
    No. 8115.
    Court of Appeal Parish of Orleans.
    Christine Davis, widow of Frank Whitfield versus City of New Orleans.
    By Dinkelspiel; J.
   By Dlnkelspiel i J.

Plaintiff as the widow of the deoeased has brought this suit under Aot Ho. SO, page 44 of 1914, known as the Employers Liability Aot, for injuries received by her late husband, Frank Whitfield, while in the employ of the defendant Company as a laborer.

The answer sets up, admitting plaintiff had been a laborer working for the defendant Company but that he had abandoned his work and involuntarily exposed himself to the dangerous hasard which was outside of the soope of his employment and which takes the case out of the protection of the Employers Liability Aot and is a bar to the right of the widow to recover damages and further defendant denies that plaintiff received jris injuries while performing services a.rising out of an. incidental to his employment in the course A of his employers' trade, business or occupation but on the contrary avers that the deoeased was engaged in some mission which was entirely foreign to his employment and not contemplated or expected by his employers.

A oareful examination of this record discloses the faot that plaintiff was a laborer engaged actively on the works laying rails, taking up old and putting down new rails for defendant company and that during the oourse of his employment and whilst thus engaged at the time specified in the petition, October 5th, 1913, he was run over by an engine of the Illinois Central Railroad, running on a track next adjoining the traok of the Publio Belt Railroad upon which plaintiff had been working and from which he had stopped temporarily to seek shelter on said adjoining tack, under a box oar in order to shield himself from a sudden and short rain squall, .ana alleging further that plaintiff was run over, and although taken to the Chatlty Hospital, where his legs had to be amputated, he died the same evening as the result of said injury. That he was married to plaintiff, having no ohildren, who was dependent upon him for her support; that he was earning Sixteen and 80/l00 Dollars a week and plaintiff» widow of the de-oeased was entitled under the law to twenty five per oent of that amount.

The Aot No. 20 is full and oomplete in itself; presorihes the liability of an employer to make compensation for injuries reoelved by an employee in performing services arising out of and inoidental to his employment, in the oourse of his employer's trade, business or occupation, abolishing defenses of assumption of risk, contributory negligence and negligenoe of a fellow servant, in actions of personal injury and death and in Seotion 8 (8) fixes definitely compensations thereunder.

This aot was amended and reaffirmed by the Legislature of 1918 but so far as this suit is oonoerned does not in anywise affeot this oase.

All the facts of this oase to our minds have been proven beyond reasonable doubt and the only question for interpretation whioh presents itself in this record is whether or not, leaving his work during a rainstorm, temporarily and for about only twenty minutes and seeking shelter under and within a box oar of another railroad, he was actually engaged in the service of defendant company.

We have been oalled upon in our own Court to pass on a similar question; in the oase of Carter Paoking Co. vs. Mrs. Elizabeth Reinhardt, 13 Court of Appeal Rep. page 463, it was held "where the aooident is the main oause of death, it is immaterial under the Aot whether or not the employee be or be not peouliarly subject to have such aooident befall him or to suffer therefrom more than another differently situated; the sole question being whether the aooident was the immediate oause of the injury."

Also see Myers against the La. Ry. & Navigation Co. 140 La. at p. 937, citing numerous authorities, pro and oon, but the Court finally held the oompany liable.

Also see Arthur vs. Alexandria Lumber Co. 143 La. 307, where an employee was killed whilst he went into a framed building on the premises to take refuge from the rain and was killed by an electric ourrent, the Oourt held that the exception of no oause of aotion beoause there was no allegation that the death was by accident arising out of and in the oourse of the employment, there the oourt did not consider whether or not going into another building would taxks break the employment; the deoislon was on the question growing out of the right of a oause of aotion and the oourt held that no oause of aotion was set out under the aot unless there was the essential allegation that the injured party was there in the oourse of his employment and While performing his duties as suoh.

Also see the oase of Northwestern Iron Co. vs. Industrial Commission, 160 Wis. p. 633, where the Court held that "to protgot himself from undue and unneoessary exposure to the oold was a duty he owed his master as well as himself and it does not follow that he left his master's employment beoause he negligently allowed a standing oar to run into him while he was washing himself."

To this same effect is the oase of Moore vs. Lehigh Talley Railroad 156 N. Y. Supp. p. 620.

In the oase of Bzipsowha vs. Superior Steel Co. 259th Pa. p. 578.

In the Sundines oase, 218 Mass, page 1, also reported in the 105th Northeastern 433, it was held that "an employee employed in a shop does not go outside of her employment merely beoause she leaves the shop for lunoh and that a temporary absence did not suspend the employment and the injury sustained during suoh time arose out of and in the oourse of her employment." & 7^ ó- ■

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the Oourt aquo be and the same is hereby affirmed, with costs of both oourts to be paid by the defendant.

Judgment affirmed,  