Williams v. W. R. Pickering Lumber Co.

• Decision Date: 14 March 1910
• Docket Number: 17,820
• Citation: 52 So. 167,125 La. 1087
• Court: Louisiana Supreme Court
• Parties: WILLIAMS v. W. R. PICKERING LUMBER CO. et al

52 So. 167

125 La. 1087

WILLIAMS v. W. R. PICKERING LUMBER CO. et al

No. 17,820

Supreme Court of Louisiana

March 14, 1910

Rehearing Denied April 25, 1910.

Appeal from Twelfth Judicial District Court, Parish of Vernon; Don E. So Relle, Judge.

Action by Claude Williams against the W. R. Pickering Lumber Company and others. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

Palmer & Williamson, for appellants.

Blanchard Barrett & Smith and Monk & Kay, for appellee.

LAND J. MONROE, J., dissents.

OPINION

LAND J.

Plaintiff sued for damages in the sum of $ 20,078 for personal injuries sustained by him while working as brakeman on the Louisiana Central Railroad. The W. R. Pickering Lumber Company and the Pickering Land & Timber Company were made codefendants on the allegations of common connection, co-operation, and privity of interest.

The petition alleged, in substance, that the plaintiff was employed and commenced work on March 10, 1908, as brakeman on the log train of the railroad operating in the vicinity of Cravens, for the purpose of logging the mill at that place.

That on the next day that plaintiff, while in the discharge of his duties as brakeman, was thrown from the last of 18 skeleton log cars, by the sudden stopping of the locomotive by the engineer on the "pond track," at or near a connecting switch on the main line of the defendant railroad; and, in consequence, plaintiff was terribly injured, losing an arm and a leg, and sustaining other painful wounds.

That the conductor of a train on the said main line carelessly and negligently left said switch open at the point of connection with the "pond track."

That the engineer of the log train moving carelessly out of the "pond track," when very near said open switch, without notice or warning, reversed his engine, and caused a sudden stoppage of the locomotive, whereby the slack between the cars was taken up with a mighty jolt or lurch, and in consequence the plaintiff was pitched headlong down under the car.

That defendants were negligent in not furnishing safe places to work and to ride, safe appliances, air brakes or other sufficient brakes, a proper switch, suitable equipments, and did not exercise due care and diligence in the manner the trains were operated by those placed in charge.

Defendants pleaded the general issue; that if the plaintiff was injured as alleged the injury was occasioned by his own gross negligence; that the risk, such as might have existed, was apparent, and was accepted by the plaintiff when he entered defendant's employ; and that the injury, if caused in the manner alleged, was occasioned by the negligence of the plaintiff's fellow servants.

After a very protracted trial before the court and jury, there was a verdict in favor of the plaintiff for the full amount claimed. The defendants have appealed.

A record of nearly 1000 pages attests the zeal and industry of counsel. The evidence is so voluminous and conflicting that it is impossible to condense even its substance within the limits of an ordinary opinion.

The Louisiana Railroad Company, as a common carrier, operates its main line from Pickering to Cravens, a distance of about 19 miles. The W. R. Pickering Lumber Company has its plant at Pickering, and that of the Pickering Land & Timber Company is located at Cravens. A regular train for passengers and freight is operated once a day on the main line, which is also used by a number of logging trains in the transportation of logs to the two mills. At the mill near Cravens there is a large pond for the reception and handling of logs. A track leading from the pond to the main line, several hundred yards distant, is called the "pond track." A logging train going out to the woods follows this track to the main line, is switched thereon, and then takes the main line until the woods track is reached. The logging train at Cravens usually made three or four trips per working day. Hence the switch on the main line near the mill pond was used by the logging train three or four times as often as it was used by the regular train. This being so, it was customary to keep the switch lined up with the "pond track" in order to save time in the operation of the more important branch of the business.

The railroad company had a local superintendent at Cravens, who at the same time superintended the mill there operated. The railroad company had no written or printed rules for the guidance of its employes. The logging train was run by a man named Benner, who was both engineer and foreman or conductor. In the running of the train Benner was aided by a fireman and two brakemen. Plaintiff was one of the brakemen.

