
    (72 South. 829)
    No. 20435.
    CONNELLY v. SOUTHERN PAC. CO.
    (June 7, 1915.
    On Rehearing, Oct. 30, 1916.)
    
      (Syllabus by the Gom-t.)
    
    Master and Servant <&wkey;244(2) — Actions eor Injuries — Contributory Negligence.
    Where the plaintiff, a sailor, directed to paint the sides of a hatch, knew and was warned that two planks across the open hatch, by him selected and placed, were so broken and rotten as to barely suffice to support the weight of an average man, during the progress of the work carelessly walked onto said plankst while the second mate was standing thereon doing the work of the plaintiff, who had stbpped aside, and the latter’s additional weight caused the planks to break, and both men were thereby precipitated into the hold of the vessel, and both sustained personal injuries, held, that the plaintiff was guilty of such contributory negligence as to debar recovery of damages from the owners of the ship.
    [Ed. Note. — For other cases, see Master and Servant,- Cent. Dig. § 776%; Dec. Dig. <&wkey; 244(2).]
    Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.
    Action by Patrick Connelly against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and suit dismissed.
    Denegre, Leovy & Chaffe, of New Orleans, for appellant. M. D. Dimitry, of New Orleans (George W. Flynn, Walter Gleason, and Carleton Hunt, all of New Orleans, of counsel), for appellee.
   LAND, J.

This is a suit for damages for personal injuries sustained by the plaintiff, a sailor, while working on one of the defendant’s ships lying at her landing in the city of New Orleans.

According to the allegations of the petition, the plaintiff was ordered by the officer in charge to paint the side of a hatch cover on the S. S. Chalmette, and in order to do the work it was necessary to place a plank across the opening of the hatch. The petition represents that said officer procured a piece of planking and placed it across said opening, and while petitioner was standing on said plank, doing the work assigned to him, said officer walked out on said plank, and was giving further instructions to petitioner about the work, when the said plank broke, due to its weakness, thereby vprecipitating him and the said officer to the bottom of the hatclf, a distance of about 31 feet, and injuring both of them.

Tbie ¡petition further represented that the officer in charge should have known of the weakness of the plank, and should not have caused its collapse by placing his additional weight thereon.

The petition describes the very serious injuries sustained by the plaintiff, for .which he sued for damages in the sum of $30,000.

The answer admits the alleged employment, and that plaintiff was injured to some extent, but denies that the defendant was guilty of any fault or negligence in the premises, and denies that the plaintiff was injured-in the manner set forth in the petition. The answer then states the defendant's version *of the fact, in substance as follows: The officer in charge directed the plaintiff to place a stage plank (several of which were accessible) across the hatch opening, but, instead of doing so, the plaintiff, in the absence of the deck officer, went to the adjoining wharf and took one of certain planks from a sort of roadway for trucks, and laid it across 'the hatchway. Plaintiff was warned by two laborers in the hold that the plank was cracked and old, and thereupon he procured a similar defective plank from the same place, and put it on top of the first plank, and, in spite of similar warnings from the same persons, went out on the planks and started work. Shortly afterwards plaintiff left the planks and the place of work, leaving his brushes and paint pot. After plaintiff had left his work, the deck officer came up, and as it was necessary that the work of painting should be rapidly completed, the officer went on the planks and started to work. The officer was a much heavier man than the plaintiff, but the planks proved sufficient to bear his weight. While the deck officer was engaged in the work, the plaintiff returned, and, of his own motion, went out on the planking, which broke under the additional weight, and in consequence both of the parties fell into the hold and were hurt.

Defendant charges that the plaintiff was negligent in taking planks from the wharf and using them, instead of one of the stages provided for the purpose; in selecting and using defective planks after special warning; and in adding his own weight to that of the deck officer, standing and working on said planks.

The case was tried before a jury, which found a yerdict in favor of the plaintiff in the sum of $14,200; and from a judgment pursuant to said verdict, the defendant has appealed.

In stating the substance of the evidence, we shall designate the plaintiff as “Connelly,” and the deck officer as “Erickson.”

