
    (79 South. 868)
    Nos. 21210 and 21833.
    FISCHER v. WELLS FARGO & CO. EXPRESS et al.
    (June 29, 1918.
    Rehearing Denied Nov. 4, 1918.)
    
      (Syllabus by Editorial Staff.)
    
    1. Landlord and Tenant <@=>165(4) — Injury to Tenant’s Emeloyé — Liability.
    A lessor was not responsible for injury to employe of tenant from the falling of a stepladder nailed to end of a platform, where ladder was no part of leased premises, and was not thereon when leased, or thereafter placed there by any officers or employés, or known to any officer of lessor.
    2. Master and Servant <@=>106(1) — Personal Injury — Safe Place for Work.
    Express company, whose leased premises included a platform, etc., and which furnished another safe, convenient, and intended, entrance and exit for its employés, was not liable to employé, injured from fall of stepladder nailed to end of platform where there was no invitation to use it as an exit, and it was not furnished or placed by or with consent of company’s officers or ■ superior servants.
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    Action by Albert G., Fischer against the Wells Fargo & Co. Express and the Illinois Central Railroad Company. Judgment for plaintiff against the Wells Fargo & Co. Express, and in favor of defendant Illinois Central Railroad Company, and plaintiff and the Wells Fargo & Co. Express appeal, and on plaintiff’s death his legal representatives prosecuted his appeal.
    Judgment for defendant Illinois Central Railroad Company affirmed, and judgment against Wells Fargo & Co. Express annulled and suit dismissed.
    Johnston Armstrong, of New Orleans, for appellant Wells Fargo & Co. Express. John J. McCloskey and Malcolm J. Taylor, both of New Orleans, for appellant Fischer. Lemle & Lemle, of New Orleans (Blewett Lee and R. V. Fletcher, both of Chicago, 111., of counsel), for appellee Illinois Cent. R. Co.
   O’NIELL, J.

This is an action for damages for personal injuries. A stepladder that was nailed to the end of a platform, on which the plaintiff worked, came loose and fell when he stepped upon it, and he suffered serious injuries by the fall. The express company was the plaintiff’s employer. The railroad company was the owner and lessor of the premises occupied by the express company, where the accident occurred. The action against the express company is founded upon the doctrine of responsibility of the master for failure to provide a safe place of employment for the servant; and the action against the railroad company is founded upon the provisions- of the Civil Code, to the effect that the owner of a building is responsible for injuries resulting from his failure to keep it in repair. Judgment was rendered against the express company for 87,500; the demand against the railroad company being rejected. The plaintiff and the express company both appealed. Thereafter the plaintiff died, and his legal representatives are prosecuting the appeal taken by him.

There is no doubt or dispute about the important facts of the case. The platform from which the plaintiff stepped and fell was about four feet high; the top of the ladder being a few inches lower. The approach from the street to the platform was by way of an incline, intended apparently for both pedestrians and wagons. A railroad track extended along the opposite side of the platform and into a private park of the railroad company, which was not leased to the express company. The end of the platform, on which the stepladder was nailed, also abutted on the private park. The employés of the express company were neither forbidden nor expressly permitted to go through the private park to and from their work, and they generally used that route. Some of the railroad employés, working on or about the private cars in the park, also went to and from their work by way of a paved walk leading to tbe premises occupied by the express company. As a matter of convenience, therefore, some one nailed the stepladder to the end of the platform, and it had been there, used habitually by employés of the express company and of the railroad company, for several months before the accident. No one who testified in the case knew who had put the ladder there. ■ It has the appearance of a discarded one of the stepladders used by porters on passenger coaches; and the supposition of a number of the witnesses was that one of the employés of either the railroad company or express company nailed the ladder to the end of the platform as a matter of convenience to himself and other employés. It was in an obscure place, beside some shrubbery; and no officer of either company, nor employé having greater authority than the plaintiff had, knew the ladder was there. The plaintiff’s work was to load and unload express ears placed beside the platform. He had been working during the night before the accident, and finished a few minutes before 6 o’clock in the morning. The route to his home was about 50 or 75 feet shorter through the park than by way of the street; and, as was his custom, he intended to take the shorter route. When he stepped from the platform to the top step of the ladder, the nails that held it to the end planks of the platfrom gave way and it fell to the ground with him. There is some testimony to the effect that the' boards where the ladder was nailed had rotted; but that is contradicted, and the most plausible theory, from the evidence before us, is that the ladder was not nailed securely enough for the nails to hold.

The railroad company is not responsible for the accident, because the ladder formed no part of the leased property, and was not even on the premises when the lease was made, and there is no proof that it was put there afterwards by any officer or employé of the railroad company.

Nor do we find any basis for the judgment against the express company. As far as the evidence shows, the ladder was not furnished nor put in place by or with the knowledge of any officer or superior servant of the express company. The latter furnished a safe and convenient way for the employés to go to and from their work. That was by way of the incline extending to or towards the street, and that was the proper route — the only route provided or intended— for the employés to go to and from their work. There was no invitation, express or implied, for any employé of the express company to go through the private park of the railroad company; hence no duty, on the part of the express company, to furnish a safe means of getting down from the platform into the park.

The judgment in favor of the railroad company is affirmed, and the judgment against the express company is annulled, and the suit dismissed, at the cost of the plaintiffs.  