Roff v. Summit Lumber Co.

• Decision Date: 17 June 1907
• Docket Number: 16,514
• Citation: 44 So. 302,119 La. 571
• Court: Louisiana Supreme Court
• Parties: ROFF v. SUMMIT LUMBER CO. et al

44 So. 302

119 La. 571

ROFF v. SUMMIT LUMBER CO. et al

No. 16,514

Supreme Court of Louisiana

June 17, 1907

Rehearing Denied June 28, 1907.

Appeal from Fourth Judicial District Court, Parish of Union; Robert Brooks Dawkins, Judge.

Action by Alphin H. Roff against the Summit Lumber Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

William Hall Trigg and Elder & Moore, for appellants.

Preaus & Mathews and Clayton & Hawthorn, for appellee.

NICHOLLS J. MONROE, J., concurs in the decree.

OPINION

NICHOLLS J.

The plaintiff seeks in this action to obtain a judgment in solido against the Summit Lumber Company and the Arkansas Southeastern Railroad Company for the sum of $ 10,000, with interest thereon. As the basis for this demand he alleges: That the Summit Lumber Company and the Southeastern Railroad Company had been for several years, and were then, engaged in the manufacture of lumber at a sawmill plant owned by the said defendants jointly and in common at Randolph, Union parish, La., and in connection therewith they together owned and operated a system of railways, tramways, spurs, and switches extending from their said sawmill for several miles into the interior of Union parish, and covering that territory from which defendants obtained their supplies of logs and timber, which logs and timbers after being cut were hauled and carried by means of defendants' locomotive engines and log trains over their said lines of railway and tramway to their sawmill at Randolph, La.

That the two defendants above named, though nominally distinct concerns, were in fact under the same management, had the same stockholders, officers, agents, and employes, and to all intents and purposes constituted one and the same corporation. That on the 8th day of October, 1905, petitioner was employed by the defendants aforesaid as night watchman and hostler, and as such it was part of his duty to board the incoming locomotive engines of the defendants, to assist the engineers in placing said engines on their appropriate side tracks, to open and close the different switches for that purpose, to take charge of said engines when so placed on the side tracks, to clean up same and give them necessary attention during the night, and generally to perform the duties of night watchman hostler and general utility man for said defendants.

That while employed by defendants as night watchman and hostler, as aforesaid, and on the day above mentioned, it became his duty in the course of his said employment to assist the regular engineer in placing the locomotive engine of defendants on their side tracks at or near Bardulph, Union parish, La., and, while said locomotive was moving at the rate of about four miles an hour, it became necessary in the discharge of petitioner's duty as aforesaid for him to alight from the said locomotive engine, and throw the switch, for the purpose of running said engine into the siding to which it was destined.

That, by reason of the old, defective, leaky, and unfit condition of the tank on the said locomotive engine of defendants, water and steam had escaped therefrom upon the steps of said locomotive and had rendered it extremely slippery and difficult to descend, which condition was at that time unknown to petitioner, and petitioner, while attempting to alight from said engine, and while carefully descending said steps, slipped, and in the effort to recover his balance his heel was caught in the cogs of the said locomotive engine, resulting in a violent, severe, and painful mangling and tearing of petitioner's heel, which injuries have left petitioner a permanent cripple and sufferer for life.

That the cogs in which petitioner's heel was caught and mangled was improperly constructed, and was uncovered, exposed, and dangerous, and was not screened by any fender or other covering such as was usual and necessary on locomotive engines of that kind, and which, if present, would have prevented the injury which befell petitioner.

That petitioner in alighting from said engine did so in a careful manner in the customary way, and as his duties required, and he would have alighted therefrom in safety but for the defective, leaky, and unfit condition of the engine tank aforesaid, the consequent slippery and dangerous condition of the steps of said locomotive, and the unscreened and dangerously exposed condition of the cogs in which petitioner's heel was caught.

That the injuries suffered as above described were due to no fault or neglect on the part of petitioner, but were caused wholly by the gross and wanton negligence, carelessness, and recklessness of defendants in failing to keep their said locomotive engine in proper repair, and in creating and permitting the improper and dangerous condition of the aforesaid tank, steps, and cogs on said locomotive.