Connelly was a seaman, about 45 years old at the time of the accident, and his version of the facts is in effect as follows: Erickson went out on the dock, picked up some planks and turned them over, saying they were all right, and directed Connelly to take and put them across the hatchway. He did so, and after he had “sprung on both,” got some paint, and started to paint the side of the cover. Connelly painted for about half an hour, when Erickson came rushing along the plank, which all at once broke, and both of them went down. Erickson said the planks were all right, and Connelly tested them by swinging and walking on them before he started to paint. Erickson said that the regular 'stage planks were on top of the ship’s “house,” and it was too much bother to get them down. No one warned Connelly about the danger of the plank.

Erickson’s version is substantially as follows: He told Connelly to get the stage to put across the hatch to paint the hatch. Erickson then left Connelly, and, on returning about 20 minutes later, found that he had gone off, leaving his paint pot and brush on the stage. Thereupon Erickson went on the stage and commenced painting the hatch, and while so engaged, Connelly returned and came on the stage, which broke, and both of them fell in the hold.

Connelly used two boards for a stage. Erickson did not see Connelly get the boards, but Connelly told him that he intended to use them, and that they were strong enough for one. A laborer between the decks told Erickson that the planks were not very strong, and thereupon Erickson tried them and found them strong enough for one. Connelly was not there at the time.

John Adams testified that, at the time of the accident, he was between decks, “shoving com down the main hatch of the Chalmette,” and the mate (Erickson) was painting over the hatch, and Mr. Berry “hollered out,” “Look out, the planks are broken,” but “he didn’t seem to pay any attention;” then Connelly came from forward and he stepped upon the plank, and they both came down together; the plank was broken, and they fell down the hatch.

Henry Berry, another laborer working near the opening of the hatchway in question, corroborated in the main the testimony of Erickson and of Adams. He stated in substance that he knew the condition of the planks in question, having used the same about the elevator; that when Connelly put the first plank across the hatch, Berry “hollered” to him that the plank was broken and rotten, but Connelly didn’t pay any attention, and so Berry “hollered” again, and thereupon Connelly, after testing the plank, went off, and after a minute or so came back with another plank, which Berry saw was also broken, and so “hollered” to Connelly, who replied, “All right, I see it.”

Berry further stated that after painting a short time Connelly went off on the port side of the ship, and while he was off the second mate came and went on the “run,” whereupon Berry told him to watch out for the “run”; he didn’t think it was very strong, and the mate, after testing the “run,” said, “I guess it will hold me,” and started to paint; that in a few minutes Connelly returned on the starboard side, and got on the “gangway,” and made two or three steps, and fell down. In answer to questions, Berry stated that when the mate went on the planks nobody was there, and Connelly came afterwards on them and they broke down.

Louis Roth, another laborer on the vessel, was also a witness in the ease, and his testimony corroborates Berry’s statements as to the warnings given by the latter to Connelly.

The testimony of the plaintiff differs in material respects from the allegations of his petition, and is contradicted in essential particulars by the witnesses for the defendant. The allegation that the mate placed the defective planks across the hatchway is absolutely disproved, and is not even sustained by the testimony of the plaintiff. The proven fact that the mate undertook to finish the job with the pot of paint and brush which plaintiff had been using, cannot be explained on any other hypothesis than the temporary absence of the plaintiff from the hatchway, as testified by several witnesses for the defense. The truth seems to be that instead of the mate rushing on the planks while the plaintiff was standing thereon, engaged in painting,' the plaintiff himself rushed on them, the moment he discovered that the mate had taken his place, and was doing his work. In so doing the plaintiff was clearly guilty of contributory negligence, as be well knew tbe defective condition of tbe planks, and that they were barely sufficient to support tbe weight of an ordinary man. Plaintiff’s heedlessness and carelessness in subjecting the planks to a double strain was the proximate cause of his own injuries, and of the lesser injuries sustained by the mate of the ship.

This conclusion renders it unnecessary to consider other issues discussed by counsel.

