avoided, and reversed, and that this case be the evidence furnishes no support-the conremanded to the lower court to be proceed-clusions are authorized that the proximate ed with in due course and according to law.

SIMMONS v. LOUISIANA RY. & NAV. CO. 3. Master and servant 248-Failure to avoid (Supreme Court of Louisiana. Oct. 4, 1921.

and when the position of the foreman's body, when found, precludes the possibility of his having been knocked off the platform, and there is direct evidence to the effect that he was standing on the track and was there struck by the train, and was not on the platform; and the engineer, as a witness, propounds the theory that he may have committed suicide by walking into the train, or have stepped into it negligently, or have fallen into it, for which was $5,000.

(90 So.) >

The case disclosed by the record is as follows:

He says that he saw the train strike Simmons, the fact being that he was facing in that direction and that the hoisting of the bucket was a matter of but one minute.

injuries. D. E. Blake was keeping a meat market and grocery upon one of the streets on the edge of Pineville. He had seated himself upon the front gallery of his place of business and had a clear view of the bridge. He saw Simmons on the bridge and watched him for about 10 minutes when he saw the train strike him. Simmons was standing on the bridge, over the form, when struck, and appeared to be giving instructions to his workmen under the bridge. The witness heard no whistle or bell from the train, and there was no lookout in front. Simmons was looking rather in the direction of Pineville than in that of the approaching train.

Defendant, through its agents, had been engaged for some five months in replacing, with a reinforced concrete bridge, a wooden Bose testifies that, two minutes, perhaps, trestle, forming part of its railroad and span- before the accident, he was passing on the ning the "Jefferson Highway," near Pineville, track and stopped and exchanged a few in the parish of Rapides, and the work was words with Simmons, and that Simmons gave nearing completion, when, on March 21, 1918, Kimball the sign to hoist the bucket just at about 11:30 a. m., decedent, while acting as he was leaving him; he did not see as foreman of the construction gang, was the train strike him, but was immediately inrun over and killed by an unscheduled train, formed of that occurrence by Kimball, and, consisting of an engine, tender and oil tank, the train having passed, he saw the lifeless moving backward and pulling five cars, which, body of Simmons on the top of the form, beapproaching from the north, without hav-neath the track, at a point about 20 feet being given proper warning (as plaintiff al-yond that at which he had been struck, with leges), crossed the trestle upon and beneath one arm cut off, the skull crushed, and other the surface of which the work was being carried on. The general direction of the railroad is northwest and southeast, and it appears to cross the highway at a right angle. The length of the bridge from the outsides of the abutments is 51.4 feet; the width is probably 40 feet. At the time of the accident, the construction gang was at work on the central pier, which was being molded of concrete, reinforced with iron or steel, in a wooden form, built up from the surface of the highway to, or near to, the surface of the trestle and railroad track-a distance of 15 feet. For the purposes of the work, a wooden tower had been erected on the east side of the track at a point about 35 feet south of the trestle, from which a chute was extended, for the conveyance, by gravity, of the concrete mixture into the form. The apparatus, called a "mixer," in which the rock, sand, and cement were mixed, was located within a few feet of the base of the tower, and was operated by Charles Bose. A few feet to the southward of the mixer there was a hoisting engine, operated by Henry Kimball, whose duty it was to receive the mixture from Bose, in a container called a "bucket" (though probably bearing no resemblance to an ordinary bucket), and, upon signals from the foreman, hoist it up into the tower, where the bucket was automatically emptied into the chute, through which it passed into the form. The duty, and only duty, of Kimball and Bose, therefore, was to keep up the supply of concrete and deliver it into the chute as called for by Simmons, and, in order to discharge that duty, it was necessary for them to keep their eyes pretty constantly on Simmons, and that they did so, is shown by their testimony. Thus we quote from the testimony of Kimball:

"Q. I understand you saw him before the accident, when he gave you the signal to hoist the bucket? A. Yes, sir. Q. The first time, of those two times mentioned, where was he standing? A. On the track. * * *He was standing on the track and gave me the signal to hoist the bucket, and I hoisted the bucket, and about the time that I hoisted the bucket the train struck him."

