Peterson v. L. R. & N. Co.

• Decision Date: 21 January 1929
• Docket Number: 11,664
• Citation: 119 So. 759,9 La.App. 714
• Parties: PETERSON v. L. R. & N. CO
• Court: Court of Appeal of Louisiana — District of US

119 So. 759

9 La.App. 714

PETERSON v. L. R. & N. CO

No. 11,664

Court of Appeals of Louisiana, Orleans

January 21, 1929

Appeal from the Twenty-fourth Judicial District Court in and for the Parish of Jefferson. Hon. L. Robert Rivarde, Judge.

Action by Henry Peterson, tutor of the minor, Vat Peterson, against Louisiana Railway & Navigation Company.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

Paul W Sompayrac and A. T. Higgins, of New Orleans, attorneys for plaintiff, appellant.

Milling Godchaux, Saal & Milling, of New Orleans, attorneys for defendant, appellee.

OPINION

JONES J.

This suit was brought by Henry Peterson, tutor of his minor brother, Vat Peterson, to recover either amount due under the Compensation Law of Louisiana, or, in the alternative, $ 6,000.00 under the Federal Employer's Liability Act (45 U.S.C. A. 51-59).

Petitioner, the duly appointed tutor of his brother, alleges as follows:

About 10:00 o'clock a. m., on October 30, 1926, Vat, who was working for the defendant in the railroad yard near Shrewsbury, in Jefferson Parish, went under a box car in a string of eighteen cars on the fourth track from the main line to answer a call of nature, as no adequate place had been furnished; without warning, without signals, and without observing any precautions, defendant backed an engine and moved the box cars, causing the wheels of one to run over the leg of petitioner, thereby necessitating the amputation of his foot; at the time the minor was earning $ 13.80 a week and was entitled, under the Compensation Law of the state, to 65 per cent of his weekly wages for one hundred and twenty-five weeks.

In the alternative, plaintiff alleged that the defendant was then operating in Louisiana and Texas a railway, and that, should the facts of this case make the laws of Congress controlling, the said facts were solely within the knowledge of defendant, but all allegations as to negligence stated above were affirmed as to this liability and a lump sum of $ 6,000.00 for loss of foot was claimed. Contributory negligence was denied and defendant was charged with entire responsibility for the accident in negligently failing to keep a lookout and to give any warning before striking the cut of box cars.

In its answer, defendant admitted the accident, but denied all negligence, and averred that the rights of plaintiff were governed by the federal law.

The trial court, after deciding that the Compensation Law of Louisiana had no application, dismissed the suit on the ground that plaintiff had failed to prove negligence, an essential under the Federal Employer's Liability Act.

The evidence shows that the yard of the defendant company, which was over 4,000 feet long, consisted of the main lines and five switch tracks, which ran the entire length of the yard, but were connected at each end. Plaintiff, an ignorant colored boy, was one of a gang of five laborers who were putting new cross-ties under switch track No. 3 at a point near the south end of the yard. About 10:00 a.m., October 30, 1926, while the rest of the gang of laborers were working near the north end on track No. 3, and switching engines were still shifting cars in the north end of the yard, and a string of eighteen box cars were standing on track No. 4, which was just east of track No. 3, Peterson, without asking permission of his boss, or advising his purpose, left his gang, walked for a block toward the north end of the yard and hid himself under the fourth car from the south end of the string of eighteen box cars to answer a call of nature.

He says that he was in no hurry and that it had been his custom to go into the woods for this purpose and that he had never gone under a box car before; he knew the switching was going on in the yard and that he was running a risk by going under the car, but failed to advise anyone.

Thomas and Doherty, both employees of the railroad company, testified that he had ample opportunity to go into the woods or weeds on either side of the yard, where it was the general custom to go, and the condition of the yard, as shown in a photograph which was taken within one week after the accident, seems to confirm this testimony. Furthermore, the fact that the boy admits walking north half a block tends to show that he could have gone around the end of the cars and reached the woods east of the yard more promptly. Track No. 4, on which the box car was standing at the time that the boy's foot was cut off, was used indiscriminately with the other switch tracks in the yard for making up trains, one-half of which moved in interstate commerce and one-half in intrastate commerce. It had been used for that purpose just prior to the accident and was to be used for such purpose immediately after the accident.

It has been repeatedly held that the State Compensation statute has no application if the federal statute applies to an injured railroad employee.

N. Y. C. Ry. Co. vs. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045; L.R.A. 1918C, 439 Ann. Cas. 1917D, 1139; St. Louis (etc.) R. R. Co. vs. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129; Sec. 30, Act 20 of 1914, as amended; Hamilton vs. L. R. & N. Co., 162 La. 841, 111 So. 184.

The Supreme Court of the United States, in its decisions governing injuries to employees of railroad companies, has developed two general conclusions: If the injury occurs to one engaged in the operation or movement of rolling stock, the liability under the Federal Employer's Act depends upon whether the movement at the moment of the accident in which the injured person was engaged was wholly intrastate or interstate. This conclusion is illustrated by the following cases: C. B. & Q. R. R. Co. vs. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941; Dupuis vs. La. Ry. & Nav. Co., 155 La. 953, 99 So. 709.

If, on the other hand, the injured employee was engaged at the time of the accident in the repair or construction of some facility of commerce, such as tracks, switches, bridges, etc., which facility is used both for interstate and intrastate commerce, then the employment is so closely related to interstate commerce as to bring it within the exclusive dominion of the federal act. This latter principle is illustrated by the leading case of Pedersen vs. D. L. & W. R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, in which case the defendant was engaged in operating a railroad in interstate commerce and intrastate commerce. The deceased was a workman employed by defendant as a member of a repair gang. At the time of the injury the deceased was carrying from a tool house to a bridge, which was to be repaired, some bolts and rivets to be used the following day in repairing a girder of the bridge. The repairs had not yet been commenced. Over this bridge there regularly moved cars in both interstate and intrastate commerce. While the deceased was carrying the bolts he was run into and injured by an intrastate passenger train of the defendant. The Court held that the deceased's work was so closely related to interstate commerce as to be in legal contemplation a part of it, and that the only right of recovery existed under the Federal Act. The Court said:

"Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with...