On March 11, 1908, after making one trip to the woods, Benner gathered up 18 empty skeleton cars on the "pond track," and pulled out for the switch. When within about 90 feet of the switch, Benner saw that the switch points were open or against his train, and immediately reversed his engine, and succeeded in stopping the locomotive on the points of the switch. Benner gave no signal warning to his crew before reversing this engine, but made an emergency stop as in case of sudden danger. Benner handed in a report blaming the crew of the regular train for leaving the switch open. Benner, an experienced engineer, supposed that the crew of the regular train had performed the customary duty of closing the switch. The switch was a ground switch, and Benner could not tell from its position whether it was open or closed. Benner testified that on one or more occasions he had run his locomotive into the same switch. We gather from the testimony of several other witnesses that it was the duty of the crew of the regular train to close this switch. The local superintendent did not testify on this subject. Benner seems to have had full control and management of his logging train. None of the crew of the regular train testified in the case. The matter of the closing or opening of this switch seems to have been left to the crews of the two trains. According to Benner and his fireman, sometimes the crew of the regular train passed and left the switch open. If this be true, it was negligence in Benner not to send one of his crew ahead of the train to inspect the switch every time he had occasion to use it.

The superintendent was negligent in not making and enforcing proper rules and regulations for the safe operation of this switch. After the accident a rule was adopted making it the special duty of the conductor or engineer in charge of the regular train to see that this switch was not left open or against the "pond track."

Under the conditions existing on March 11, 1908, Benner, knowing that the switch might have been left open by the crew of the regular train, and knowing that the switch had no sufficient warning signal device, was guilty of negligence in not sending one of his crew forward to inspect and close the switch if necessary. The engineer was also guilty of negligence in reversing the engine without warning. See Bell v. Lumber Co., 107 La. 725, 31 So. 994. Benner, having sole charge of the operation of the logging train, represented the railroad company, and was not a fellow servant of the brakeman; nor were the crews of the two trains fellow servants. Weaver Case, 116 La. 468, 40 So. 798; Town's Case, 37 La.Ann. 630, 55 Am. Rep. 508; Mattise Case, 46 La.Ann. 1535, 16 So. 400, 49 Am. St. Rep. 356; Payne's Case, 117 La. 983, 42 So. 475; Dobson's Case, 52 La.Ann. 1134, 27 So. 670. If the superintendent of the defendant company was negligent, the fellow servant doctrine has no application. Ferringer v. Oil & Mineral Co., 122 La. 441, 47 So. 763.

Benner did not give the customary sudden stop signal to his crew, but, according to his report, it was a case of emergency, and he reversed the engine to save the open switch. According to Benner's testimony and report, he did not take the safety of the crew into consideration. Nor do we find in the record any evidence tending to show that the railroad company ever instructed or warned the crew as to the proper precautions to be taken to avoid the constant dangers attending the operation of the logging trains. The crews were left to their own devices to safeguard themselves not only against the ordinary, but the extraordinary, hazards of an occupation, dangerous even under the best conditions.

The emergency stop in question caused great excitement and commotion. As the cars began to bump together, cries of "Look out!" "Look out!" were heard. At this moment the plaintiff was standing on the rear portion of the last car of the train. This particular car was jerked violently forward, and the plaintiff was hurled head foremost beneath the car. He was run over and injured in the manner already stated. The rear trucks of the car left the rails. Whether this derailment was caused by the sudden stopping of the locomotive, or by its running over the leg or arm of the plaintiff, is one of the disputed, but not essential, issues of fact in the case.

The answer does not even hypothetically admit that the railroad company or any of its representatives was guilty of negligence. Hence, technically, the averments of the answer do not raise the question of contributory negligence. This issue, however, was presented by the evidence, and was considered by the jury under the charge of the court.

On this issue the burden of proof rests on the defendant railroad company. Buechner v. City of New Orleans, 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455.

On the day of the accident, the plaintiff was acting as rear brakeman and flagman. His proper place was on the rear car. His duty was to watch the cars, and to flag the engineer if anything went wrong. As a matter of...