company in the city of Alexandria. He had been working under a shed about 300 feet away from this car upon a piece of timber to be fitted to that end of the car farthest from this shed, and for taking some necessary measurements had gone to this far end of the car, and, in doing so, had passed between the car and a coal car which stood upon another repair track; the space between the two cars being about 6 feet. After he had taken the measurements, he had gone to the other side of the coal car to a shed within a few feet of the coal car to restore to its owner a saw which on his way he had picked up where its owner had left, and probably forgotten, it. And as he was retracing his steps, passing again between the two cars, the door of the camp car, which swung like an ordinary door, instead of sliding as car doors generally do, blew to in a gust of wind, and struck him, and threw him against the coal car, inflicting the injury for which he brings this suit. The route followed by him in thus going to take and returning from taking these measurements was not only the most direct and convenient, but was, in fact, the only available, unless by making a circuit which no one would have thought of making.

The injuries for which recovery may be had under the said Employers' Liability Act must have arisen "out of and in the course of" the employment; and the first contention of defendant is that while the injury in this case arose "in the course of" the employment, it did not arise "out of" it.

This phrase, "out of and in the course of the employment," which in itself appears to be clear enough has given occasion in its interpretation to a great many decisions, both in this country and in England; for it occurs in the workmen's compensation statute of England, which is the prototype of our American statutes upon the same subject, including our said Act No. 20 of 1914. The courts have had no difficulty in agreeing that "out of" does not mean the same thing as "in the course of," but means something more; that an injury may have been received "in the course of" the employment, and yet not "out of" it. Nor has any difficulty been experienced in ascertaining when an injury is to be considered as having arisen "in the course of" the employment; the difficulty has come in applying to concrete cases the phrase "out of." Before proceeding to the task of applying this phrase to the facts of the present case, it may be well to reproduce some of the expressions to be found in the books as to its meaning.

From an elaborate and apparently exhaustive note in L. R. A. 1916A, p. 41, we take the following:

"It may be stated generally that the phrase 'out of and in the course of the employment' embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake, and which is calculated to further, directly or indirectly, the master's business. * * *

"The risk must be one peculiarly incident to the employment, and not one incurred by every one, whether in the employment or not. Where an injury occurs upon a street from causes to which all persons upon the street are exposed, it cannot be said to arise out of the employment of the injured workman. But it has been said that the criterion is not that other persons are exposed to the same danger; but, rather, that the employment renders the workman peculiarly subject to the danger. * * *

"In order that the injury may be one arising out of the employment, the workman must be acting within the scope of his employment at the time of his injury. * * *"

From Labatt on Master and Servant, p. 5419, we take the following:

"This phrase (out of and in the course of the employment) embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the master's business."

One of the cases cited in support of this text is where a collier was injured by the slamming of an iron gate, through which he was obliged to pass, on the premises of the employer, in the course of his employment.

In Bryant v. Fissell, 84 N. J. Law, 72, 86 A. 458, the Supreme Court of New Jersey said that the accident arises out of the employment when there is a connection between the conditions under which the work is required to be performed and the resulting injury. In McNicol et al. v. Employers' Liability Ass'n Corp., 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 306, the Supreme Court of Massachusetts said:

"It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It arises 'out of' the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment. * * * But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative...