
    MRS. THEOPHILE GAUTHREAUX, FOR HERSELF AND HER MINOR SON VS T. D. O'KEEFE, RECEIVER NEW ORLEANS RAILWAY & LIGHT COMPANY.
    NO. 8856
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. SELL, JUDGE.
    
      
    
    MARCH 19, 1923.
   By WILLIAJf A. BSLL, Judge

The plaintiff herein, am har own Behalf as widow and ^or ner minor son, has obtained Judgment against defendant in the tfull amount aooorded her under Section 8, Paragraph 2 (h) of tho Employers' Liability Act of Louisiana. Defendant as appellant oen-oedes before this court the facts of this oase and also agrees as to the correct basis of tho computed liability, if there be any liability. It may be said that the sole contention on appeal is, therefore, upon tho qucstien of law as to whether the accidental Injury causing the death of the plaintiff's husband according to the admitted facts was one arising out of and in the course, of his employment.

The deceased was a conductor e$ the Tiller# line in the employ of the defendant company. His duties required him to leave his heme early every morning in time enough to get his oar out of the Canal Street barn at 4:45 o'clock a.a. His run onded daily at 5:12 p.m. at or near tho corner of Canal and Dauphino Sts., and each evening ho was allowed, under his contract with tho company, an additional time of ton minutes to got to the Canal Street bam and turn in his cash and transfers. .In other words, his time of actual work for whioh ho was aotually paid onded each day at 5:22 p.m. On Juno 14, 1921, the deceased reached tho bam at about 6:50 p.m., made his returns at enoe and proceeding across the switch tracks immediately in front of the barn, ho wont towards the lower side of Canal Street at about 5:50 p.m., far the purpose of catching a Canal Street car going towards his homo. In tho act of boarding this homoward-bound ear of his employer's company he fell beneath ito wheels and was almost instantly killed, about 5:40 p.m. Thus it may be seen from the facts of this ease, that the border lino between tho cones' of employment or non-employment, ef eervioe er non-sOrvioo, is measured by no more than five minntcs of time and ia of such restricted preportiens an may be hardly diaeemible. She sole' defense in this case, however, is predicated upon the contention of law that the five minutes which ticked away fatally for the deceased and propitiously for his employer has precluded the widow and the son from all right of compensation under the Act invoked hy them. The contract of employment between the company and its conductors provides as follows:

"Whenever conductors are required to take their oars at a distance from the harn, or are required to leave their oars at a point other than the barn, they shall be entitled to charge at the regular rate per hour for suoh time as is consumed by the conductor in going to or coming from the barn; it being the sense of this article that where conductors are required to report at the barn at the beginning or conclusion of their runs they shall be paid for all time aotually engaged in the service of the company regardless of where they are required to take or leave their cars.
"All motormen or conductors in regular uniform shall be allowed free transportation on all lines."

There is, of course, no issue in this case involving the question of negligence. We are impelled to the viewpoint ef our learned brother, then a judge of the district court, who, in his able written opinion or reasons for judgment, has said,in part, as follows:

"The contract with the defendant company provides for free transportation for motormen and conductors while in uniform. This .provision is not a mere permission or license, as contended for by counsel for defendant. It is a part of the consideration of the contract. If it was not so provided, and the motormen and conductors employed by the oompany were required to pay when going to and returning from work the usual fare expected of passengers, their compensation under the contract would be increased at least uro tanto to meet .this requirement. This is the inesoapable oonolusion from the mere reading of the contract itself."

We gather from the evidence of this case the particular fact that the work or employment of the deceased required his presence not only at the barn when reporting for work but also at the barn on retiring or withdrawing from work. Had the accident befallen him as he descended from the morning oar depositing him at the barn and before he had mounted his own oar which was to leave the barn at the early morning hour above specified, we cannot see that the situation would have been in any way different from that which presents itself under the facts of this case and upon which defendant relies in establishing its contention that the accident happened at a time when the injured employe was not performing services arising out of and incidental to his employment.

The pertinent clauses of the Act which should he considered in connection with the facts of this case are as follows:

"Every person performing services arising out of and incidental to his employment in the course of his employer's trade, business or occupation in the following hazardous trades, business and occupations: * * *.
"Section 2. * * * Receives personal injury by accident arising out of and in the course of such employment, his .employer shall pay compensation in the amounts and to the person or persons hereinafter specified."