The defendant company offered to plaintiff a liberal ’settlement and permanent employment, which we regret to state was declined.

It is therefore ordered that the verdict and judgment below be annulled, avoid'ed, and reversed, and it is now ordered that plaintiff’s suit be dismissed, with costs.

MONROE, O. J., takes no part.

On Rehearing.

MONROE, C. J. The

theory of this case, as propounded by plaintiff, in his petition, was, that Erickson (his superior officer) directed him to paint the hatch (cover); that it was necessary for him to have a plank laid across the hatch (way), upon which he could stand while engaged in that work; that Erickson undertook to provide the plank and went, himself, upon the wharf, and, having obtained it, laid it across the hatchway to serve the purpose stated; that plaintiff took the position, and was engaged in the work, to which he was thus assigned, when Erickson walked out upon the plank, giving furthér instructions, and the plank, not being strong enough to sustain his added weight, .".broke thereby precipitating them both into'the hold of the ship.

The following are the allegations of the petition covering the matters thus stated:

“Petitioner avers that, in order to do the work, it was necessary to place a plank across said hatch, and that the officer in charge, and under whom he was at the time doing the work assigned to him, did place a planking across the said hatch; that the said officer, not having a piece of board at the time, handy, left the vessel and, from the wharf to the said S. S. Ohalmette to which it was moved” (meaning, as we take it, from the wharf to which the steamer was moored) “obtained a piece of planking and placed it across the said hatch and assigned your petitioner thereto on which to do the painting.
“That your petitioner was carrying out the orders and instructions of the said officer * * * when the said Erickson walked out on th'e plank, and was giving further instructions to your petitioner * * * when the said planking broke. * * *
“That petitioner, resting secure in the assumption that his employer would provide, and had provided, a suitable and secure place in which to do the work assigned to him, remained standing on the plank or board, and the officer shouid have known of its weakness ana not caused its collapse by placing his additional weight thereon,” etc.

There is attached to the petition the affidavit of the plaintiff to the verity of his allegations, and “that he knows the same of his own knowledge.” On his direct examination, as a witness in his own behalf, he testified that Erickson took him from the place where he was working, to paint the hatch, which was down between decks, and his examination proceeds:

“Q. What did he say to you when he got you between decks? A. He said he would have to go on the dock and get some planks; so he goes out and picks up some planks from the dock and turns them over, and he said they were all right — to take them; so he had me to carry them across there, and he kept walking up and down, and said tfiey were all right. Q. After you had placed those planks there, and he said they were all right, did you start painting? A. I took hold of the planks and sprung on both, and got some paint and started to paint right away. I was painting there over an hour, and had half of the hatch done when he came rushing along, and, all at once, the plank broke, and both of us went down. * * * Q. Did he ever warn you as regards those planks? A. No, sir; he said they were all right before I went to work on them. I had half of it done when the rush came on to me, and he rushed on me, and I didn’t have a chance to take the brush up, and he started to me, and the plank broke, and we both went down in the hold.”

It was therefore not true,, as alleged in the sworn petition, that it was Erickson who "obtained a piece of planking and laid it across the said hatch,” and “assigned petitioner thereto, on which to do the painting.” Nor was it true, as so alleged, that “petitioner, resting secure in the assumption that his employer would provide, and had provided, a suitable and secure place in which to do the. work assigned him,” remained there, etc.

