The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1851-01-31
Supreme Court OF Louisiana.
ELrzABETH HUBGH ps. THE CARRoLLToN RAIL
ROAD CoMPANY.. appeal from the Fifth Dis
tricf Court Of New Orleans. n

such actons, they cannot be maintained
Ss ms
Il general rule, under the Roman s.i spanish laws,
that setions for personal in1rls. are strictly psron.
. engine isa y .1psios q
ton ior damages that such suit could moi Be- msntsnsd On
action h
RosT, 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 Of their locomotive steam
engines, the boiler of which, from age and great
defects, was unfit for That the said boiler ex.
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 nepli-
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
$l0,OO0 damages, to be equally divided between
her and her children.
The defendants filed peremptory exception,
that the petition sets forth no cause of action and
IN case the exception was overrued, 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 - f- t-.
The exception was overruled, and the case was
tried before jury, who found in favor Of the
plaintiff $4,000 damages
The defendants have appealed. .'-
The exception of the defendants presents the
question, whether the death of human being can
be the ground fan action for damages
On general principles, the only private rights
which laws recognize, and which constitutions are
established to protect, the rights of persons and
| the rtghts Of property. The plaintiff and her
Children in this do not complain Of wrongs to
their persons and it cannot be pretended that
they had any rights OF property in their husband or
father. ltappears to us, therefore, that without
special statute authorizing such actions they can
not be maintained 1t is strong argument in
favor OF this view Of the law, that in a country
where private rights well protected as they
are IN England, it is settled that those actions do
not exist at common law. Baker vs. Bolton, |
Camp5.H, 493. i.etIti
In LIST Cushng's Massachuse It's Rep. d. AIS. a
case similar 10 the present. the rule of the Common
Law was affirmed; and the Judge being of opinion
that II the facts stated were proved they would not
eDtte the plaintiff to recover A verdict was en-
tered in favor of the defendants.
l. ln England, OF late years, this omission has been
supplied by statute in limited class of cases, 9
and 10 Victoria G. 80 ''f
II is urged that under the Civil Law the present
action can be maintained But the plaintiff coun-
sci have not favored us with any authority from the
Roman or Spanish Law sustaining theIposition they
assume On the contrary, it is general rule un.
der those systems that actions for personal injuries
are strictly personal. "a Pothier Pandecies, p 279,
Law l3. Partida, Tit, Is law 8.
1t is further urged that under article 1894 of our
Code, every act whatever of man that causes dam
age to another, obges him by whose fault it happen
ed 10 repair D that tits article has enlarged the reme-
dies given by the former laws in cases of damages
arising from torls, and that the present action
should be maintained under it. JTll,tg-y.e = =
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 it in two instances Great as our Difference
Is for that enlightened tribunal, we are unable to
adopt their conclusions The dispositions Of article
1894 are found in the Roman and Spanish Laws
| So lar from being new Legislation, that article EN-
| bodies general principle as old as the science Of
Jurisprudence itself; and must still be understood
with the limitations affixed to it by the Jurspru-
| 6ence of Rome and of Spain. Domat Lois Ciuiles.
lit Damages causes par de fautes Page 1870,
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 care de-
volved upon the eng ineer of the corporation
OF the witnesses have testified that the defects of
the boiler were such to be plainly visible on the
outside. If so, the deceased could not be ignorant
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-
ly rsking his life and those of the passengers
in the train it is clear that he could not recover
1
injury sustained by the explosion. The doctrine O
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-
covered damages for the injury, because he had ex-
posed himself to the risk by which he disabled
his widow could recover damages after he had been
| killed, will not bear the test of examination.
In pecuniary 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
| deaih. The decision relied on was undoubtedly
made to discourage dueing In that sense it may
| have been considered good action, but we are
compelled to say a bad judgment. q Sirey 500
II, on tie 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 was a servant of the
| corporation, and had charge of one of the lOcomo
tives 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 servan
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 Sc
lected BY him were habitually careless or unskill
ful. Priestty VS. Fo,Uler, 8; M. and W. Is.
The deceased and the engineer We're engaged il
| common service, the duties of which imposed
certain risks on each of them and in case of neg
ilgence 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 owl
want of skill or care, but also from the want of
on the part of his fellow-servant; and he must b
supposed to have contracted on the terms that, a
between himself and the defendants he would ru
that risk. 1t is the implied agreement that ex
cludes the case from the operation of Art. 2499.
The principle is, that servant, when he engage
| to serve master, undertakes as between him an
his master, run all the ordinary risks of the sci
vice. and this includes the risk of negligence on tn
part of a fellow.servanl, whenever he is acting
discharge of his duty, servant of him who is tn
common master of both. ....-'. . 81
Such is the language of the Court in the at
case Of Hutchinson Vs The York, Newcastle an
Berwick Railway Company, and there can be n
doubt that the rule therein laid down, is in str
J accordance with legal principles. See, also, IL
case of Wfguaore VS.. Day, Law Expositer De
number. IT.
!, 1t is not pretended that the Engineer of IL
Corporation was unskilful, habituaIly negligen
but it clearly results from the evidence, that Il
deceased was himself guilty Of negligence in COZ
tinuing to the engine if, as alleged the defec
} Of the boiler were visible. l's l-fi
| ai 1t is therefore ordered and decreed. that ii
Judgment in this case be reversed and that the
be judgment in favor of the defendants with COS
4 | in both Courts. ''' -'f
AUCTION NOTICE.
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