The last clause of the defendant's answer to this suit is framed in the exact language of the first above paragraphs tafeen from the Act and reads as follows:

"That at the time he was killed said Gau-threaux was not performing'any services arising out of and incidental to his employment in the course of his employer's trade, business or occupation."

The clean-cut and sole issue therefore made clear by the pleadings in this case iS/Whether the deceased was at the time of his death performing any services "arising out of and incidental to his employment."

There cannot be found in our jurisprudence more thorough or exhaustive study of the interpretations already given to the above clauses in similar Employer's liability Acts of America and England than that set forth by our learned and recently retired Chie: Justice in the case of Myers v. Louisiana Railway and Navigation Co. 140 La., 937 (74 South., 256). In this cited case,it was the contention of the defendant that while the injury in that case arose "in the course of" the employment, it did not arise "out of" it. In the present case the contention is that the injury at. the time.it ocourri befell the deceased while he was not performing any service either arising out of or incidental to Ms emuleyment. It may be aaia in this case as was said hy Chiar Justice Provosty in the ease of Myers v. L. R. & N. Company as follows:

"However, after vain attempts at formulating some verbal test for determining when the injury has or not arisen’ out of the employment, the courts have oome to the eon-olusion that each case must he determined from its own facts; that the question cannot he solved hy phrases."

In the Myers case it was contended that the accident did not arise out of the employment of the plaintiff for the reason that the injury sustained was of a nature not at all connected with those duties assigned to and being in their nature otherwise performed hy the plaintiff. The oourt found, however, that placing such a narrow construction upon the statute was contrary to the purpose of the lawmaker, and said:

"It ought to he sufficient that the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person #ot engaged in the employment. This is certainly the view that has been taken in street accidents where relief ha3 been allowed in certain cases and not in others."

The deceased in the case before us.under the cireumstanoes surrounding ms departure from the Darn and his attempt to mount the conveyance upon which he had a right to ride, was doing, in eur opinion those things incident to the nature of his employment suob involved a risk that was greater, in its daily necessity for repitition than for persons not engaged in the employment in question. It la to he noted, of course, that in this case the question of negligenoe cannot arise and, therefore, the fact of the deceased having te he daily in and about a place more or less dangerous to anyone, cannot relieve the defendant of a liability which naturally results from a injury befalling one who was immediately doing that act which was reasonably contemplated between the parties to the employment, no matter how negligent the deceased may have been in performing that act involving his retirement from his daily work. The defendant was actually employed when the accident occurred and the full intention •f Rath tho deceased and his employer that the former should daily-report to and withdraw from the almost exact spot in whioh ho was injured, indicates a contemplation on the part of both parties that the employment, if not the actual engagement in work, should have been continuous.

We have examined with oars the authorities specially cited in defendant's brief and stressed by defendant’s oounsel, the oase of McNicol v. Employers' liability Corporation (Mass.), 108 H.E., 697. We findthat the facts in this case show that the plaintiff, MoITioel, was killed as the result of blows received from an intoxicated fellow-employe, while'both were supposed to be engaged in the work of the employer, the bad and dangerous habits of the assaulting follow-worker having been known" to the foreman and other agents of the employer. This case was decided in favor of plaintiff. We find the doctrine enunciated in this case to be quite in accord with and most applicable to the important faots of the case now under our consideration. It was said by the court in this case:

"An injury may be said 'to arise out of' the employment when there is apparent to the rational mind, upon consideration of all the ciroumstances, a casual connection between the conditions under whioh tho work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural inoident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment; But it excludes an injury whioh cannot fairly be traced to the employment as a contributing proximate cause, and whioh comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master ahd servant. It need not have been foreseen, or expected; but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence

The doctrine as above expressed is given approval by the Supreme Court of this State, as shown by the fact that Jn the case of Myers v. L. R. & N. Company, the quotation just made by us is fully citei by the learned Chief Justice in the opinion.

