(67 South. 331)

(No. 19940.)

#### PETERSON v. LOUISVILLE & N. R. CO.

(Jan. 11, 1915.

On Application for Rehearing, Feb. 8, 1915.)

*(Syllabus by Editorial Staff.)*

1. Master and Servant <&wkey;219 — Injury to Servant — Assumption op Risk.

The danger created by a guard rail placed along a railroad track for a useful purpose was assumed by an employ! engaged in railroad construction work.

[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 610-024; Dee. Dig. <&wkey;

2. Master and Servant &wkey;>150 — Railroad Employé — Duty to Warn.

An employ! engaged in railroad construction work was not entitled to special warning in respect to the construction of the track or manner of working, that he might avoid stumbling while engaged, with other employ!s, in pushing upon a railroad bridge a flat car loaded with heavy timbers.

[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 297, 299-302, 305-307; Dec. Dig. &wkey;>150.]

On Application for Rehearing.

*(Syllabus by the Court.)*

3. Appeal and Error &wkey;>833 — Application eor Rehearing — Time.

Under' Act No. 223, p. 341, of 1908, an application for a rehearing comes too late when *461filed on the day the judgment of the Supreme Court becomes final and executory.

[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3214, 3229-3240, 324<L-3246; Dec. Dig. <@¿>833.]

Appeal from Civil District Court, Parish of Orleans; George I-I. Thgard, Judge.

Action by Mrs. Magdalena Peterson against the Louisville & Nashville Railroad Company. Erom judgment for defendant, plaintiff appeals.

Affirmed, and rehearing denied.

Henry W. Robinson and Dart, Kernan & Dart, all of New Orleans, for appellant. Denegre & Blair and Victor Leovy, all of New Orleans, for appellee.

PROVOSTY, J.

Plaintiff’s son, 19 years old, fell under the wheels of a small flat car loaded with heavy timbers, which he and 17 other men were pushing along upon the railroad bridge of the defendant company that crosses Bay St. Louis, and he died the next day from his injuries; and this suit is brought in damages.

This bridge is an open trestle, the top of which consists of the cross-ties, the two rails, and a plank walk on each side between the ends of the cross-ties and the rails. Beginning where it leaves the land, the grade for about half a mile going out is down, 8 inches to the 100 feet at first, tapering to 5 inches. The men were on each side of the car and back of it. Its platform was hip high to them, and there was sitting room on each side of the load. When it reached the downgrade and began moving of itself, the men let go, and some stood back, while others jumped and sat upon it. Plaintiff’s son was on the side, with men in front and back of him. Whether his fall was caused by his attempting to jump on the car, or by his stumbling, the testimony leaves 'uncertain.

[1] The contention is that the place was unsafe, and that the young man was put to work there without warning of the danger. One of the assigned sources of danger we leave out of consideration, as it played no part in the accident. It is that large spikes stuck out of the plank walk, against which a man might strike his foot and stumble. Plaintiff does not pretend that this is what happened to the young man, as there were no such spikes at the place where he fell; but that he must have struck his foot against a certain so-called guard rail laid upon the cross-ties between the plank walk and the main rail, one end of it touching the rail and the other touching, or nearly so, the plank walk.

This guard rail was 12 feet long, and, when plaintiff’s son fell, he had passed that end of it which stood close to the plank walk, and had reached, or nearly reached, the end touching the main rail. At the latter point there was little, if any, danger of his striking his foot against it.

Besides, it was not as the result of negligence that this guard rail was there, but intentionally, for a useful purpose. Hence whatever danger was created by its presence was only such as men engaged in railroad construction work are encompassed with on every side, and against all of which it is not possible for warning to be given. Such dangers as these are incident to the work, and are assumed by the workmen. The accidents that result from them are due to unavoidable circumstances, and not to the fault of individuals.

[2] The plank walk was only six or eight inches wide; and three cross-pieces of the framework of the car extended out to within an inch or so of it. This tended to increase whatever ¿[anger there might otherwise have been. Even so, however, we do not see what particular danger was presented against which any special warning was called for or could have, been given that would have contributed to avert the accident. No instruction, surely, was needed as to the *463manner of pushing the car or of letting it go when it began to move of itself and pushing became unnecessary. Counsel argue the case as if the car, on entering upon the slight downgrade, assumed a sudden speed or lurched forward; but such was not the case; the grade was not such as to cause anything of that hind, and no special warning could have been necessary as to the manner of walking on the bridge. In the latter connection, the learned counsel of defendant well observe:

> “To take a young man out upon a bridge and point out the rails to him and warn him not to stumble over them would be beyond even paternal care.”

And they add, with a touch of pleasantry which perhaps the baseless character of the suit excuses:

> “It would be grandmotherly.”

Judgment affirmed.

On Application for Rehearing.

LAND, J.

[3] The decree was handed down in this case on January 11,1915, and the application for a rehearing was filed on January 26, 1915.

The application came one day too late, under Act No. 223, p. 341, of 1908, which reads as follows:

> “That judgment rendered in the Supreme Court * * * shall become final and executory on the fifteenth calendar day after rendition, in term time and out of term time, unless the last day shall fall on a legal holiday when the delay shall be extended to the first day thereafter not a legal holiday: Provided, that in the interval parties in interest shall have the right to apply for rehearing: Provided further, in the recess of the court, the court shall have the right to dispose, at chambers, of applications for rehearing.”

As January 26, 1915, was not a legal holiday, the decree of the court in this case became final and executory on that day, and the “interval” for rehearings expired on the day previous.

Therefore plaintiff’s application came too late and cannot be considered by the court.