The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1851-01-29
Supreme Court Of Louisiana.

ELIZABETH HuBGH Us. The CARRoLLToN RAIL
ROAD CohPAN1. Appeal from the FIFTH Dis
tr'cf Court Of New Orlsans.
TIE death Of human being cannot b tn: ground 9f
such .ctien., they cannot b maintained. ''-'
and In whs5s @ ws ID
ajpsd and DO not exist s y tho Common law
that actions @ sns %
kosT j., delivered the opinion Of the Court
The plaintiff alleges that her late husband, Jacob
Hubgh, was employed at monthly salary by the
defendants to manage one Of their locomotive steam
engines the boiler OF which, from age and great
defects, was unfit for use. That the said boiler
ploded while her husband was in the discharge of
his duty, killing him instantly, and that the i'm
mediate cause Of his death was the gross negli-
gence Of the defendants in failing to provide safe
boiler for the engine.
The plaintiff AYERS her destitute condition in con.
sequence Of the death of her husband, and claims
$4,000 damages, to be equally divided between
her and her children.
The defendants filed peremptory exception,
that the petition sets forth Of action and
in case the exception was overruled they answered
by general denial, and an averment that If there
was any fault or negligence it was that Of the de-
ceased, and not theirs.
The exception was overruled, and the case was
tried
In LIST Cushng's Massachusetts Rep p. AIS,
case similar to the present, the rule of the Common
Law was affirmed; and the Judge being Of opinion
that If the facts stated were proved they would not
entite the plaintiff to recover. A verdict was en-
tered in favor of the defendants.
ln England, of late years, this omission has been
supplied by statute in a limited class of cases.
and 10 Victoria C. 80
1t is urged that under the Civil Law the present
action can be maintained But the plaintiffs coun-
eel have not favored us with any authority from the
Roman or Spanish Law sustaining thelposition they
assume On the contrary, it is general rule un
der those systems, that actions for personal injuries
are strictly personal. "a Pothier Pandeces p. 279,
Law - Partida, Tit, Is. law 3.
1t Is further urged that under article 1894 Of
Code, every act whatever of man that causes dam.
age to another, oblges him by whose fault it happen.
edto repair it; thatus article has enlarged the
dies given by the former laws, in of damages
arising from torts, and that the present action
should be maintained under it.
1t cannot be denied that the commentators of the
| same article in the Napoleon Code, seem to favor
| that opinion; and that the Court of Cessation has
adopted 1t In two instances. Great our Difference
is for that enlightened tribunal, are unable to
adopt their conclusions The dispositions of article
22H are found in the Roman and Spanish Laws.
So far from being new legislation, that article en-
bodies general principle old the science of
jurisprudence itself; and it must still be understood
with the limitations affixed TO it by the Jurispru
dence of Rome and of Spain. Domdt Lois Ciuiles.
Tit. Damages causes par de fautes. Page $50,
paragraph l.
But if the action could be maintained there are
| other grounds upon which the plaintiffs cannot
recover.
Conceding that the deceased was entrusted with
the repairing OF the boiler and that this de-
| voved upon the engineer Of the corporation, some
OF the witnesses have testified that the defects of
| the boiler were such as to be plainly visible the
outside. If SO, the deceased could not be ignora mt
of the existence Of those defects Notwithstanding
this knowledge he continued to run the engine,
keeping steam, as it is shown, much higher than
/ he was instructed to do, or than would have been
safe even with sound boiler. After thus wanton-
y rsking his own life and those Of the passengers
in the train, it is clear that he could not
damages himself, If he was alive, for any bodily
| injury sustained by the explosion. The doctrine of
the Court of Cessation in the cited from Sirey
/ that although the man who was killed in duel,
| could not, if he had only heen wounded, have re-
I covered damages for the injury because he had ex
posed himself to the risk by which he was disabled
his widow could recover damages after he had been
| killed, will not bear the test of examination.
Ia a pecunary point of view, wound which
| would have rendered the deceased in this case
| charge to his family during his whole life, would
| have inflicted on them greater injury than his
| death. The decision relied on was undoubtedly
made to discourage duelling. In that sense it may
| have been considered good action, but we
compelled TO say bad judgment 81 Sirey 529.
II, on the other hand, the defects which rendered
the boiler unsafe were not visible, and we believe
they were not there is another ground still more
| conclusive. The deceased a servant of the
corporation, and had charge of one of the ocomo-
lives. The engineer, another servant Of the cor
poration. had charge of the keeping the locomotives
and their boilers in proper state of repair. As
general rule master is not liable to the servant
for damages resulting from the negligence of ano-
ther. In order to make the master liable in such
| case it is necessary to prove that the persons
.ected by him were habituay careless or unskill-
full. Priestly vs. Fouler, 3; NJ and w. Is.
The deceased and the engineer were engaged in
a common service, the duties of which imposed
certain risks on each of them and in case of neg
gence on the part Of the engineer, the deceased
knew that, that negligence was that of his fellow
servant and not of the defendants. He knew
when he engaged in this service, that he was ex
posed to the risk Of injury, not only from his own
want of skill or care, but also from the want of it
m the part of his fellow servant; and he must be
| supposed to have contracted on the terms that,
between himself and the defendants, he would run
that risk. 1t is the implied agreement that ey-
cludes the case from the operation of Art. 2499
The principle is, that servant, when he engages
| to serve master, undertakes as between him aud
his MASTER to run all the ordinary risks of the
vice, and this includes the risk of negligence the
part of fellow.servant, whenever he is acting in
discharge of his duty, as servant of him who is the
| common master of both.
Such is the language of the Court in the late
case Of Hutchinson Us. The York, Newcastle an
| Berwick Railway Company, and there can be n o
doubt that the rule therein laid down, is in strict
! accordance with legal principles. See, also, the
case Of Wtgnaore vs. Day. Law Expositer, Dec.
| number.
1t is not pretended that the Engineer of the
Corporation was unskilful, habitually negligent,
| but it clearly results from the evidence that the
deceased was himself guilty of negligence in con.
tnuing to run the engine if alleged, the defects
of the boiler were visible.
1t is therefore ordered and decreed, that the
Judgment in this case be reversed and that there
be judgment in favor of the defendants with costs
| in both Courts.