The theory of the defense is that Simmons was not standing on the track when the train approached him, but was standing upon what is called a "platform," which extended out from the west side of the track, and that, when the train was passing in front of him, he stepped into it and was killed by his own act. The train crew consisted of the engineer, a white man named Porter, and two negroes, fireman and brakeman, respectively, named Gordon and Harvey, and it appears from their testimony, and otherwise, that, for two hours or more preceeding the accident, they had been engaged in switching operations within a distance of, say, 300 yards, immediately above the bridge, and had, on several occasions, approached to within 50 or 100 feet of it, only to stop and go back; and we assume that those operations were accompanied by a good deal of whistling and bell ringing. When the switching was completed and they were ready to leave for Alexandria, which is a few miles below the bridge, the whistle was blown twelve times at the starting point, called "Silam Spur," the upper limit of the track over which they had been switching; the purpose being, not to warn any one on the bridge, but to call in the flagman, which having been accomplished, the train was started toward the bridge. some point below (exact distance not shown) it passed what was called the "car camp," being a collection of cars on a spur or siding in which the construction gang were housed

At

Considered as an answer to the question tank, at a distance of 15 feet. The fireman, propounded that statement was untrue; the Gordon, who was on the right side of the en12 whistles not having been blown as an ad-gine and track (since the engine was backing, ditional warning to Simmons, or at the end of the camp cars, but as a call to the flagman and at Silam Spur, prior to the starting of

(90 So.)

run over, until you reached Alexandria? A. Iwere, each upon the other, for the safety of did not. Q. Can you state, if this train did their lives, was to do nothing and to leave run over Mr. Simmons, how it was possible for nothing undone which would imperil such this man to get on the track and be run over safety. without the brakeman seeing him? A. Yes, sir; there are several different ways. Q. Can you state the ways? A. Mr. Simmons could have dashed into those cars, standing on the platform-looked that way. Q. You mean he committed suicide? A. Looked very much that way. Q. What other way? A. Mr. Simmons could have taken it to be a little engine, and, when the engine got by, stepped up on the track, and the cars got him. Q. You mean, by that, that Mr. Simmons, just after the engine passed him, walked right into the remainder of the train, without looking? A. Don't say that he did that, say that it could have happened that way. Q. Was there any other way? A. Not unless he turned around and fell off of that platform."

Beyond the statement thus made, there is not a syllable in the record which suggests the theory that Simmons committed suicide, and the weight of probability is against the theory that he was standing on the so-called platform.

It is not shown that the foreman, or Simmons as acting foreman, had ever undertaken to superintend the work from the platform in question, and our conclusion is that a more inconvenient place from which to exercise that function could hardly have been found. On the other hand, the place where plaintiffs' witnesses locate Simmons seems to have been the proper and convenient one, since the men were working immediately beneath him, or, if they moved, he could follow them, on the surface of the bridge, and, if he found it necessary, as at times he did, he could readily step down into the form and handle the work, such, perhaps, as the adjusting of the reinforcing iron or steel, himself.

Opinion.

[2] The engineer, it is shown, was asked why, in view of the fact that he saw that Simmons was oblivious of the approach of the train, he did not give him additional warning, and his flippant answer was the question: "What do you mean by additional warning; get down and make him get off the bridge?" It then being explained that the counsel meant to inquire why he did not blow his whistle, he replied that he had blown it 12 times; the fact in that connection being, as we have stated, that he had blown 12 times, before starting from "Silam Spur," as a signal to his flagman, and that before reaching the road crossing, at a point, say, 150 yards above the bridge, he had blown the crossing signal for the crossing and the bridge, being the same that he had probably blown a dozen times during the two preceding two hours for the crossing alone, and he seems to have expected Simmons to understand that the identical signal, which had previously meant the crossing alone, had suddenly come to mean both crossing and bridge. Apart from that, and even though he had not been 'switching near the bridge and the occasion of the accident had been the first upon which he had approached it, and though he had blown for the crossing and again for the bridge, he testifies that he saw Simmons, standing on the platform which has been described; that he kept him in sight until he was within 40 or 50 feet of him, when his view was cut off by the tender, or tank; and that Simmons was looking in a direction other than that of the approaching train. And such was the testimony of the fireman and the brakeman and of Kimball, who received a signal from him about that time; the consensus of the testimony being that Simmons' attention seemed to be concentrated on what he was doing, and that he did not, at any time, turn his eyes in the direction or appeared to be conscious of the approach of the train, which circumstances considered, it appears to us that it would have been a natural and reasonable precaution on the part of the engineer, when his view of Simmons was thus cut off, at a distance of only 40 or 50 feet, either to have blown the whistle, or to have stopped the train, which latter, he says, he could have done within 12 or 15 feet.

