Morris v. St. Bernard Cypress Co.

On Motion to Fix by Preference. SOMMERVILLE, J. This is a personal injury suit, which, on motion by plaintiff, was fixed and heard by preference. Defendant and appellant moves that the order fixing the case should be recalled on the ground that Act No. 17 of 1916, p. 47, under which the case was fixed by preference, is inoperative, invalid, and unconstitutional for several reasons. Some of these reasons are disposed of adversely to the defendant in the case of Mrs. Janie King v. New Orleans Railway & Light Co., No. 21469, 140 La. 843, 74 South. 168, on the docket, this day decided; and they will not be further noticed. [1] The first objection to the act of the Degislature is that, while the act is entitled “To provide that all suits for damages arising ex delicto shall be tried by preference,” the act itself does not declare that such actions are preference suits, or that they shall be tried by preference. The act directs that such actions shall be placed upon the preference dockets of the courts of the state, and tried along with other preference cases; and the object is clearly embraced in the title. The next objection is that the act is unconstitutional because it gives preference to certain persons holding a certain character of actions for damages, when it does not embrace all persons who may have actions for damages; and it gives a preference to ex delicto damage cases over the general business and the general classes of cases before the court. Cases sounding in damages arising ex delicto are in a class to themselves, and they embrace all suits on such actions. All litigants belonging to that class have the equal protection of the law; and there is no discrimination against persons outside of that class. The next objection is that the act is ex post facto, and therefore unconstitutional, as it includes this, and other cases, which were filed in the court before the passage of said [513] act. The act is not a criminal statute, and, besides, is one affecting the administration of the business of the courts of the state, and does not deprive appellant of any vested rights. The motion to recall the order fixing the ease by preference is denied. On Exceptions of No Cause of Action. [2] Defendant has filed two exceptions in this court on the ground that plaintiff’s petition discloses no cause of action. Plaintiff alleges in his petition that he was employed by the defendant company as a night watchman on what is called a sawmill skidder; and that while he was thus engaged he was removed by his superior and put to work on a logging train as a fireman and to make couplings; and that he was unfamiliar with this kind of work, and was given no instructions therein or warnings as to the dangers thereof; and that he was injured in the manner set forth in the petition while thus engaged. The evidence was to the effect that there is danger in coupling cars, and that there is a safe and unsafe way to do such work. Defendant’s foreman testified in part: “We all know that [that there is danger].' But what more can you tell a man than to be careful?” “A man could get hurt at it any time. I could. Anybody else could.” “A man can always keep from getting hurt at coupling, or braking, cars. I know that because I did it myself.” This same witness testified, with reference to the instructions given by him to the plaintiff: “This negro, Harry Williams [the brakeman] took sick, and I had nobody else to put on the locomotive, and I asked Joe Morris [the plaintiff] would he go, and he said, ‘Yes,’ and I told him to be careful — to go ahead. That was all the instructions I gave him.” “He was, I knew, familiar with the work. I must say that I had never seen him do the work, but he had seen it, during the whole time he was there [some two months, during which time plaintiff was. serving as night watchman].” This evidence was given by defendant itself, and, of course, was unobjected to. The evidence further shows that plaintiff was an ordinary colored laborer, employed by the defendant as an all-around man, and that he had never acted as a brakeman on a train before to the knowledge of defendant. Defendant put plaintiff to work in a dangerous place, with dangerous appliances, and without any instructions whatever. The petition may be faulty, but, when taken together with the evidence taken on the trial of the case, and unobjected to, it discloses a cause of action. The exceptions are overruled.