Hailey v. Texas & P. Ry. Co.

Citations

• 113 La. 533
• 37 So. 131
• 1904 La. LEXIS 671

Syllabus

<p>INJURY TO BRAKEMAN — ASSUMPTION OF RISKS —WARNIN S — CONTRIBUTORY NEGLIGENCE.</p> <p>1. The brakeman assumed ordinary risks, not risks arising from defendant’s failure to erect “telltales,” or “warning signals,” at a distance of 150 feet from the approaches of an overhead bridge, in accordance with requirement of Acr No. 39, p. 51, of 1882.</p> <p>2. The duty devolves upon the employer to unequivocally warn the servant. .</p> <p>3. It is not shown that the employé failed to exercise his senses, and that, knowing of the danger, he stood erect and met with the accident which caused his death.</p> <p>4. He ducked his head, not in time to avoid the fatal blow. He was entitled to the statutory warning.</p> <p>5. The cars are not all of the same height. The ordinary car could pass the bridge overhead without the necessity of a stoop by the brakeman. The furniture car on which plaintiff was riding is several feet higher than the ordinary car. The testimony does not show that he had before passed the overhead bridge on a furniture car. The bridge was not so low that the brakeman had to stoop every time he passed.</p> <p>6. In view of the number of low car’s, as compared to the highest, it will not be inferred that he had such knowledge as relieves the defendant from liability.</p> <p>7. The accident would not have occurred if the employé had been on an ordinary freight car, and nothing shows that he knew that it was sometimes necessary to stoop because the furniture cars are higher.</p> <p>8. It is not certain, by any means, that persons working on a train and passing objects, such as an overhead bridge, in rapid motion, with attention fixed on their work, should be charged with knowledge, under the circumstances of the case, which relieved the employer, although under obligation to provide a warning.</p> <p>(Syllabus by the Court.)</p>