.

the cash on hand. The creditors cannot now have it charged to the immovable property, for we do not recall that the evidence shows that this live stock was not in some way necessary in operating the plant, in hauling the lumber and other similar work at the planer.

Operating Expenses of Planing Mills.

The complaint of the opponents in regard to this item is that the amount charged is excessive. There was evidence introduced by opponents in support of the opposition to this claim.

Witnesses for the receiver also were heard. The testimony is conflicting. The purpose, as stated in the opposition, was to have the amount deducted from the receiver's commission on the ground of his negligence. The commission of the receiver is already sufficiently reduced.

We pass from this point without further comment, as it has no merit.

Merchant's Privilege.

The amount allowed by the district court to Brown, Timmons & Co. et al. on the account of goods and merchandise advanced is the only claim before us. (The other claims for advances and merchandise were

not allowed by the judgment of the district court and are not before us.) The other merchants to whom there is an amount due have not appealed, and they have not answered the appeal. These last are passed over, and will not be noticed further.

With reference to the firm above named whose claim has been allowed by the district court, there is contradiction.

trees and cut them into logs, and haul them away.

Another point is urged by the receiver and others to this claim. It is that the logs were brought to the mill and were sawed into lumber.

In considering this last point we find as a fact that the lumber was indifferently identified as the lumber from the logs. The tes timony is not conclusive about this lumber.

The serious ground at this time is that, the logs having been sawed into lumber, the privilege was lost. In deciding, we will have to refer to section 1 of act No. 33 of 1882, cited supra. It provides for a privilege to secure supplies bearing upon the logs cut. The title and the act describe the privilege and the property specifically, but nothing is said of lumber. It is confined exclusively to the logs; i. e., to a privilege on the logs for labor done in cutting them into logs.

It has been decided repeatedly that privileges are stricti juris. Words cannot be supplied in order to recognize a privilege. But "lumber" (specific property) is not to be implied as having been intended by the legis lator. Had he so intended he could easily have added the word "lumber," and would not have limited the statute to logs.

Counsel for this firm compare this asserted privilege to the privilege granted to the merchant and factor for money adanced to make and cultivate the crop of cotton. This last-mentioned privilege follows the product after it has been gathered, ginned, and baled, and has gone to the machine which separates the seed from the lint, thereby converting the raw material to another without a change of the thing itself.

The marked difference between this illus

consists in the fact that "crop" is a general term, and includes cotton in the field as well while the term "log" is limited in its meanas cotton after it has been ginned and baled, ing. After it is converted into lumber, lumber does not include the logs.

In the first opposition this firm claimed for goods and merchandise and groceries ad-tration of the learned counsel for the firm vanced to the Pleasant Hill Lumber Company during the six months next preceding the appointment of the receiver to enable it to continue to operate its business. They asked in this first petition to be recognized as creditors with a privilege. This firm subsequently filed an amendment in which it claimed, different from the first opposition, that it furnished money and necessary supplies to secure logs and timber to be cut into lumber by the sawmill.

There was a change as shown by the allegation above noted.

cane.

The same is true of crops of corn and After the corn is gathered and put in sacks, it is still the crop, and the privilege follows the corn as well as the cane after it

is ground into sugar, if it can be identified.

The Claim of J. A. Selvy.

No objection was urged to the amendment. On the trial of the case the testimony was This claim is for $13,375.35. This credadmitted without objection. That testimo-itor was president of the insolvent company. ny did not identify the advances as made to It figures on the account as an ordinary debt the Pleasant Hill Lumber Company "to of the receiver. deaden, cut, haul, float or raft any logs or forest timber"; quoting from Act No. 33 of 1882.

One of the witnesses, a member of the said firm, said that the orders furnished by his firm were filled for supplies to laborers employed at the mill.

If advances were made to laborers at the

The objection urged in argument by the McCullough-Weaver Lumber Company, opponents, was that no evidence was offered in support of this item.

It is sustained by the receiver's oath. We think that this account has been sufficiently proven.

The opponents just named admit that there

4. MASTER AND SERVANT (§ 213*)-INJURIES | distance of 7 feet 7 inches (so that he could TO SERVANT-ASSUMPTION OF RISK-SELECT- barely touch the beam with his fingers), and, ING MORE DANGEROUS METHOD.

Plaintiff was also barred from recovering under the rule that a servant who selects an improper and dangerous route assumes the risk of resulting injury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 560; Dec. Dig. § 213.*]

Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge.

Action by Charles Kreye against the Longville Long Leaf Lumber Company. From a judgment for plaintiff, defendant appeals. Judgment set aside, and suit dismissed.

