Wallace v. Tremont & G. Ry. Co

• Citation: 140 La. 873,74 So. 179
• Decision Date: 15 January 1917
• Docket Number: 20878
• Parties: WALLACE v. TREMONT & G. RY. CO
• Court: Supreme Court of Louisiana

74 So. 179

140 La. 873

WALLACE v. TREMONT & G. RY. CO

No. 20878

Supreme Court of Louisiana

January 15, 1917

Rehearing Denied February 12, 1917

SYLLABUS

(Syllabus by the Court.)

It is the duty of a master to see that the number of servants engaged on any particular work is sufficient to secure the reasonable safety of each one of them.

The duty of a master to furnish proper tools, appliances, and a safe place, embraces human instrumentalities and mechanical devices.

Stubbs Theus & Grisham, of Monroe, for appellant.

Hundley & Hawthorn, of Alexandria, for appellee.

OPINION

SOMMERVILLE, J.

O. K. Wallace, husband of the plaintiff, while employed as brakeman of the defendant, received fatal injuries from which he died within 12 hours; and this suit is for damages, under allegations of negligence on the part of the employer on the ground that the train crew was insufficient in number, and that the track over which the train was being operated was defective. The answer admits the injury and death, but denies that the accident was occasioned by any fault or negligence on the part of the defendant, and avers that same was occasioned by negligence on the part of plaintiff, with the additional allegation of assumed risk.

There was judgment in favor of plaintiff and against defendant in the sum of $ 9,000, and the defendant has appealed.

The train upon which the deceased was serving as a brakeman was a mixed train, running from Tremont, La., to Winnfield, thence to Rochelle, then going back over a portion of the same line running between Tremont and Winnfield to a junction point known as Minnifee, then to Tremont, on the same day.

While at Minnifee, it appears that some switching became necessary to make up the train, which was a mixed one composed of both passenger and freight cars, upon which the deceased was acting as brakeman.

The evidence shows that prior to the time of the accident two brakemen had been employed on this mixed train; but, on the day of the accident, the second brakeman failed to arrive on time, and the train was ordered to move without the second brakeman. The evidence further shows that there was work for two brakemen on the train, and that the train crew was insufficient in number because of the missing brakeman.

T. J. Roberts, yardmaster of the Louisiana & Arkansas Railroad, testified on behalf of plaintiff that the necessary crew to handle a mixed train, like the one in question, would be two brakemen, conductor, engineer, and fireman. And, asked why two brakemen instead of one were necessary, he said:

'If the man had a car to set out -- suppose a man had a car to cut out on a curve, if one man had to do it, the engineer could not see him give the signal, but if there were two and they had a car to set out, one man could cut it off and the other man would set it.'

De Loach, conductor on the Louisiana Railway & Navigation Company, testified: That one brakeman was not sufficient to operate a mixed train, 'because the work the railroad company requires you to do on such routes is such that you must have a full crew.' That if he did that work for 12 hours, 'he would be all in at that time -- I would. He would be all in before that time.' That it was necessary to have two men, because, 'one man cuts the cars off, uncouples the cars, and another man throws the switch; and if it is on a grade, one of them will have to go on top and set a brake.' Asked whether he had ever been a conductor on a mixed train which used only one switchman, he answered, 'Never in my life.' When asked whether a mixed train might be operated with one brakeman in safety, he replied: 'Well, sir, I say it cannot be operated with safety with one man, and I never worked for a road that did that.'

The absence of the second brakeman of the train crew was known to the train dispatcher of the defendant company, and the mixed train was sent out without this second brakeman. The evidence is clear on the point that the work requires that there should have been two brakemen in the crew; and that the crew with only one was insufficient.

In the case of Hill v. Lumber Co., 108 La. 162, 32 So. 372, 58 L. R. A. 346, while an employe was temporarily absent through accident, and a fellow workman's life was thereby endangered, the court say, in part:

'It will not do for defendant corporation to argue it had enough men behind the edger to do the work there. It was its duty to have had a sufficient number of men there, not only to do the work, but to do it with safety to those working in front of the edger.

If Adam Cosman could not leave his post for five minutes without danger and death attending on his absence, the master should have provided against that contingency. There should have been an extra man there for just such purpose.'

In a similar case, where loaded coal cars in a mine got beyond control, owing to there being one man in charge instead of two, the Supreme Court of Virginia held the company responsible in damages. South West Improvement Co. v Smith, 85 Va. 306, 7 S.E. 365, 17 Am. St. Rep. 59. It is well recognized that it is as much the duty of the master to furnish a sufficient number of servants to perform the duties assigned to them in a reasonable manner as it is to furnish them with a reasonably safe place in which to labor. It is the duty of a master to furnish proper tools and appliances for the safety of his employes, and this includes human instrumentalities as well as mechanical devices. Hyland v. Telephone & Telegraph Co., 70 S.C. 315, 49 S.E. 879; Illinois Central R. R. Co. v. Langan, 116 Ky. 318, 76 S.W. 32, 25 Ky. Law Rep. 500; Chesapeake & Ohio Ry. Co. v. Board, 25 Ky. Law Rep. 1118, 77 S.W. 189; Peterson v. American Grass Twine Co., 90 Minn. 343, 96 N.W. 913; Hilton v. Fitchburg R. R. Co., 73 N.H. 116, 59 A. 625, 68 L. R. A. 428; Denver & R. G. R. R. Co. v. Reiter, 47 Colo. 417, 107 P. 1100; Brown v. Rome Machine Co., 5 Ga.App. 142, 62 S.E. 720; Standard Sanitary Mfg. Co. v. Minor, 33 Ky. Law Rep. 972, 112 S.W. 572; Meily v. St. Louis & S. F. Ry. Co., 215 Mo. 567, 114 S.W. 1013; Di Bari v. J. W. Bishop Co., 199 Mass. 254, 85 N.E. 89, 17 L. R. A. (N. S.) 773, 127 Am. St. Rep. 497; Coughlan v. Philadelphia, B. & W. Ry. Co., 6 Pennewill (Del.) 242, 67...