
    No. 289.
    William Bomar vs. Louisiana North and South Railroad Company et al.
    Contributory negligence is the want oí ordinary care and prudence without which the injury would not have occurred.
    It is the employer’s duty to provide suitable appliances.
    If they are defective, and the employé is injured because of the defectiveness, the company is responsible in damages.
    When defective oars belong to another company from which they have been received, the company receiving and using them will be held liable in damages if the injury be owing to their defectiveness.
    The employe will not be held guilty of contributory negligence when it was not shown that he was aware of the defectiveness and he has been ordinarily careful.
    
      APPEAL from the Second District Court, Parish of Bienville. Boone, J.
    
    Young, Drew cfc Stewart and Watkins & Watkins for Plaintiff and Appellee:
    3. A railroad company is responsible for injury resulting from a defective condition of its apparatus when such defect could have been discovered on careful inspection. 2 Woods’Ry. Law, Sec. 300; King vs. Ohio R. R. Co.; 14Fed. Rep. 277.
    
      o, It will be held liable for its negligence, even when the defective car belongs to another company from which it has received it. 4 Am. and IS. Ency. 421; 94 Mo. Rep. 468; 100 N. Y. 462.
    
      ?>. The master is responsible to his employe for damages resulting from defects in the apparatus or machinery they are required to work with. Woods’ Master and Servant, Sec. 675-8; 87 An. 634, 653; 41 An. 964.
    4. The law imposes the duty on the master of furnishing reasonably safe and suitable implements for the business, and makes him responsible for such damages as result from his failure to perform this duty. 3 Woods’Ry. Law, .Sec. 370, et seq; 8 Allen Man. 441; Van Amburg vs. R. R. Co., 37 An. 653; Towns vs R. R. Co., 37 An. 634; 4 Am. and E. Ency. 417-26.
    5. The conductor is the superior of the engineer, and has authority over him. Van Amburg vs. R. R. Co., 37 An. 651; 112 TJ. S. R. 377; Towns vs. R. R. Co., 37 An. 630.
    O. The master is required to furnish a sufficient number of hands — and these with sufficient skill — to carry on the business safely. Johnson vs. Ashland Water Co., 5 Am. St. Rep. 243; Flike vs. Boston, etc., R. R. Co., 53 N. Y. 549, 554; 13 Am. Rep. 545; Hayes vs. Western R. R. Co., 3 Cush. 270; Mad River R. R. Co. vs. Barber, 5 Ohio Rep. 541, 563; 67 Am. Dec. 312; 29 Am. Rep. 97; Jones vs. Old Dominion Mills, 3 Am. St. Rep. 92; Pierce on Railroads, 372, note; 85 Am. Dec. 720; 02 111. 401-
    7, It is primafacie negligence on the part of themasterto attemptto operate dangerous machinery with an insufficient number of hands. 3 Woods’ Ry. Law, Sec. 381; Jones vs. Old Dominion Cotton Mills, 3 Am St. Rep. 105; Pierce on Railroads, 369; 17 Wall. 553.
    9.It is not negligence on tlxe part of a brakeman to rush between the cars to make a coupling without stopping to examine tlie drawheads to see if they are in a safe condition. King vs. Ohio R. R. Oo., 14Feb. Rep. 277; 4 Am. andE. Ency. 428 ; 3 Woods’ Ry. Law 1457; Woods’ Master and Servant, Sec. 330; Towns vs. R. R. Co., 37 An. 630; 38 An. 777; 4 Am. and E. Ency. 34.
    9. Burden of proof is on defendant to show contributory negligence. Bagley & Oo. vs. Jenevon, 24 An. 288; 4 Am. and E. Ency. 16-18; Woods’ Master and Servant, 777-8.
    10. Special plea of contributory negligence waives the general issue and restricts defendant to the proof of his special defence. Sherman vs. City of New Orleans, 18 An. 660; 3 An. 326; 9 An. 119; 19 An. 484; 22 An. 75; 20 An. 306; 32 An. 966; 31 An.81; 14An.54,869; 6 N. S. 226; 3 N. S.75; IN. S. 172.
    11. In Prn'i Materia — Am. and E. Ency. of Law, Vol. 4, p. 18, note 1: “There can be no contributory negligence, except when the defendant has been guilty of neg ligence to which the plaintiff’s negligence could contribute.”
    12. It is the master’s duty to provide suitable appliances (Am. and E. Ency. o Law, Vol. 4, p. 62, note 1), also to inspect and repair them (p. 63, note 1).
    
    
      
      John A. Richardson for Defendant and Appellant:
    The plea or allegation of contributory negligence is not a special defence.
    A special defence is one set up in avoidance or extinguishment of an obligation admitted or proved to have once existed. 31 An. 84; 6 L. 457; 9 L. Ill; 5 R. 486.
    When an employe is out of his place, the relation of master and servant no longer exists. Woods’ Ry. Law, p. 1490.
    'The only test by which it can he determined whether care has been used or omitted in any particular ease is the test of negligence in general.
    There is negligence where the party injured “where under all the circumstances and surroundings of the case something lias been done or omitted that ordinarily careful and prudent persons so situated would not have done or omitted to do.” Am. and IS. Ency. of Law, Vol. 4, p. 22, See. 9.
    
