ST. BERNARD CYPRESS CO., Limited, v. JOHNSON, 222 F. 246

WALKER, Circuit Judge.

This was an action by the defendant in error (who will be referred to as the plaintiff), who was employed as a skidder in the swamp from which his employer, the plaintiff in error (which will be referred to as the defendant), was getting out logs, to recover damages for a personal injury, a proximate cause of which was the negligence of the engineer of a train of the defendant, which was following another of its trains upon which the plaintiff was being carried, after his day’s work was done, from his place of work in the swamp to the defendant’s plant and quarters, in accordance with the custom of the defendant to transport its laborers to and from their place of work, charging them nothing for that transportation and makipg no deduction from their wages on that account.

The court made rulings to the effect that at the time the plaintiff was hurt he was a passenger on the train upon which he was riding, that the relation of fellow servant did not exist between him and the negligent engineer of the following train, and that the fellow servant rule did not apply, so as to exempt the defendant from the liability asserted against it because of that negligence. We are of opinion that the rulings to this effect were erroneous.

The relation of employer and employe continued while the latter was being carried by the former in its own conveyance on its own premises, with the results that the plaintiff and the negligent engineer were fellow servants when the injury was sustained, and that the defendant is not chargeable with liability for the negligence of the engineer which is relied upon. These propositions are abundantly supported by authorities, a discussion of which is not deemed necessary. Dayton Coal & Iron Co. v. Dodd, 188 Fed. 599, 110 C. C. A. 395, 37 L. R. A. (N. S.) 456; San Pedro, etc., Co. v. Davide, 210 Fed. 870, 127 C. C.

A. 454; Martin v. Atchison, Topeka & Santa Fé R. R. Co., 166 U. S. 399, 17 Sup. Ct. 603, 41 L. Ed. 1051; 26 Cyc. 1087. The master not being-in fault with reference to the negligent engineer, the fellow servant doctrine, which prevails in Louisiana, was applicable. See Hubgh v. New Orleans & Carrollton R. R., 6 La. Ann. 495; Merritt v. Victoria Lumber Co., 111 La. 159, 35 South. 497; Cross v. Lee Lumber Co., 130 La. 66, 57 South. 631.

It was not a necessary inference from either the admissions contained in the defendant’s answer to the plaintiff’s petition or from the evidence adduced that the injury complained of would have been inflicted if the negligence of the engineer had not concurred with that of the track walker. On the contrary, the evidence introduced, in connection with that offered by the defendant and excluded, had a tendency to prove that, but for the engineer’s negligence, the plaintiff would not have been hurt.

So it cannot properly be said that the defendant was not prejudiced by the rulings to the effect that it was liable to the plaintiff for consequences of that negligence. It follows that the judgment of the District Court should be reversed, and the cause be remanded for a new trial; and it is so ordered.