
    (86 South. 215)
    No. 22457.
    AUTHEMENT v. LOUISIANA WESTERN R. CO.
    (Feb. 2, 1920.
    On Rehearing June 30, 1920.)
    
      (Syllabus by Editorial Staff.)
    
    1. Master and servant <&wkey;228(I) — Negligence solely that of injured employe bars recovery under federal act.
    While, under federal Employers’ Liability Act (U. S. Oomp. St. §§ 8657-8665), contributory negligence is no defense, there can be no recovery where the negligence was solely that of injured servant.
    2. Master and servant <&wkey;247(3) — Negligence in placing car held that of conductor, warranting recovery under federal act by negligent brakeman.
    Where a brakeman, who had cut out a car, notified the conductor that it was too close to other tracks, but the conductor failed to change it, the conductor must be deemed guilty of negligence, the brakeman deferring to his superior, and recovery by the brakeman, who came in contact with the car during switching operations, cannot be denied on the ground the negligence was solely that of the brakeman.
    3. Master and servant &wkey;>222(2), 245(8) — Principle of “contributory negligence” within federal act, instead of assumption of risk, held applicable to brakeman.
    Where a brakeman, having switched a car on a siding, called the conductor’s attention to the fact that it was too close to the other track, the conductor telling him to leave the car where it was, and on the following morning, while riding on another car, without looking towards the stationary car, was brushed off, he did not assume the risk of injury from contact with the stationary car, though he forgot the danger and failed to guard against it, but he was guilty of contributory negligence, within the federal Employers’ Liability Act (U. S. Oomp. St. §§ 8657-8665), if his conduct was not justified by his duty to obey the orders of his superior.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Contributory Negligence.]
    4. Negligence <&wkey;>IOI — Brakeman guilty of contributory negligence held entitled to an award of $3,000.
    A brakeman, 33 years old, earning $100 a month, and guilty of contributory negligence, held entitled to an award of $3,000 for injuries rendering him unable to do the active severe work done by one in that vocation.
    Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis; Jerry Cline, Judge.
    Action by Felix Authement against the Louisiana Western Railroad Company. From a judgment for defendant, plaintiff appeals.
    Judgment annulled and reversed, and judgment rendered for plaintiff.
    Robert R. Stone, of Lake Charles, and John L. Kennedy, of La Fayette, for appellant.
    Denegre, Leovy & Chaffe, of New Orleans, and Pujo, Liskow & Martin, of Lake Charles, for appellee.
    This action is brought under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) by a head brakeman in the employ of the defendant company, who was seriously injured September 3,1915, while in the course of his employment. He was climbing a ladder on the side of a moving freight car belonging to defendant, and was brushed off the ladder by coming into contact with a stationary car, which was in too close proximity to the track on which the freight train was moving. He was 33 years of age at the time of the accident, robust and in good health, married, with one child, and was earning $100 per month. He asked for judgment for $15,000 actual damages.
    Defendant denies negligence on its part, alleges contributory negligence on the part of plaintiff, and also the assumption of riski
    The evidence in the record shows that the plaintiff was, and had been for several years, in the employ of the defendant company as switchman and. conductor; that at the time of the accident he was engaged in the ordinary duties of his position of brakeman. It shows that on the evening previous to the accident plaintiff was directed by his superior to switch some cars onto the side track, and tha't it was one of the cars so switched by plaintiff that brushed against the ear on which plaintiff was riding on the following morning. Plaintiff testified that he called the attention of the conductor, when the stationary cars had been placed on the side track, to the fact that they were too close to the other track. But he admits that he had so placed them, and he was negligent in so doing. It further appeared in the evidence that if plaintiff had been looking forward, towards the stationary car which he was approaching, he might have avoided the accident by getting closer to the car on which he was riding, and that he would not have been brushed off.
    The argument of counsel for the defendant is that plaintiff might have known danger would arise from the placing of cars in too close proximity, and therefore he assumed the risk of such danger, and by proper precautions on his part he might have avoided the accident.
    Plaintiff was rendered unconscious by the violence of the accident, and he was taken to a hospital, where he remained the greater part of two months. The hospital physicians were not produced as witnesses, but two other reputable physicians, one of New Orleans and the other of Lake Charles, who saw plaintiff some months after the accident, testified that he had evidently suffered much pain, and was, at the time they saw him, still suffering. They testified that one of his legs was three-quarters of an inch shorter than the other, that he would always walk with a limp, and that all spinal motions seem to be slightly limited by pain or the fear of pain; there was some tenderness over the lumbo-sacral and right sacral iliac joint, and that plaintiff will hardly be able to do work requiring quickness, agility, and physical strength, • and that he would never have the full use of his body again. Plaintiff testified that he had not been able to do hard work up to the time of the trial, 16 months after the time of the accident.
    The Supreme Court, on the-original hearing, held that, while the evidence is to the effect that plaintiff will hardly be able to resume his vocation as a brakeman, or do the very active and severe work done by one of that line, there is nothing in the evidence to indicate that he will not in time be able to resume ordinary labor, which would be quite as remunerative as that of brakeman, and as plaintiff appears to have been negligent, and therefore responsible in a measure for the accident which befell him, he should be allowed $3,000 damages, and it was therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff and against defendant for $3,000, with interest from judicial demand, and for costs. A rehearing was granted, and thereafter the following opinion was handed down by the Court:
   O’NIELL, J.

A rehearing was granted in this case for further consideration of the question whether plaintiff’s negligence, in leaving the cut of cars too close to the main line, was the only negligence in the case. Although, under the federal Employers’ Liability Act, proof of contributory negligence on the part of an employé does not bar his right to recover damages for an injury caused by negligence on the part of an officer or other servant of the defendant railroad company, an employé cannot recover damages for an injury resulting from negligence, if his was the only negligence in the case.

In the case before us the. conductor in charge of the train, whose orders the brakeman had to obey, directed him to leave the cut of cars where they were, on the house track, after the.brakeman had expressed his doubt whether the last car in the cut was far enough from the main line to allow trains to pass safely. The brakeman, therefore, in leaving the ear too close to the main line, was merely deferring to the judgment of his superior, in obedience to a rule of the railroad company. The officers of the company would place the responsibility for such negligence, not upon the brakeman, but upon the conductor, who directed the switching of the cars. Our conclusion is that the conductor was at fault in this case, for failing to see that the cut of cars on the house track was placed far enough from the main line.

The doctrine of assumption of risk is not appropriate t.o this case. The plaintiff’s forgetting the danger, or failing to guard against it, was not a deliberate assumption of risk. It was contributory negligence, if in fact it was not justified by the duty, which the brakeman owed, to obey the orders and act upon the judgment of his superior.

The decree heretofore rendered by this court is now reinstated and made the final judgment herein.

MONROE, C. J., takes no part.  