      ■“ When the defect or injurious contrivances is equally known to or alike open to the observation of both employer anti employe, both are upon common ground and the employer is not liable for the resulting injury.” Am. and E. R. R. eases Yol. 28, pp. 308, 382, 546, and notes, 397; 11 Am. and E. R. R. C. 644.
    “ Brakesmen and other persons employed by a railroad company within the freight stations and the yards of the company, where they accept the employment, assume the risks arising from s * * the construction of the cars used by the company, and they are bound to exercise the care and caution which theperils of the business demand.” Am. and IS. 8; Am. and E. 98.
    A servant or employe assumes the risk of all dangers in his employment however they may arise, against which he may protect himself by the exercise of ordinary observation and care. 5 Am. and E. 508; 21 Am. and E. 637.
    If the instrumentalities furnished by the master for the performance of the servant’s duties are defective and the servant is aware of this, though not aware ■of the degree of defectiveness, he is bound to use his eyes; and if he fails to do so, he can not charge the consequences upon his master.” 2 Am. and E. R. R. c. 144; 17 Am. and E. R. R. C. 592; 12 Am. and 15. R. R. O. 217; 11 Am. and 15. R. R. C. 201; 8 Am. and E. R. R. C. 184, 225.
    
      “ To recover damages for injuries from a railroad company it is necessary for plaintiff to prove that the accident in consequence of which the injuries were received was caused by the negligence of the railroad company, and that the plaintiff was not guilty of any negligence which created or aided in the accident.” 40 An. 787 ; 31 An. 490.
    A person can not recover for an injury to which he has contributed by his own want of ordinary care. 39 An. 796.
    “ When one of the two persons either innocent or mutually negligent must suffer, the one who knew of the cause which occasioned the injury, and who could have avoided it and did not do so, must hear the loss.” 34 An. 180; 33 An. 154; 32 An. 615.
    If aparty does not act as aprudent and careful person should do, he must bear the consequences. Woods' Ry. Law, p. 1461, Sec. 372.
    “ Cars received from other roads for transportation, the company has a right to assume that they are in proper repairs and condition.” 37 An. 630, Towns vs. V., S'. & P. R. R.
    Where the employe knows that no suitable regulations have been adopted and that a custom to violate them has grown up by remaining in the service, he is regarded as waiving the defects and assuming the risk incident thereto. Woods’Ry. Law, 3 Vol., p. 1488, Sec. 382.
    
      To maintain an action by a servant against a master for an injury resulting from defective appliances, two elements must concur, viz: Fault or knowledge on the part of the master; innocence of fault or ignorance of the danger on the part of the servant. 41 An. 500, Carry vs. Sellers & Co.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff moves to dismiss this appeal on the ground alleged that it should have been made returnable to this court at this-place last year; also, on the ground that this court was opened on the second Monday of October, 1890, and each day subsequent to. and including the 29th day of October, 1890, at which time the transcript was filed.

The appeal was granted on the 17th day of October, 1889, too late, to be made returnable to this court’s session last year.

The judicial day of the present session commenced on the 2d inst. From the second Monday to that time the court was opened and closed by the sheriff as duly directed. They were not judicial holidays.

This objection has been passed upon in a number of cases. It no. longer admits of discussion. The appeal was filed in time; the motion is overruled.

On Bill of Exception to Introduction of Evidence.

The defendant offered to prove that plaintiff was not in the employ of the defendant company at the time he was injured.

The object of the evidence was in support of defendant’s allegation in his answer. The plaintiff objected to the introduction of the evidence on the ground, viz: “The answer being a general denial, followed by a special plea of contributory negligence, such plea waives the general issue.”

The court maintained the objection.

It is held that there can be no contributory negligence on the part-of a plaintiff, except in cases where there has been negligence upon the part of defendant. Contributory negligence exists only when the negligence of both parties has combined and concurred in producing the injury. Am. and En. Encyclopedia of Law, Yol. 4, p. 18. In alleging contributory negligence, defendant admits that there is an issue of negligence between it and the plaintiff; not between plaintiff and a third party.

The defendant has accepted the issue as presented and has chosen in its defence to plead contributory negligence.

On trial, evidence offered for the purpose of showing that another was the party who should be sued was properly excluded. The railroad’s ownership was not at issue.

On the Merits.

The present action is brought to recover damages for an injury to plaintiff, inflicted by the cars in the use of the defendant company and resulting in permanent injury to his right hand and arm.

The facts are substantially:

The plaintiff was in the employ of the defendant company, which owns and operates a railroad a distance of eighteen miles, from Gibbs to Homer.

It received its cars from the Vicksburg, Shreveport & Pacific R. R. Co., and made up its trains on the latter’s side track.

At the Gibbsland junction the two companies had the same depot agent and freight clerk, who had control of the switches, side tracks,, freight cars and freight of both companies.