That within a few days after petitioner sustained the injuries aforesaid the defendants caused the tank on their locomotive engine to be repaired, and placed a strong and solid covering over the cogs in which petitioner's heel was caught, securely screening them from all possible contact, and rendering impossible such injuries as that described, all of which precautions could and should have been taken long before the injury to petitioner, and the neglect of which by defendants was gross negligence. That, as a result of the injuries sustained by him, petitioner was confined to his bed for four or five months, unable to get up or to walk. That during this time he suffered extreme pain and physical agony, intensified by a process of skin grafting made necessary by the torn and injured condition of his heel. That petitioner is informed and believes, and, so believing, avers, that he will never recover the use of the injured member, and that he will never be entirely free from pain as a result of his injuries, and that the consciousness of his condition has caused, and still causes, petitioner great mental pain, anguish, and distress.

That at the time of the aforesaid accident petitioner was earning $ 54 a month, straight time. That, as a result of the injuries received, he was and is incapacitated for work, and is unable to perform any kind of physical labor, which is his only means of support and by which means he formerly earned a livelihood, and that petitioner is informed and believes, and, so believing, avers, that he will never again be able to perform such labor and earn his livelihood as before.

That, by reason of petitioner's injuries aforesaid and the resulting physical pain, discomfort, inconvenience, mental anguish, and suffering, he has been damaged in the sum of $ 5,000 and in expense for medical attendance, loss of time and wages, and in the permanent disability to perform physical labor he has been damaged in the further sum of $ 5,000, making a total of $ 10,000 as above alleged. Petitioner avers that the aforesaid indebtedness is due and has been demanded without avail.

In view of the premises, he prays for service hereof, and citation according to law on the said Summit Lumber Company and on the said Arkansas Southern Railway, and on each of them, and that after due proceedings had there be judgment in favor of petitioner and against the said Summit Lumber Company and against the said Arkansas Southern Railroad Company, in solido, for and in the full sum of $ 10,000 with per cent. per annum interest thereon from judicial demand until paid, and for all costs of this suit. And further for full, general, and equitable relief.

The defendants answered, pleading the general issue. Further answering, they averred that whatever injury plaintiff received it was by his own fault and negligence, and defendants were in no way responsible for the same.

The district court rendered judgment in favor of plaintiff against the Summit Lumber Company for $ 3,500, with legal interest from the 21st of August, 1906, until paid.

That company appealed. Appellee has answered the appeal, praying that the judgment be amended increasing the amount awarded to him to $ 7,500.

Plaintiff urges:

(1) It is the duty of the master to an employe to make use of reasonably safe appliances. Uncovered cogs of a "shay" engine, combined with a leaky tank, which renders the steps used in ascending and descending from the cab of the engine slippery, are not safe, and the master who permits them to be thus -- becoming dangerous -- is guilty of gross negligence. Stucke v. Railroad Co., 50 La.Ann. 172, 23 So. 342; Gualden v. Railroad Co., 106 La. 409, 30 So. 889; Ingham v. Honor, 113 La. 1040, 37 So. 963; Williams v. Lumber Co., 114 La. 805, 38 So. 567; Moses v. Lumber Co., 114 La. 933, 38 So. 684; Johnson v. Christie & Long, 117 La. 911, 42 So. 421.

(2) Assumption of risk, like the plea of contributory negligence, must be specially urged, and cannot be availed of under the general issue. Especially is this true with reference to the extraordinary risks which are shown to have been created by the master in this case, and which by his employment plaintiff did not assume. Buechner v. N. O., 112 La. 599, 36 So. 603, 66 L.R.A. 334, 104 Am. St. Rep. 455; Labatt on Mast. & Servant, § 841b.

(3) A servant who performs a duty just as he had seen others perform it, and in which men experienced in that kind of work declare is the ordinary and proper method of doing so, is not guilty of contributory negligence. Potts v. Railroad Co., 110 La. 1, 34 So. 103, 98 Am. St. Rep. 452.

Defendant urges:

That the injury which plaintiff received was one which was ordinarily and naturally incident to his employment, and was assumed by him. Carey v. Sellers Co., 41 La.Ann 500, 6 So. 813; Pollich v. Sellers, 42 La.Ann. 623, 7 So. 786; Sauer v. Oil Camp, 43 La.Ann. 699, 9...