Pujo, Moss & Miller, B. P. Finley, and W. R. Thurmond, for appellant. McCoy, Moss & Knox, for appellee.

as a consequence, came near resulting in his straining his back and falling. Plaintiff undertook to get across by walking on the shafting, and while doing so, lost his balance and fell, and suffered the injury for which he brings this suit in damages. If his statement is to be adopted, he put his left foot on the shafting, and, before lifting his weight from his right foot, leaned over and put his hand on the pulley, intending to steady himself by holding onto it; and, as he put his weight on it, it turned, and caused him to lose his

balance and fall. In that statement he is corroborated by his brother; but he is contradicted by the colored man who was working on the platform, who says that plaintiff started out to walk upon the shafting and lost his balance, and only caught hold of the pulley in falling; and also by a physician who saw him immediately after the accident, and who testified that in explaining how the thing happened he had said that he went to step over a pulley and in so doing lost his balance and fell; and also by the physician who attended to him in the sanitarium, in Shreve

on a line shaft, and when I proceeded to walk it, my foot slipped"; and, finally, by the foreman of the mill, who testified that he went to him as soon as he fell, and that when asked how it had happened, he said that "he attempted to walk the shaft and his foot slipped." The preponderance of the evidence is here decidedly with defendant; and we think it is also with defendant going to show that the shaft had been greased; and that, therefore, to venture upon it was the height of imprudence.

PROVOSTY, J. A sawmill of the monster size was being constructed by the defendant company, in which there was no end of shaftings and pulleys, perhaps a thousand of the latter. Plaintiff and his brother, both of them tall men-6 feet 11⁄2 incheswere mechanics employed in the work of construction. Their work necessitated their pass-port, who testified that he told him, "I was ing from one horizontal beam, upon which they were standing, 6 feet 51⁄2 inches above the ground floor, to another parallel horizontal beam at the same level, 8 feet 2 inch away. Extending from one of those beams to the other, and resting on the top of them, was an iron shafting, 315/16 inches in diameter. On this shafting, about midway the distance between the two beams, or some 4 feet from the beam upon which the men stood, was a pulley, or broad-rimmed iron wheel, 25 inches in diameter. Parallel with the shafting, about 6 feet higher than it and about 3 feet to the side of it, was another beam-the exact space between it and the iron shafting being 7 feet 7 inches. About 4 feet lower than the beam upon which the men were standing-that is to say, about 2 feet above the ground floor-there was a platform, composed of 3 loose planks each 12 inches wide, extending the entire distance between the beam upon which the men stood to that which they desired to reach. This platform had been placed there for the use of a colored workman, who at the moment was upon it at work; but nothing shows that plaintiff and his brother could not have stepped down and walked upon it for passing from one of the beams to the other. There was also nothing to prevent them from letting themselves down to the ground floor and getting to the other beam by means of a ladder or other convenient means. Instead of doing this, the brother sought to get across by resting his feet upon the iron shafting and his hands upon the beam which ran parallel with it, some 6 feet higher and some 3 feet to one side. This necessitated his spanning a

In justification of their action in attempting to get across from one of the beams to the other in the way they did, plaintiff and his brother say that their work at that place consisted in putting and screwing nuts to a number of bolts which protruded through the ceiling, or floor overhead; and that so little time was required for doing this work, that the natural and practical way of doing it was simply to stand on the beams and put on and screw the nuts, without taking time to construct scaffolding for the purpose, or even for passing from one beam to another; that to have gone down to the ground floor and procured planks for these purposes would have been a useless and unjustifiable waste of time. This testimony on the part of these two men is irreconcilable with the fact that the bolts to which the nuts were to be added and screwed were at the ceiling, 9 feet 41⁄2 inches above the beams they were standing on, and therefore out of their reach as they stood upon the cross-beams.

The negligence which plaintiff charges the defendant company with is alleged to consist in that the pulley had not been keyed, so as

1020

to be made immovably fast to the shaft, | any previous occasion the pulleys had been which was itself immovably joined to the ma- sought to be utilized as a handhold in acchinery. The contention is that the well-complishing the dangerous feat of walking known custom is for workmen to use such along the shafting. There was certainly no shafting for standing, or walking, upon, in duty resting upon the employer to make The learned doing their work, instead of having recourse these pulleys safe for this use. to regular scaffolding, whenever the work can counsel of plaintiff argue that it not being be done in that way and is not of sufficient possible, or it being at any rate most difficult, importance to justify scaffolding; and that for plaintiff to walk upon the shafting withthe invariable rule and custom is to key the out steadying himself by holding on with his pulleys, and thereby bind them immovably hands to something, it was the most natural to the shaft, as soon as they are put on the thing in the world for him to catch hold of shaft, in the course of construction; and that this pulley, especially after he had witnessed the thousand pulleys already put on their the danger his brother had gone through by shafts in this mill at the time of the accident trying to utilize the beam parallel with the And plaintiff had been keyed in that way; and that, there- shaft for steadying himself. fore, it was natural for plaintiff to suppose, produced several experts to testify that for and he had a right to assume, that this par- him to have thus caught hold of this pulley ticular pulley had been keyed and was fast, for maintaining his balance while walking and that he could rely upon it for steady- upon the shaft, was the natural thing to do. ing himself, or holding onto, while walking We agree with these experts that it was the upon this shaft; and that the failure to have natural thing to do-just as it is natural for thus keyed it was negligence on the part of drowning men to catch at straws; but we think it would have been much more natural the defendant company. and consonant with reason and ordinary prudence for the plaintiff to have gone about reaching the other beam in some less acrobatic fashion.