It was plaintiff himself who brought the planks from the wharf to the ship and laid them across the open hatchway, and he took his stand upon them, not resting secure in any assumption as to what his employer may have done, hut after he had tested them to his own satisfaction. It will be observed that he alleges, in his petition, that Erickson “obtained a piece of planking,” etc., but that, in his testimony, he says that Erickson “goes out and picks up some planks and turns them over, and * * * said they were all right, to take them,” and that he (plaintiff) carried “them across there.” The difference between a single piece of planking, and the “some planks,” to which he refers, figures rather conspicuously in the case, however; for, according to the evidence, he carried first one plank aboard the ship, and then another, and there were circumstances connected with the matter which, one would suppose, would have impressed that fact upon his memory. Thus Berry, who was working between decks, and who says that his head was only four or five feet below the first plank when it was laid across the hatchway, testifies that he called plaintiff’s attention to the fact that it was broken and rotten, and he says that plaintiff tested the plank with one foot, holding onto the hatch, and then went off, and in a minute or so after (quoting from the testimony of Berry), “he came back with another plank, a little narrower than the first one; that plank was broke also, and we -used them on the elevator, so they would not run over the trucks, and I saw him put the other plank, and I hollered that it is broke, and he never answered, and the second time I hollered, he answered in an angry way, ‘All right, I see it;’ and I said, ‘You will be all right if you get down in that hold;’ and so he put the plank on top of the other and got his paint and brush and came on the two planks and he started to paint, and I looked for the planks to break and he started the job, and, after painting a little piece, he went off on the port side of the ship. In the meantime, while he was off, the second mate came, and saw that the job was started and nobody there; * * * there was nobody on the run when the mate came, * * * and he went on the run, and I told him to watch out for that run; I don’t think it is very strong; and he took hold of the run with one hand and tested it, and said, T guess it will hold me;’ and he started to paint, and, in two or three minutes, the sailor came back, on the starboard side, and the mate was painting with the same brush that the sailor had, and, when the sailor came from the forward end of the ship, he got on the gangway and made two or three steps, and he fell down,” etc.

The testimony of Roth corroborates that of Berry, to the effect that plaintiff was warned by Berry about the condition of the planks, and Berry, Roth, and Adams agree, and corroborate Erickson, to the effect that the latter alone was on the planks when the plaintiff went on them and they broke. Our conclusion is that Erickson had probably seen some planks on the wharf- — though how many there were does not appear — and told plaintiff to provide himself therefrom with whatever might serve the purpose of a stage, or platform, but he did not tell him to use any planks that were broken or rotten, and the doctrine whereby the master is held to the exercise of superior intelligence in regard to the danger which may threaten the servant does not go to the extent of requiring that a man of mature age and apparently fair intelligence should be regarded as incapable of distinguishing between a broken and rotten plank and a sound one. But, even, if if; were otherwise, there are the two witnesses who testify that plaintiff was specifically warned that the planks in question were unsafe, and we find nothing in the case which would authorize the belief that they dreamed or concocted that warning, any more than that the four witnesses (Erickson, Berry, Roth, and Adams) dreamed dr concocted the story that it was plaintiff who went on the planks when Erickson was already there, and not Erickson who went on them when plaintiff was already there. Moreover, though plaintiff alleges in his petition that Erickson “walked out on the plank and was giving him further instructions when the accident occurred,” he does not mention the instructions in his testimony, and we are at a loss to conceive why, if Erickson had any further instructions to give, he should not have given them while standing on the deck, since the hatchway was only ten or twelve feet square, and the mate of a ship can usually make himself heard for a distance of five or six feet. On the other hand assuming that plaintiff had left his job for some purpose of his own, and, upon his return, found the mate working in his place, it can readily be imagined that he would be disposed to show some extra alacrity in re-establishing the normal situation, and would, perhaps, expect the mate to lay down the paintbrush and walk out on one end of the plank, while he walked in on the other end; and that is what might have happened, if the plank had not broken. His walking in, under the circumstances disclosed by the evidence, was negligent, and was the direct, proximate cause of the accident, áñd he cannot visit the consequences on the defendant. It has been argued that defendant forfeited the right to a hearing on the appeal by failing to apply for a new trial; but the right of appeal is granted by the Constitution, and the grant does not distinguish between eases in which new trials are applied for and those in which no such applications are made.

The question has been decided adversely to the contention of plaintiff’s counsel in Kramer v. N. O. City & L. R. Co., 51 La. Ann. 1693, 26 South. 411, and Levert v. Berthelot, 127 La. 1012, 54 South. 329.

The judgment heretofore entered in this ease is therefore reinstated and made final.

PROVOSTY and O’NIELL, JJ., dissent.  