Davis v. New Orleans Public Belt RR

375 So. 2d 395
CourtLouisiana Court of Appeal
DecidedOctober 12, 1979
Docket9912
StatusPublished
Cited by4 cases

This text of 375 So. 2d 395 (Davis v. New Orleans Public Belt RR) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. New Orleans Public Belt RR, 375 So. 2d 395 (La. Ct. App. 1979).

Opinion

375 So.2d 395 (1979)

Murray DAVIS, Jr.
v.
NEW ORLEANS PUBLIC BELT RAILROAD et al.

No. 9912.

Court of Appeal of Louisiana, Fourth Circuit.

August 21, 1979.
Corrected on Denial of Rehearing October 12, 1979.

Stephen R. Plotkin, Owen J. Bradley, New Orleans, for Murray Davis, Jr., plaintiff-appellee.

Wood Brown, III, New Orleans for New Orleans Public Belt Railroad et als., defendants-appellants; Montgomery, Barnett, Brown & Read, New Orleans, of counsel.

*396 Before SAMUEL, STOULIG and BOUTALL, JJ.

BOUTALL, Judge.

This is a tort suit for personal injuries resulting to plaintiff from an on the job accident brought against co-workers, executive officers and others for loss of a portion of plaintiff's left arm. The trial court awarded judgment against certain of the defendants in the amount of $862,048 and they have appealed. The trial judge presented detailed and well reasoned Reasons for Judgment and we quote his statement of the facts of the case as follows:

"FACTS OF THE CASE

"On June 4, 1974, Murray Davis, age twenty-one (21), who had been a probationary worker for about four months at the Bulk Cargo Terminal operated then by the Board of Commissioners for the Port of New Orleans, was working the 6:00 P.M. to 6:00 A.M. shift. Davis was a Bulk Terminal Worker I by Civil Service designation and his duties included loading and unloading various cargo, cleaning up, throwing switches, closing train doors and coupling and uncoupling cars.
"On this particular night, Davis spent several hours assisting in the loading of bulk sugar into freight cars at the sugar loading platform located between railroad tracks # 1 and # 2. The loading went on until some time after midnight. Then Davis and the other workers took their `lunch' break for approximately an hour.
"Apparently during this break, two things took place, though there is disagreement in the testimony concerning them. One occurrence was that Davis was ordered to go to the terminal `office' after lunch, and help Walter Alexis, another worker, in cleaning it up. The second was that someone told Davis that he was to be fired from his job at the end of the shift that morning.
"Davis went to the office after the lunch break and spent some time cleaning it up with Alexis. Then he left. According to his testimony, he was looking for his immediate superior, Foreman Paul Lucky, in order to find out about the `rumor' concerning his being fired, or to ask Lucky to talk with him with Burleigh Price, Operations Supervisor of the Terminal.
"Davis went to the vicinity of the sugar platform, and found another worker, Robert Barlow, closing doors on the sides of the cars facing the sugar platform. He assisted Barlow in closing a door and asked where Lucky was. Barlow's response is not made clear in the testimony, but when Lucky did not appear, Davis walked between tracks # 1 and # 2 for some one hundred (100) yards, still looking for him. He then crossed in a westerly direction over stationary coupled railroad cars and walked another fifty (50)-seventy-five (75) yards toward `the back of the yard', but still failed to find Lucky. He then started back, and as he crossed between coupled cars again, the train moved suddenly, and he was thrown beneath the wheels. His left arm was caught between the wheels of the boxcar and the rails and he suffered a traumatic amputation of the left arm.
"Davis' suit is against certain executive officers and fellow employees at the Bulk Terminal, among them the present Executive Director of the Port, the Deputy Director of the Port, who had previously been Safety Officer of the Board; The Assistant Superintendent of the Bulk Terminal, certain supervisors and foremen who stood immediately above him in the Bulk Terminal chain of command."

On this appeal, the appellants raise no issue as to the standing of each individual defendant to be held in judgment, but do contend that there is no negligence generally shown, and that the plaintiff assumed the risk or was contributorily negligent.

The statutory law, R.S. 23:13, requires that every employer shall furnish his employee a reasonably safe place in which to work, and requires that the methods and processes used in the employment shall be reasonably adequate to render the employee *397 safe from hazards. The liability of some of these defendants arises from a violation of that duty, as well as under the provisions of the general tort law, L.C.C. Article 2315. The trial court found that there were no established rules to control work at the terminal, there was no safety program for the workers, no training program or instructions given relating to the operation of the loading train and related operations. The train engine itself was operated by a man who received only the most rudimentary instructions as to how it worked and who moved the train on instructions from an office. When the train moved, there were no horns, whistles, bells or other signals given to alert any of the workmen that the train may begin to move. The engineer was limited to only a partial view of the area and could not tell if someone was in a dangerous position. The person controlling his movements was on the loading dock and he could only see at best less than one half of the operating area. The negligence of the various defendants is well established by the record.

The issues of contributory negligence of the defendant and assumption of risk are more closely contested. This workman was a probational worker who had been on the job only a couple of months and he had never received any safety training or admonitions as to the proper safety procedures. Obviously, of course, it takes no particular warning to impress any reasonably prudent adult that if he attempts to cross between the cars of a moving train, he is subject to serious injury. However, it must be remembered that these employees are engaged in constantly throughout their work period crossing tracks and performing operations in the loading and unloading of freight cars. The evidence shows that all employees from supervisors down, constantly crossed between the cars of stopped trains whenever the train was of such length as to require considerable inconvenience to circle around it. This particular train was of considerable length and had been stopped for quite some time because of the lunch break. Plaintiff was aware of its condition, and in fact had helped one of his fellow employees perform an operation in connection with the train. It is apparent that he had no knowledge that the train was about to move at the particular time he attempted to cross.

The test for contributory negligence is the same as for primary negligence and is that conduct which falls below the standard to which a person should conform for his own safety and protection, the standard being that of a reasonable person in like circumstances. Pfister v. Phoenix of Hartford Insurance Company, 290 So.2d 362 (La.App. 4th Cir. 1974). Additionally, if plaintiff fully appreciated the risk he was incurring and freely and voluntarily chose to incur it, then it can be said that he assumed the risk. In a case such as this, it is necessary to look at the applicable established custom and requirements of the trade or activity in which the parties are engaged and to give common sense consideration to all of the circumstances. Ryan v. B & G Crane Service, Inc., 210 So.2d 514 (La.App. 4th Cir. 1968).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Adams v. Phillips
506 So. 2d 651 (Louisiana Court of Appeal, 1987)
Hamilton v. Employers Casualty Co.
506 So. 2d 655 (Louisiana Court of Appeal, 1987)
Villar v. Wilco Truck Rentals
627 F. Supp. 389 (M.D. Louisiana, 1986)
Thissel v. Commercial Union Ins. Co.
476 So. 2d 851 (Louisiana Court of Appeal, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
375 So. 2d 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-new-orleans-public-belt-rr-lactapp-1979.