[1] Being placed, by defendant, in temporary charge of the building of a concrete bridge on the line of its road, as a substitute for a wooden trestle, the decedent, in the absence of instructions to the contrary (and under some circumstances, perhaps, in any event), was entitled to such precedence over an unscheduled, hauling train, in the matter of the occupation of the incomplete bridge, as the execution of the work for which he was employed may have required, since there could be no trains without a track, and no track, at that point, without a bridge. If we assume that the builders of the bridge [3] As we see the matter, the engineer had were instructed to do their work with the no right of way over the bridge. Simmons, least possible interference with the running as foreman of the bridgework, was there of of the trains-whether scheduled or un- right, and, if he considered that the work scheduled-and that those in charge of the in which he was at the moment engaged of trains were instructed to run them with due more importance to his employer than the regard to the fact that the bridge had to be, passage of the particular train in question, and was being, built, the obligation of those it was his duty and his privilege to remain parties, respectively, interdependent, as they there. It probably was of more importance,

since the concrete mixture was just then | 43 South. 934; Bail v. La. & N. W. R. Co., pouring down through the chute into the 129 La. 1029, 57 South. 325; Wirth v. Alex form, and it may very well have been that Dussel Iron Works, 140 La. 1056, 74 South. the position of the reinforcing iron or steel 551. required attention, or possibly, there may [4] And, upon the basis of those concluhave been danger that the mixture might sions, we are of opinion that the amount overflow the form, or fill it to a higher level awarded by the trial judge is less than it than was intended. Certain it is that the should have been and should therefore be inforeman was engrossed in what he was do- creased. Considering, however, that the ing, and what he was doing was in plain dis- question of the measure of the damages to be charge of the function for which he had been allowed in cases arising under the federal put in charge of the work. So much was Employers' Liability Act is governed by the his attention concentrated on his work that jurisprudence of the federal courts, that the the testimony of every witness who saw Supreme Court of the United States has defhim points to the conclusion that he heard initely expressed its views upon the subject, no signal from, and was wholly unconcious and that this court, where the evidence enof the approach of, the train; and that he abled it to do so, has conformed to those was so unconscious was apparent. The pur-views, we are constrained, for lack of the pose of such signals as may have been given, necessary evidence, to remand this case, in therefore, failed, and those by whom they order that such evidence may be supplied as were given knew that they had failed, for is required under the rulings in Chesapeake the engineer admits that up to the last & Ohio R. Co. v. Kelly, 241 U. S. 485, 36 Sup. moment, where, at a distance of 40 or 50 Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367; feet, his view of the foreman was cut off by Jones v. Kansas City Southern Ry. Co., 143 the tender, he had observed that his eyes La. 312, 78 South, 568. were directed toward the tower, from which It is therefore ordered that the judgment the concrete was pouring in a steady stream; appealed from be affirmed in so far as it reand the lookout testifies that up to the mo-jects the demands of the defendant for the ment that his view was cut off, at a distance dismissal of the suit, and that, with respect of 15 feet, he had not looked in the direction to the demand of the plaintiff, the case be reof the train. If, then, the purpose of a sig-manded, with leave to plaintiff to offer such nal be to attract the attention of, and con- further evidence as may be deemed necessary vey information to, the person to whom it is directed, and if he who gives it sees and knows, or has reason to believe, that it fails of its purpose, and a human life is at stake, it seems plain that something else should be done, or attempted; and, in this instance, there appear to have been at least two things that might have been done, to wit: The whistle might have been blown, and the air brakes might have been applied, as at 40 or 50 feet

for the determination of the question of the measure and quantum of damages in the manner indicated in the two cases last above cited; all costs thus far incurred to be paid by defendant.

(149 La.)

No. 24772.
STATE v. SMITH.

the foreman, still oblivious to the approach (Supreme Court of Louisiana. Oct. 31, 1921.)

of the train, was cut off from the view of the engineer. But nothing was done, except to run over the foreman and kill him, and, though it was daylight and he was in plain view of those members of the train crew, and it is said by them that the train was moving at only 22 or 3 miles an hour, not one of them saw him killed, and only one of them (the engineer) ventured to make the guess that he had committed suicide by walking into the train, or that he might have fallen off the platform, 4 feet outside of the west rail, and have been run over on the track between the rails. Our conclusions are that the negligence of the engineer and crew of the train was the proximate cause of the accident, that the decedent was not at fault, and that he did not assume the risk of that negligence. St. Louis, etc., R. Co. v. Jackson, 78 Ark. 100, 93 S. W. 746, 8 Ann. Cas. 328 and note, 6 L. R. A. (N. S.) 646 and note; Dobyns v. Yazoo & M. V. R. Co., 119 La. 72,

(Syllabus by Editorial Staff.)

. Perjury 26 (3)—Indictment held to sufficiently allege defendant's knowledge of falsity of testimony.

An indictment alleging that defendant falsely, willfully, corruptly, and maliciously swore that he had never taken, or offered to take, men or women to rooms in a certain hotel for

purposes of prostitution, etc., whereas in truth
he had taken and offered to take, etc., as he
well knew, sufficiently charged that he knew
that he was swearing to a false fact at the time
he testified.
2. Perjury

19(1)-Common-law form of in

dictment need not be followed.

It is not necessary that the common-law form of indictment be used in charging perjury in Louisiana.