We are af the opinion that tha danger ta which tha dar ceased was exposed was moidental to ene oneractor or tha work in which ha was engaged and that it had its origin in a risk connected with his employment and flowed from his employment as a rational consequence, irrespective of tha fact that ha may or may not have bean negligent in his attempt to aeard tup ear which he intended snoald taka him te his heme., after his day’s work. . Anether authority cited hy counsel for defendant is round iu Williamson v. Ind Aco. Cen., 16 E.C.C.A., 884, (171 Pacific, 797), In this oase « woman undertook to do work whlon she was neither directed nor expected te de and which was peculiarly hazardous and involved the cleaning ef a light snaft ovnneoted with a building, w while employed the woman fell tnreugn a window to her death. The Court in this ease said;

”It has been said .u&t if the m> ef workman whioh resulted in the aooident is one whioh tl' employee would net be expeoted to undertake, or one whioh the employer would net reasonably command, or • expeot, the employee te do, the aooident dees net ’arise tut of*'the employment."

•* cannot see. the application of this oast te the instanoe one, for surely tb- deceased was i»»t expected *e undertake nor did he undertake te do anything outside ef nor contrary te the soepe ef his employment , .

We find tne authorities cited by the judge a aua 4»i*pSr-tiouiarly stressed hy plaintiff's counsel te be peculiarly applicable to une tacos el Obis case, and while chayare authorities fren other “--+.es fcb»~ -”r own. they give forceful endorsement te the ruling of this ssurt in the oase ox carls tins Davis, widow of Prank Whitfield, v. the City of New Orleans. No. 8110, Court of Appeal, as wall as to --»« most recent declamen of our Supreme Court in the esse of Rashel Prevess v. Gheens Realty Ce., 151 La., 508 192 South. 38. in the case of Prevest v. the Realty Co., the rssuo was not made on the point that the aooident had arisen out ex fcha m the course ef tne employer's business. We find from a reading of tilia oasa and particularly from the examination of the pleadinga and the hriefa therein filed that thia contention ia erroneous. In discussing the case the court said:

"There are only two questions in the case, one is a question of fact — whether the death resulted from an accident. The other is « fuestion of law — whether the man was, according to the facts which are admitted, in the employ of the defendant company.at the time of the alleged accident, within the meaninsr of the statute."

In the brief filed by defendants in the case from which we have Just quoted, we findthe fallowing: "The defease set up by the pleadings is that the injured man was not injured during the course of his employment," and this statement is borne out by a review of the answer in the suit, particularly paragraph 4, where the defendant alleges as follows: "Respondent admits that (deceased) had completed his work and left the place of his employment and was on his way to his lodging house, but respondent denies that after leaving his place of employment anything that happened to’ him was in the course it such employment. " HO issues could be plainer nor more similar to each other'' thairpin the cited case and the' case new befere us. In the cited ease, the deceased, working on a sugar plantation, left the sugar house between the hours of 11 and 12 o'clock at night and while walking from the sugar house to Ms lodging mw he was injured by a fall resulting in his death. The next meming all laborers on the planta-tien were t# have been paid eff, it being the end of their season's - work, and heneo it might bo stated that the cited case is not as strong as the one befere us, for the reason that the plantatien hand was injured after his work had permanently ceased, a fact i&ieh did not exist in the instant case. He was going to a bunk where he had the privilege •f sleeping, Just as the deceased in this case was geing te a car which he had the privilege of riding upon. In the cited case, tjif court concluding that the deceased was yet in the employ of the defendant company at tho time of tho aooidont, proceeds to say:

"She manager for the defendant oompany testified, that tho month for which they wars paid had ended at six o' clock that morning, that is, about six hours after the accident had occurred. Prevost was, therefore, not only rightfully on the prémises, hut actually in the employ ef the defendant company when the accident occurred. When an employe is going from his work to his lodging house, on tho premises where he works, he is, within the meaning ef paragraph 2 ef Section 1 of the Employers' liability Act, 'performing services arising out of and incidental to his employment in th course of his employer’s trade, business or occupation.' See authorities cited in Myers v. L. R. & N. Co., 140 La., 938, 74 South., 256."

We are ef the opinion that both the law and the facts in the oase before us Justify a Judgment for the plaintiff and that the conclusions of the, trial court are in every manner correct.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREES that the Judgnent herein appealed from be and the same hereby is affirmed at defendant's costs.in both courts.

JTJDGMEHT AFFIRMED

MARCH 19, 1922  