The employés in the movement and transfer of freight and cars, were under the authority of this agent.

The trains of the company were under the control of the conductor.

On the 8th day of October, 1888, the plaintiff attempted to couple-two cars.

The drawhead of one of the approaching cars being out of repair and forced under the car, in attempting to direct the link into the drawhead of the stationary car, his hand was caught between the-bumpers and severely injured.

He was employed as locomotive engineer in the service of the defendant.

The road having been lately constructed and being a short roady owned by a company recently organized, the number of employés; was limited, and at times an officer or hand was called upofi to do-other work than that belonging to his charge.

The conductor testifies that on the morning the accident occurred,, being sick, he asked the plaintiff to make up the train for him.

This request, direction or order, as the case may have been, was; complied with. There was a brakeman, but no inspector of cars.-

It is not an easy matter to determine what were the duties expected of the officers of this road.

The superintendent at times acted as conductor; the engineer as brakeman, the fireman as engineer, and the conductor frequently performed that duty. It was often unavoidable.

Immediately after the plaintiff had assumed the duties of the 'conductor he attempted to make the coupling, and met with the distressing and painful accident for which damages are sued.

In the haste of the moment, when there was but an instant for thought, seeing that the draw head had been forced under the car, he attempted to pull it to its proper place.

The spiral spring being broken, the drawhead was heavy; it had no elasticity, and could not in an instant be drawn out.

If the spring had not been out of repair it would ha^e been possible tbc pull it out and complete the coupling and avoid the accident. The ibrakeman, evidently not a man to arrest attention, said, to the plaintiff, just previous to the accident, that he had attempted to .make the coupling, but had failed.

'The plaintiff directed him to get on the roof of the car and loosen the brakes.

It is-not stated that the brakeman informed the temporary conductor that the drawhead was out of repair.

.He had failed, that .was all.

Not knowing of the broken spring, the conductor hastily advanced .between the cars. There was a possibility of his being crushed to ■death if the drawhead continued ineffective.

These cars, in coupling, may telescope or collide without check by the buffers, if it happens on account of the inequality in the height of the car that one buffer is above the other. It became necessary to act at once in coupling. It is admitted by the defendant that the ■appliance was defective, that is, that the drawhead of one of the cars ’was crippled.”

It only remains to ascertain whether or not the plaintiff was guilty ■of contributory negligence.

He only complied with the directions of those superior in authority to him. The superintendent said to him that he must obey the (.orders of the conductor. The latter directed him to take charge.

This order he complied with. The conductor says it was a request. A request from one superior in authority is equal to a command.

When the plaintiff assumed charge he was pressed for time. The-hour for leaving, as fixed by the time table, was approaching, and. there was barely time to make up the train for the departure. That there was haste is evident, but it does not appear that there was imprudent haste.

The defendant company had a time table. On short notice the employés were expected to have everything in readiness to leave, in accordance with the time fixed.

The employé naturally hastened in his work, thinking that the appliances were in order. If they were not, his knowledge will not be presumed..

The defendant company should have had an inspector, or, at any rate, some one in charge to prevent the imposition of defective cara upon employés. Pierce on R. R. 872'.

This duty of inspecting the cars having been overlooked or neglected, it can not be presumed that the plaintiff was aware of the-, defect.

The employés were required to run these cars on time and satisfactorily. The employer is responsible to them for damages resulting-from defect. 37 An. 634, 653; 41 An. 964.

The superintendent testifies that he notified the plaintiff, if it. came within his knowledge or notice that any defective cars were.being put in his train, not to take them.

He also states “that it was part of the duty of the conductor, by his special instructions, to -inspect all cars on the road.”

As to the first part (of these instructions) he was to act in case it came to his knowledge or notice.

There is no evidence showing that he ever had such knowledge or-notice. As to the second, he was not the conductor, except temporarily on the day of the accident.

This defective car was received from another company and' placed for use before he became temporary conductor. He can not be held responsible for acts of others of which it is not shown that he had any notice.

Having concluded that the plaintiff is not guilty of contributory-negligence, we now have to fix the amount of damages.

We can not agree with the jury in this case.

The usefulness of plaintiff’s hand is not entii’ely impaired.

His suffering has been great; nevertheless justice requires where the negligence of the company has not been wanton and malicious, that damages allowed be within reasonable limits. Plaintiff is 43 years of age. His salary at the time he was wounded was $60 a month. It is not probable that it would have increased much. His hand and arm are not completely disabled, although badly injured. He has had charge of an engine since the injury with aid furnished him for the heavy work. The defendant company has been organised not long since, evidently with limited means. The amount allowed as damages is not a profit nor an advantage. It is fixed at what is deemed to be reasonable under the circumstances.

After considering the evidence carefully, we fix the amount of damages at $2000.

It is therefore adjudged and decreed that the verdict and judgment of the court a qua be amended, reducing the amount from $15,000 to $2000, and that as amended the judgment be affirmed without intei’est, except 5 per cent from date of the amending judgment.  