William v. T. J. Sellers & Co

• Decision Date: 01 May 1889
• Docket Number: 10,211
• Citation: 41 La.Ann. 500,6 So. 813
• Parties: MRS. WILLIAM CAREY, WIDOW AND TUTRIX, v. T. J. SELLERS & CO
• Court: Louisiana Supreme Court

6 So. 813

41 La.Ann. 500

MRS. WILLIAM CAREY, WIDOW AND TUTRIX, v. T. J. SELLERS & CO

No. 10,211

Supreme Court of Louisiana

May 1, 1889

APPEAL from the Civil District Court for the Parish of Orleans Monroe, J.

Harry H. Hall, for Plaintiff and Appellant.

Rice &amp Armstrong, for Defendants and Appellees.

OPINION

FENNER, J.

This case is identical in many respects with that of Faren tutrix, vs. Sellers, recently decided by us and reported in 39th Ann. p. 1011. It is an action sounding in damages for fatal injury received in the prosecution of the same work of demolishing the main building of the Exposition, by a servant employed in the same manner, the accident happening only two days after that in the case mentioned.

The only points in which this case differs from the former are, first, in the nature of the accident; second, in the character of the evidence.

In Faren's case the injury resulted from the disengagement of a purline, occasioned by the fault of the master, which we held to be a latent defect, entirely unknown to Faren, the existence of which he had no reason to anticipate, of which he received no warning and could not be held to have assumed the risk.

In the present case, the injury was occasioned by the falling of a row of trusses near which Carey was working, which fell, not in consequence of anything done to or upon them at the time, but solely in consequence of the stripping of the building, by defendants, of the rafters or purlines which held the trusses in position. As we held in Faren's case, there is no doubt that this stripping of the building was a gross fault on the part of defendants, and rendered them liable for any injury occasioned thereby to others, unless such other persons had disabled themselves from asserting that liability by their own acts or conduct.

But however gross be the fault of the master in subjecting the servant to the risk of injury from defective buildings, premises or appliances, yet when the servant knows the defects and danger, and still knowingly and without protest consents to incur the risk to which he is exposed thereby, he is deemed to assume such risk and to waive any claim for damages against his master in case of injury. Thompson on Negligence, p. 995; Beach on Cont. Negligence, pp. 350, 368-9-70; Wharton on Negligence, Sec. 214; Cooley on Torts, p. 155; Wood, Master and Servant, pp. 809, 698; Rouer on Railroad, p. 1198; Pierce on Railroad, 379, 80.

This concurrence of the text-writers is supported by a substantial consensus of judicial authority, as well as by the plainest principles of reason and justice.

There is not the slightest conflict between the numerous authorities quoted respectively by counsel for plaintiff and defendant. They simply apply to different subject-matters. The first line of authorities addresses itself to the circumstances and causes which constitute fault on the part of the master, and subject him generally to liability for injury resulting therefrom. The second line deals with particular facts and circumstances which establish such contributory negligence or voluntary assumption of known risk on the part of the servant as makes him responsible for injury to himself and disable him from recourse upon the master. Two elements must concur to maintain the action, viz: fault in the master; innocence and excusable ignorance of the servant.

Now, in the instant case, the evidence conclusively...