Simmons v. Louisiana Ry. & Nav. Co

• Decision Date: 04 October 1921
• Docket Number: 23884
• Citation: 149 La. 686,90 So. 24
• Parties: SIMMONS v. LOUISIANA RY. & NAV CO.
• Court: Louisiana Supreme Court

90 So. 24

149 La. 686

SIMMONS v. LOUISIANA RY. & NAV CO.

No. 23884

Supreme Court of Louisiana

October 4, 1921

Rehearing Denied October 31, 1921

Appeal from Thirteenth Judicial District Court, Parish of Rapides James Andrews, Judge.

Action by Eliza Simmons, administratrix of the estate of R. P Simmons, deceased, in her own behalf and that of their minor children, against the Louisiana Railway & Navigation Company. Judgment for the plaintiff, and both plaintiff and defendant appeal.

Judgment affirmed in so far as it rejects defendant's demand for dismissal of suit, and, as respects plaintiff's demand, remanded with leave to plaintiff to offer such further evidence as may be deemed necessary to determine the amount of damages in the manner indicated in the opinion.

Gus A. Voltz and Hakenyos, Hunter & Scott, all of Alexandria, for plaintiff.

Thornton, Gist & Richey, of Alexandria, and Wise, Randolph, Rendall & Freyer, of Shreveport, for defendant.

OPINION

Statement of the Case.

MONROE C. J.

Plaintiff brings this suit, under the federal Employers' Liability Act (U.S. Comp. St. §§ 8657-8665), in her own behalf and in behalf of two minor children, issue of her marriage with R. P. Simmons, who lost his life, through the negligence, as she alleges, of defendant or its agents, while in the discharge of functions for which he was employed by defendant.

The total amount claimed is $ 30,000; the total amount awarded by the judge a quo was $ 5,000. Both litigants have appealed.

The case disclosed by the record is as follows:

Defendant, through its agents, had been engaged for some five months in replacing, with a reinforced concrete bridge, a wooden trestle, forming part of its railroad and spanning the "Jefferson Highway," near Pineville, in the parish of Rapides, and the work was nearing completion, when, on March 21, 1918, at about 11:30 a. m., decedent, while acting as foreman of the construction gang, was run over and killed by an unscheduled train, consisting of an engine, tender and oil tank, moving backward and pulling five cars, which, approaching from the north, without having given proper warning (as plaintiff alleges), crossed the trestle upon and beneath the surface of which the work was being carried on. The general direction of the railroad is northwest and southeast, and it appears to cross the highway at a right angle. The length of the bridge from the outsides of the abutments is 51.4 feet; the width is probably 40 feet. At the time of the accident, the construction gang was at work on the central pier, which was being molded of concrete, reinforced with iron or steel, in a wooden form, built up from the surface of the highway to, or near to, the surface of the trestle and railroad track -- a distance of 15 feet. For the purposes of the work, a wooden tower had been erected on the east side of the track at a point about 35 feet south of the trestle, from which a chute was extended, for the conveyance, by gravity, of the concrete mixture into the form. The apparatus, called a "mixer," in which the rock, sand, and cement were mixed, was located within a few feet of the base of the tower, and was operated by Charles Bose. A few feet to the southward of the mixer there was a hoisting engine, operated by Henry Kimball, whose duty it was to receive the mixture from Bose, in a container called a "bucket" (though probably bearing no resemblance to an ordinary bucket), and, upon signals from the foreman, hoist it up into the tower, where the bucket was automatically emptied into the chute, through which it passed into the form. The duty, and only duty, of Kimball and Bose, therefore, was to keep up the supply of concrete and deliver it into the chute as called for by Simmons, and, in order to discharge that duty, it was necessary for them to keep their eyes pretty constantly on Simmons, and that they did so, is shown by their testimony. Thus we quote from the testimony of Kimball:

"Q. I understand you saw him before the accident, when he gave you the signal to hoist the bucket? A. Yes, sir. Q. The first time, of those two times mentioned, where was he standing? A. On the track. * * * He was standing on the track and gave me the signal to hoist the bucket, and I hoisted the bucket, and about the time that I hoisted the bucket the train struck him."

