Wirth v. Alex Dussel Iron Works. Code v. Same

• Decision Date: 12 February 1917
• Docket Number: 21386
• Citation: 74 So. 551,140 La. 1056
• Court: Louisiana Supreme Court
• Parties: WIRTH v. ALEX DUSSEL IRON WORKS. CODE et al. v. SAME

74 So. 551

140 La. 1056

WIRTH v. ALEX DUSSEL IRON WORKS. CODE et al. v. SAME

No. 21386

Supreme Court of Louisiana

February 12, 1917

Rehearing Denied March 12, 1917

SYLLABUS

(Syllabus by the Court.)

Those who are employed by a common master, but not in a common employment, and are not engaged in the same work or in the same department of service, are not fellow servants.

A servant does not assume the risk of a master's negligence.

Unless the danger be obvious, the defenses of assumption of risk and contributory negligence have no application, when the injured employe was engaged at the time in the performance of his work in the usual manner.

Award of $ 3,000 to the widow and a similar amount to the three children of a deceased employe, who was 45 years of age, of good health and habits, in regular employment, and sole support of wife and children, and who suffered for 56 hours before death, was inadequate, and would be increased to $ 6,000 for widow and same amount for children.

Lemle &amp Lemle and Arthur A. Moreno, all of New Orleans, for appellant.

Samuel Wolf and Herbert W. Kaiser, both of New Orleans, for appellee.

O'NIELL, J., dissents.

OPINION

SOMMERVILLE, J.

Plaintiff, in her individual capacity, as widow, sues the defendant for $ 15,000 damages for the loss and death of her husband, through the alleged fault and negligence of the defendant company. She instituted a second suit, based on the same cause of action, as tutrix of her minor children, claiming $ 15,000 for each of the three children for the loss of their father. There was judgment in favor of plaintiff, as widow, in the sum of $ 3,000, and also a judgment in her favor, as tutrix, for the further sum of $ 3,000. Defendant has appealed, and plaintiff has answered the appeal and asks that both judgments be increased from $ 3,000 to $ 7,500. The two cases were tried at one time, on the same evidence; and there is but one transcript of appeal.

Plaintiff alleges that the defendant was engaged in converting a sailing vessel into an oil barge, in the Mississippi river, in the port of New Orleans; that it employed her husband to operate an oxy-acetylene gas engine stationed on the deck of said vessel; that it was his duty, in operating said engine, to see that there was an adequate supply of gas furnished to workmen in the hold who were engaged on ironwork, to observe the gauges on said engine, and to receive signals from the foreman and workmen in the hold; that, while he was performing the duties assigned to him, a laborer, who was working on the deck of said vessel, removing an iron bar, or davit, measuring about 8 feet in length, and about 1 1/2 inches in diameter, carelessly and negligently permitted said iron bar to fall and strike plaintiff's husband, which knocked him into the hold of the vessel through a hold on the deck, and injured him to such an extent as to cause his death within 56 hours thereafter. She alleges that the ribs of her husband were fractured, that he received a lacerated wound of the scalp, and general contusions.

She further alleges that the workman who caused the accident was inexperienced, but she failed to prove this allegation. She alleged and proved that defendant's employe, who inflicted the injury upon her husband, was grossly negligent in removing said davit, and that the injury was the direct cause of his death.

Defendant answered admitting that it was engaged in the converting of a sailing vessel into an oil barge, and that it had engaged the deceased in this extrahazardous work, and alleged that he had assumed the risks incidental thereto, that he had been assigned a safe place in which to work, and that he had left such place without permission, or for any sufficient reason, and contrary to instructions; that if the injury to Code was due to the fault of the employe Schneider, who took the davit down, then it was through the fault of a fellow servant, for which it is not responsible. It denies fault or negligence.

The evidence shows that, while Schneider had had experience in the line of work in which he was engaged, he had never before removed a davit; he was working with saw, maul, and chisel; and he had sawed into the deck of the vessel for the purpose of loosening the lower end of the davit; that he struck the sawed woodwork with the maul after it was loose, and the davit fell on Code and injured him. The evidence further shows the Schneider did not give any warning to Code, the deceased, that the davit was about to fall, or for him to get out of the way. He says that he did not know how the davit would fall, or that Code was near enough to be struck. Schneider says that Code should have been at his machine, attending to his business, and that the davit would not have then hit him; that Code had walked away from his machine, without any reason therefor, and had left a safe place for one of danger.

The foreman of the defendant company testified that the deceased was employed to operate the gas machine, or oxy-acetylene tank, as he chose to call it; that his duties were to watch the gauge; 'when the machine was empty, to charge it -- to put nothing over 50 pounds of carbide in it.' He further testified that it was the duty of Code to supply gas to the workmen in the hold of the vessel, who were engaged in working on iron down there, and who required heat for the purpose.

The evidence shows that the deceased moved only a short distance from the machine that he was operating, and that the gauges were large enough for him to see them at such distance. The foreman testified that:

'A man will move away from his work at times.' 'You can't keep no man standing exactly watching that there. You can tell him one hundred times a day not to move, and he will move anyhow.' 'It is a natural thing for a man to move, to move around while on the job.' 'He didn't have to stand exactly in one spot. He could take a step like this (indicating) from his...