
    (76 South. 817)
    No. 21354.
    DENDY v. HUIE HODGE LUMBER CO., Limited.
    (June 30, 1917.
    Rehearing Denied Nov. 26, 1917.)
    
      (Syllabus by the Oourt.)
    
    1. Master and Servant <&wkey;101, 102(1) — Appliances and Place eoe Work — Duty as to Partlallx Disabled Servant.
    Where a master employs a servant who is partially disabled and whose physical condition and inexperience are well known to him, the more important becomes his duty to provide such servant with safe appliances and a safe place to perform the work for which he is employed.
    
      (Additional Syllabus by Editorial Staff.)
    
    2. Damages &wkey;? 131(2) — Personal Injury — Excessive Damages.
    A verdict for $2,000 awarded a servant for an injury to his leg, resulting in much suffering and treatment, and a stay in a sanitarium and requiring possibly a year for recovery, was not excessive.
    Appeal from Eifth Judicial District Court, Parish of Jackson; Cas Moss, Judge.
    Action by Jesse L. Dendy against the Huie Hodge Lumber Company, Limited. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Friedrichs, Moise, Barksdale & Barksdale, of New Orleans, and Samuel Barksdale, of Farmersville, for appellant. W. L. Bagwell, of Oak Grove,’ and J. Rush Wimberly, of Shreveport, for appellee.
   LECHE, J.

Plaintiff’s demand is for $12,-648.50, damages alleged to have been suffered by him as a result of personal injuries received while working in defendant’s sawmill, located at Hodge, in the parish of Jackson. 1-Iis cause of action arose in March, 1914, before the Employers’ Liability Act was adopted in this state, and it is brought under article 2315, C. C.

We gather the following facts from the record: Plaintiff was a cripple, his disability resulting from injuries which he had sustained in his left hip and his left ankle; the last one of his injuries having been received while in the employ of defendant. His physical condition was well known to defendant when about the month of November, 1913, he was again employed by the latter to do work which was considered within his ability, and not too difficult for him to perform in his weakened physical condition. Plaintiff’s brother, J. R. Dendy, was at the time in charge, as engineer, of an engine in defendant’s sawmill plant, and plaintiff was employed to work under his said brother in the engine room to start and stop this engine and to attend to its proper lubrication. After receiving for a week or more proper instructions from his brother, he was then left to perform by himself the duty for which he had been engaged, and J. R. Dendy, his brother, was assigned to additional other duties in close proximity.

Plaintiff continued in this occupation until March 19, 1914, when in descending from a platform called a “pillow box,” elevated about ten incb.es above tbe engine room floor, bis right foot slipped, and in falling down to tbe floor bis left disabled foot came in violent contact with tbe brick wall of tbe engine room, causing, in tbe plaintiff’s own language, bis left foot to “break aloose from bis leg.” Plaintiff bad mounted upon tbis pillow box in tbe performance of bis regular duty, in order to oil a “tail box” wbicb-was running bot and wbicb needed frequent attention. It is not questioned that plaintiff, at tbe time of tbe accident, was performing bis duty in a careful manner. But owing to the slippery condition of tbe floor, upon wbicb a quantity of oil and grease bad accumulated through drippings from tbe engine, bis right foot, the'only one which could support tbe momentum of bis body as be descended, instead of remaining where be had placed it, shot away from under him, and be fell, with tbe unfortunate result above stated.

As a consequence of bis injury, plaintiff suffered a good deal, remained under treatment near bis place of employment for over two months, and also spent five weeks or more in a sanitarium in tbe City of Shreveport. When tbe case was tried, in March, 1915, be bad not yet recovered sufficiently to work, and could only go about on crutches. Dr. Began, who attended and treated plaintiff while be was in tbe Shreveport sanitarium, stated that in bis opinion it would take seven or eight months, and perhaps one year, before plaintiff would entirely recover from tbe injury for wbicb be claims damages in tbe present suit.

We believe that tbe proximate cause of plaintiff’s injury was tbe slippery condition of tbe floor upon wbicb be bad to descend as be got down from tbe “pillow box,” and tbe pivotal question in this case is, then, whether that constituted negligence attributable to defendant.

An unsafe floor in an engine room is not incidental to tbe trade or occupation of a mechanical engineer and bis subordinates whose duties confine them within such engine room, and it would seem under tbe general rule that, unless there is an express agreement to tbe contrary, tbe duty of keeping such floor in a safe condition devolves upon tbe master, and not upon tbe servant. A good deal of testimony was elicited from the witnesses upon tbe subject, and there is such divergence of opinion among them in regard to tbe general custom in sawmills and relative to whether there was any express understanding or agreement in this particular case, as to whose duty it was to keep tbe floor free of surplus oil and grease, that it is difficult to say from such testimony upon whom the duty devolved. But tbe testimony of Mr. Boss, foreman of defendant’s mill, seems to furnish an answer to that proposition when be says that such duty rested upon tbe engineer, J. B. Dendy, under whom, be adds, tbe plaintiff was working. Becord, p. 72. J. B. Dendy was tbe chief engineer and a superior over plaintiff, whose inexperience and disabled physical condition were well known to bis superiors and employers, and it follows that tbe fault and negligence of permitting tbe floor upon wbicb plaintiff was compelled to work to become unsafe is imputable to the defendant.

Again, according to the testimony of J. B. Dendy, it seems that it is a custom in sawmill engine rooms to place a wheelguard next to tbe engine, and although such a fixture bad nothing to do with plaintiff’s fall, that if there bad been a substantial wheel-guard in defendant’s engine room plaintiff could have used it by placing bis band on it to support his body while descending from tbe pillow box, and thereby have avoided tbe fall wbicb caused bis injury.

Our opinion is that there was negligence on tbe part of defendant, and that plaintiff is entitled to recover. .

The district court rendered judgment in favor of plaintiff for $2,000, less $184.25 advanced to him by defendant, and, believing that this award is justified hy the facts and law of the case, the said judgment is affirmed at the cost of defendant and appellant.  