He says that he saw the train strike Simmons, the fact being that he was facing in that direction and that the hoisting of the bucket was a matter of but one minute.

Bose testifies that, two minutes, perhaps, before the accident, he was passing on the track and stopped and exchanged a few words with Simmons, and that Simmons gave Kimball the sign to hoist the bucket just as he was leaving him; he did not see the train strike him, but was immediately informed of that occurrence by Kimball, and, the train having passed, he saw the lifeless body of Simmons on the top of the form, beneath the track, at a point about 20 feet beyond that at which he had been struck, with one arm cut off, the skull crushed, and other injuries. D. E. Blake was keeping a meat market and grocery upon one of the streets on the edge of Pineville. He had seated himself upon the front gallery of his place of business and had a clear view of the bridge. He saw Simmons on the bridge and watched him for about 10 minutes when he saw the train strike him. Simmons was standing on the bridge, over the form, when struck, and appeared to be giving instructions to his workmen under the bridge. The witness heard no whistle or bell from the train, and there was no lookout in front. Simmons was looking rather in the direction of Pineville than in that of the approaching train.

The theory of the defense is that Simmons was not standing on the track when the train approached him, but was standing upon what is called a "platfrom," which extended out from the west side of the track, and that, when the train was passing in front of him, he stepped into it and was killed by his own act. The train crew consisted of the engineer, a white man named Porter, and two negroes, fireman and brakeman, respectively, named Gordon and Harvey, and it appears from their testimony, and otherwise, that, for two hours or more preceding the accident, they had been engaged in switching operations within a distance of, say, 300 yards, immediately above the bridge, and had, on several occasions, approached to within 50 or 100 feet of it, only to stop and go back; and we assume that those operations were accompanied by a good deal of whistling and bell ringing. When the switching was completed and they were ready to leave for Alexandria, which is a few miles below the bridge, the whistle was blown twelve times at the starting point, called "Silam Spur," the upper limit of the track over which they had been switching; the purpose being, not to warn any one on the bridge, but to call in the flagman, which having been accomplished, the train was started toward the bridge. At some point below (exact distance not shown) it passed what was called the "car camp," being a collection of cars on a spur or siding in which the construction gang were housed and fed. The cook there employed testifies that she stood in the door and saw the train pass; and that no whistle was then blown, or bell rung, and that there was no lookout on the forward end (consisting of the oil tank). At some distance (not definitely fixed) below the "car camp," there was a road crossing, and the engineer testifies that, before reaching it, and in time to afford full protection for any one who might be passing on the road, he blew the "crossing whistle" for the crossing and the bridge, and it does not appear that he again blew for the bridge, though he says that the bell was kept ringing until the bridge was crossed.

Bearing in mind that he had been switching within 300 yards of the bridge for two hours, and had probably blown the crossing whistle a dozen times, without intending it as a signal for those who were working on the bridge, and well knowing that it was not so understood by them, though he had approached the bridge to within 50 or 100 feet, his idea seems to have been that, on the last occasion when he blew, at a distance of perhaps 50 yards above the bridge, they should have understood differently, because it was then his intention to cross the bridge. His cross-examination on that point elicited the following, with other, testimony, to wit:

"You said, up to the time that you were within 40 feet of him, and according to what you state, Mr. Simmons was unaware that the train was approaching. I will ask you why, under the circumstances, and believing Mr. Simmons to be a careless man, you did not give him additional warning? A. What do you mean by additional warning; get down and make him get off the bridge? Q. No; give him the whistle? A. I blew the whistle 12 times, right there at the end of the camp cars."

Considered as an answer to the question propounded that statement was untrue; the 12 whistles not having been blown as an additional warning to Simmons, or at the end of the camp cars, but as a call to the flagman and at Silam Spur, prior to the starting of the train.

The witness was further cross-examined in regard to the blowing of the whistle, after leaving the starting point, and made the following statements:

He blew when about 100...