Plaintiff testified that most of the thousand or so pulleys that had been already put upon their shafts had been keyed and made fast. His brother testified that all of them had been. Plaintiff produced several experts to prove that the custom was for workmen to use the shafting in the way of scaffolding whenever convenient in the course of construction; and that the invariable custom was to key the pulleys at the time of putting them on their shafts.

Defendant produced a greater number of witnesses and experts to prove the very contrary of all this; and, there can be no doubt, did prove it by a decided preponderance of testimony.

How, under the circumstances, the jury came to give a verdict in favor of plaintiff, we cannot imagine. For several reasons, the plaintiff cannot recover.

It

The main reason is that, even conceding everything that plaintiff says, the defendant has not been guilty of any negligence. cannot be negligence for defendant not to have made safe for walking a place not intended to be used for walking, nor to have failed to make this pulley safe for holding onto in performing the acrobatic feat of walking upon this iron shaft, when this pulley was never designed for that purpose.

If by any command, or rule, the workmen had been required to use the shafting for walking upon in that manner, there might be some reason for holding the employer to the duty of making these shaftings safe for walking; but nothing of that kind is pretended. If the workmen ever do walk or stand upon these shaftings for doing their work, it is simply because they choose to do so, and at their risk and peril. That they quite frequently do so, the evidence shows; but it does not show that they are under any obligation to do so. Nor does it show that on

"It is well settled that, where the instru mentality which caused the injury was still incomplete at the time of the accident, and the injured servant was engaged in the work of bringing it to completion, the question whether the master was in the exercise of due care is determined with reference to a lower standard than that which is applied in the case of instrumentalities which have been put into a finished condition and are in regular use in the 1 Labatt on normal course of the business." Master and Servant, p. 66, § 29.

See, also, Bedford Belt R. Co. v. Brown (1895) 142 Ind. 659, 42 N. E. 359 (bridge carpenter not entitled to recover for an injury caused by the slipping out of a wedge used in the construction of a track for the carriage of heavy timbers); Bennett v. Long Island R. Co. (1900) 163 N. Y. 1, 57 N. E. 79 (use of switch without lock or target, on a road under construction held not to be negligent); Allen v. Galveston, H. & S. A. R. Co. (1896) 14 Tex. Civ. App. 344, 37 S. W. 171 (recovery denied where the injured servant was engaged in constructing a bridge). 1 Labatt on Master and Servant, p. 66, notes.

"Although it is a master's duty to use due care to furnish his servants tools and appliances suitable for the purpose for which they are provided, he owes them no such duty when they put his tools to uses for which they are not intended.

It is not negligence to omit a precaution applicable only to a situation which did not exist." 1 Labatt on Master and Servant, p. 59, § 26.

"If the servants undertake to use machinery or instruments for purposes for which the employer had no reason to suppose they would be used, it is their own fault or folly if harm Felch v. Allen (1868) 98 Mass. comes from it. 572. See, to same effect, Guenther v. Lockhart (1891) [61 Hun, 624] 16 N. Y. Supp. 717, affirming (1893) 137 N. Y. 529, 33 N. E. 336." 1 Labatt on Master and Servant, p. 64, notea

And again:

No. 17,844.

(126 La. 775)

HEBERT v. KINGSTON LUMBER CO.

(Supreme Court of Louisiana. June 6, 1910. Rehearing Denied June 28, 1910.)

(Syllabus by Editorial Staff.)

1. MASTER AND SERVANT (§ 256*)—INJURIES TO SERVANT-NEGLIGENCE-PETITION.

Where, in an action for injuries to a serv

and cause of the accident, and that it was through no fault of plaintiff, but through defendant's negligence in failing to furnish plaintiff a safe place to work, it was not fatally defective for failure to allege that the danger was hidden or was not known of or assumed by plaintiff, or that he was inexperienced or not properly warned.

