Thompson v. New Orleans And Carrollton Railroad Companys

• Citation: 32 So. 177,108 La. 52
• Decision Date: 14 April 1902
• Docket Number: 14,045
• Court: Supreme Court of Louisiana
• Parties: LETTIE THOMPSON, WIDOW OF ELLIS SINGLETERRY, TUTRIX, FOR THE USE ETC., v. NEW ORLEANS AND CARROLLTON RAILROAD COMPANY

32 So. 177

108 La. 52

LETTIE THOMPSON, WIDOW OF ELLIS SINGLETERRY, TUTRIX, FOR THE USE ETC., v. NEW ORLEANS AND CARROLLTON RAILROAD COMPANY

No. 14,045

Supreme Court of Louisiana

April 14, 1902

January 1901

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans -- Theard, J.

Oliver B. & Samuel Samsum, for Plaintiff, Appellee.

Dart &amp Kernan (Purnell M. Milner, of Counsel), for Defendant Appellant.

OPINION

BREAUX, J.

Plaintiff, tutrix of her minor children, sues to recover damages against defendant for the death of their father caused by an electric shock received by him while at work for the defendant company.

At the date of the accident, defendant was rebuilding its system of railway. The work consisted in reconstruction of both the overhead electric lines and the railway track. They were at the time also reconstructing the feeder system of electricity, taking out the smaller wires and putting in larger ones. The company had a night working gang and one during the day. The cars were operated as usual, but under much greater difficulties. Several hundred men were employed in breaking and digging up the soil, putting down new rails and were doing corresponding new work overhead along the track.

The company employed experienced electrical engineers who had charge of the work which altogether extended as far up as Carrollton from the point of beginning which was at Lee's circle. Their materials, we are informed by the record, were the best to be found and the subordinates had had long experience, and great care had been given to select only competent employees.

The company, through its representatives, says that all needful prudence was observed and warning given. None the less the accident occurred which resulted in the death of plaintiff's husband.

In accordance with orders, plaintiff's husband and a number of other men were at work carrying heavy rails weighing over four thousand pounds each from the street to the center of the neutral ground; they had carried one rail to where they had been directed to place it, near the iron trolly pole. The accident happened while they were carrying the second rail.

Defendant's contention is that in depositing it they swung violently against this trolly pole and it was then that the heavy glass insulator by which the feed wire was supported and around which the tie wire was fastened was broken and thereby the iron screw was exposed and it cut the wire and left it rubbing against the iron pin, charging the iron pole and inflicting a shock which was felt by the twenty men holding the rail, killing plaintiff's husband. This is one of the decisive issues of the case, plaintiff's contention being that the rail was not violently thrown against the trolly pole, while defendant insists that it was.

We have examined the testimony as carefully as we could, bearing this contention in mind. In view of the great weight this crew was handling, it is possible that they brought the rail in contact with the trolly pole with some force, but of this we have no positive testimony. On the contrary, the testimony discloses that the men carried the rail as directed. It was then that the shock was received. In the presence of the positive testimony sustaining the contention of plaintiff that nothing unusual was done in laying the rail near the pole, we do not think that we would be justified in adopting the theory that the violence of the contact between the rail and the pole caused the glass insulator to break and disinsulate the wire. That view is not supported (but the reverse) by direct testimony of witnesses who were holding the rail just at the moment of the shock and just as they were placing it close to the trolly pole.

One of the contentions for the defendant is that if the insulator had been broken two days prior to the accident, as averred by plaintiff, then that there would have been an alarm given at the power house by a machine referred to by witnesses as a circuit breaker.

The testimony, while positive enough regarding the purpose of this machine in matter of giving alarm, did not satisfy us that it was so absolutely reliable that it must be taken as conclusive that the insulator was broken by a violent blow in laying down the rail, and that it was not broken at any time prior,...