Weaver v. W. L. Goulden Logging Co., Ltd.

• Decision Date: 26 March 1906
• Docket Number: 15,857
• Citation: 40 So. 798,116 La. 468
• Court: Louisiana Supreme Court
• Parties: WEAVER v. W. L. GOULDEN LOGGING CO., Limited

40 So. 798

116 La. 468

WEAVER v. W. L. GOULDEN LOGGING CO., Limited

No. 15,857

Supreme Court of Louisiana

March 26, 1906

Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles Vernon Porter, Judge.

Action by J.H. Weaver against the W.L. Goulden Logging Company Limited. Judgment for defendant, and plaintiff appeals Affirmed.

Breazeale & Breazeale, for appellant.

Lynn Kyle Watkins and Scarborough & Carver, for appellee.

OPINION

LAND J.

Plaintiff sued defendant for $ 5,000 damages for personal injuries.

The suit was dismissed on an exception of no cause of action, and plaintiff has appealed.

We make the following extract from brief of plaintiff's counsel:

"The plaintiff alleges: That he was employed by defendant company as a laborer and tong hooker for logs in the woods. The work he had to do consisted of hitching or attaching iron tongs into a log of timber, which tongs were attached by a rope or chain to what is called a drum, which is worked by steam.

The drum revolves when steam is applied, which wraps around it the rope or chain, thus hauling the log to the skidder, where it is loaded on the car.

That while engaged in this occupation and having tonged several logs which were successfully loaded, he and a fellow workman were proceeding with their work, and that plaintiff had properly tonged a log which was being hauled by operation of the drum, when the log was drawn in contact with a stump. Proper signals were given to the man operating the drum, who recognized and answered them by stopping the drum. That plaintiff was proceeding to disengage the log from the stump and shape its course so as to avoid stumps, when the person operating the drum, without warning and with gross negligence and carelessness, turned on the steam, and the tongs, unable to resist, were pulled out of the log with great force and struck plaintiff on his left leg, breaking it in two places below the knee."

The petition further alleges that the plaintiff attempted to run and avoid the danger, but had no time in which to do so; and that the defendant company is responsible for the negligence and carelessness of its employes and is liable in damages resulting from the accident so caused by the negligence and carelessness of the defendant company and its servants and employes.

The district judge held that under the allegations of the petition the injury was inflicted by the fault of the man who was operating the steam drum, who was a fellow servant of the plaintiff, and therefore the defendant company was not responsible for the damages.

Plaintiff's contention is, first, that the man who was operating the drum was not his fellow servant; and, second, that the fellow servant doctrine has no application whatever under the Civil Code of Louisiana.

The man at the drum was by means of machinery pulling the log which plaintiff was guiding, and hence they were both engaged in the same work.

The movement of the log was under the immediate control of the plaintiff, who by signals directed the man at the drum when to start and when to stop the operation.

The allegations of the petition do not show that the man at the drum was a superior servant who had control of the work of pulling and skidding the logs.

In all the cases in our Reports cited by plaintiff's counsel the employe who caused the accident was the superior servant of the injured person or a vice principal of the master.

In Town's Case, 37 La.Ann. 630, 55 Am. Rep. 508, it was held that a conductor was not a fellow servant of the engineer.

In the Mattise Case, 46 La.Ann. 1535, 16 So. 400, 49 Am. St. Rep. 356, it was held that an engineer, who had charge of an ice factory, was not a fellow servant of a "coal passer."

In Evans v. Louisiana Lumber Co., 111 La. 534, 35 So. 736, this court, with considerable difficulty, concluded that a sawyer was not the fellow servant of a "dogger," or man working under him on the log carriage. After reviewing the jurisprudence of the state on the subject the court said:

"The master is liable when the work in which he is employed requires that one of the employes shall have the direction and control of the servant placed under him, although he may not have the independent power (independent of the master's authority) to employ and discharge."

The court in that case found that the "plaintiff was performing a duty under the direction of the sawyer," who had charge and control of a special department of work in the mill.

In the case at bar there is no allegation that the man at the steam drum had charge of the logging work or was directing or controlling the plaintiff in the discharge of his duties.

The most that can be said is that both servants were engaged in the same common work under a common employment. Merritt v. Lumber Co., 111 La. 159, 35 So. 497.

In such cases the servant assumes the risk of his fellow servant's negligence, and the master is not liable if not in fault in the employment of incompetent or careless servants. Satterly v. Morgan, 35 La.Ann. 1166; Poirier v. Carroll, 35 La.Ann. 699; Hubgh v. Railroad Co., 6 La.Ann. 498.

In the Satterly Case a locomotive engineer and a switchman were engaged in switching cars by means of a rope, and through the fault of one of them the rope recoiled and struck the switchman. The court held that, conceding the negligence of the engineer, the defendant was not responsible. That case and the one at bar are on all fours.

The doctrine that a servant assumes the risk of his fellow servant's negligence was announced in the Hubgh Case, supra, and has ever since been uniformly followed in the jurisprudence of this state.

This doctrine is based on an implied agreement that the servant undertakes to run all the ordinary risks of the service, including the risk of negligence on the part of a fellow servant. Id. This rule of law seems to us to be reasonable and just, as otherwise the master might be held liable without any fault whatever on his part for an accidental injury inflicted by one servant on his fellow.

Counsel for plaintiff, in their very able and interesting brief, contend that the "doctrine of fellow servant" is not known where the civil law prevails, and is contrary to the plain provisions of article 2320 of the Civil Code of this state, which declares that:

"Masters and employers are answerable for damages occasioned by their servants in the exercise of functions in which they are employed."

The same article, however, provides that:

"The responsibility only attaches when the master * * * might have prevented the act which caused the damage, and has not done it."

For many years the Supreme Court of this state gave full effect to the restrictive clause of this article. In Ware v Canal Co., 15 La. 171, 35...