"An employé hauling buckets of tar up on a roof lost his balance, and, in falling, grasped a triangular wooden horse,' used as an appliance in hauling up the buckets. The 'horse' was insufficient to withstand the strain, and fell with him. Held, that a peremptory instruction for defendant was proper, since the fact that the 'horse' fell when jerked by plaintiff did not show that it was insufficient for the use for which it was intended. Bell v. Refuge Oil Mill Co. (1899) 77 Miss. 387, 27 South. 382. Aant, the petition alleged particularly the manner workman cannot recover against his employer for injuries caused by falling from a scaffold on the giving way of a stay lath to which he was holding while leaning over to catch his tools thrown to him from below, where such stay lath was intended solely to keep the posts of the scaffold upright. Crebarry v. National Transit Co. (1894) 77 Hun, 74, 28 N. Y. Supp. 291. A railroad company discharges its duty to an employé in furnishing a brake staff on a car sufficient for the use for which it is intended although it gives way when he attempts to use it as a handhold in climbing on the car while moving. Elgin, J. & E. R. Co. v. Docherty (1895) 66 Ill. App. 17. See, also, to same effect, Jayne v. Sebewaing Coal Co. (1896) 108 Mich. 242, 65 N. W. 971 (miner when about to ascend in a cage took hold of a loose nut, not intended as a handhold, and not affecting the safe operation of the machine, and had his hand crushed when the cage started); New York & N. J. Tel. Co. v. Speicher (1896) 59 N. J. Law, 23, 39 Atl. 661 (lineman used a crossbar carrying wires as a support in climbing a pole). 1 Labatt on Master and Servant, pp. 60, 61, § 26, notes.

Another evident. reason why plaintiff cannot recover is that embodied in the following extracts:

"A servant who selects an improper and dangerous route assumes the risk of resulting injury." Antee v. Richardson Taylor Lbr. Co., 123 La. 118, 48 South. 765.

"A servant who, without inquiry, selects an improper and dangerous route, assumes the risks of resulting injury." Sauer v. Union Oil Co., 43 La. Ann. 699, 9 South. 566.

as

"Where there are two avenues of travel, the person choosing the more dangerous one sumes all of its attendant and incidental risks." Settoon v. T. & P. Ry. Co., 48 La. Ann. 807, 19 South. 759. Also, see Ederle v. V. S. & P. Ry. Co., 112 La. 729, 36 South. 664; Dandie v. S. P. Ry. Co., 42 La. Ann. 686, 7 South. 792; Jenkins v. Maginnis Cotton Mills, 51 La. Ann. 1011, 25 South. 643; Schoultz v. Mfg. Co., 112 La. 568, 36 South. 593, 104 Am. St. Rep. 452; Taylor v. Ry. Co., 121 La. 543, 46 South.

621.

And in the recent case of E. L. Williams v. Arkansas, Louisiana & Gulf Railway Company (decided on March 14, 1910) 51 South. 1027, the court, reversing the judgment below, says:

"Where a brakeman is injured in attempting to step on the pilot of a moving engine, and the evidence shows that it is more dangerous to attempt to get on there than upon steps, or rests, on the side, which project over the rails, and that his duty did not require such attempt, there can be no recovery for the injury."

Judgment set aside, and suit dismissed at plaintiff's cost.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 809-854; Dec. Dig. § 256.*] 2. MASTER AND SERVANT (§§ 101, 102*)—INJURIES TO SERVANT-CARE REQUIRED. While a master is not an insurer of the safety of his servant, he must use ordinary care to furnish the servant with a reasonably safe place in which to work.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 171-184; Dec. Dig. § 101, 102.*]

3. MASTer and Servant (§ 278*)—INJURIES TO SERVANT-NEGLIGENCE.

In an action by an engineer in defendant's employ, injured by getting his foot caught in certain gearing under a passage platform on the way from one engine to another, held, that the platform was dangerous, and that defendant was negligent in permitting it to remain so.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 278.*]

4. MASTER AND SERVANT (§ 288*)-INJURIES TO SERVANT-ASSUMED RISK.

The danger from a defective platform on which plaintiff worked held not so manifest or clear that plaintiff would be held as a matter of law to have seen and assumed it.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 288.*]

5. DAMAGES (§ 132*) — PERSONAL INJURIES AMOUNT ALLOWED.

ant's employ taking care of two engines, had Plaintiff, a stationary engineer in defendhis right heel caught in the cogwheels under a platform, and his foot was so badly crushed that his leg had to be amputated. Plaintiff's sufferings were very great, and his earning capacity very greatly impaired, if not practically destroyed. Held, that plaintiff should be allowed $6,000 damages.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*] Land, J., dissenting.

Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.

Action by Jude Hebert against the Kingston Lumber Company. Judgment for defendant, and plaintiff appeals. Reversed, and judgment for plaintiff.

Williamson & Crain, for appellant. Thatcher & Welsh (Alexander & Wilkinson, of counsel), for appellee.

PROVOSTY, J. Plaintiff, aged 34, was engineer at the sawmill of the defendant com