text:
    BROTT v. TEXAS & PAC. RY. CO.
    No. 7136.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1948.
    Rehearing Denied April 1, 1948.
    Bethard & Bethard, of Coushatta, Howard K. Berry, of Oklahoma City, Okl. for appellant.
    Cook, Clark & Egan, of Shreveport, for appellee.
   KENNON, Judge.

Plaintiff, widow of Willis R. Brott, filed this suit for $25,000 damages against the defendant railroad company. The petition alleges that her husband, upon his discharge from the Armed Forces of the United States on June 2, 1945, at New Orleans, Louisiana, purchased a ticket from the defendant carrier from that city to its division point at Fort Worth, Texas; that her husband boarded their train and his body was discovered the next morning on the right-of-way of defendant carrier at a point one-half mile south of Lake End station in Red River Parish, Louisiana. She alleged that the death resulted from her husband either falling from the train or being violently ejected and thrown from the train while same was in motion; that his death was the result of defendant’s negligence and failure to use propel care. She contended that the circumstances were such that the doctrine of res ipsa loquitur is applicable and specifically pleaded same.

The defendant’s answer admitted the contract of carriage and that plaintiff’s husband’s body was found on its right-of-way as alleged. Its defense was that:

“(a) At the time of the occurrence, the train was being operated in the usual and ordinary manner;
“(b) That the doors to the vestibules of each of the cars were inspected after the train left Natchitoches, which was the last stop prior to the accident, and were properly closed;
“(c) That all of the equipment of respondent was in proper order;
“(d) That the only way in which the deceased could have fallen from the train would have been by his own voluntary act in opening one of the doors to the vestibules and either falling or jumping therefrom.”

The District Court gave judgment in favor of defendant and plaintiff has appealed.

The first discovery that an accidental death had occurred came when local residents found the body of plaintiff’s husband, still clad in naval uniform, beside defendant’s tracks south of its Lake End station in Red River Parish. Dr. ITuckaby, Red River Parish coroner, testified that the right side of the head was crushed and that from the circumstances, he concluded that plaintiffs husband met instant death when he fell from or was thrown from defendant’s train; that there was nothing to indicate any other kind of blow except the one to his head.

The Sheriff of Red River Parish was called. He testified that there was an indentation in the ground — a round impression — which looked like a man’s head had hit the ground a short distance from the end of the rail ties; that near his body they found a drinking cup, a stub of a cigarette and on down the tracks where the body rolled, one of his shoes. The Sheriff thought that the indentation was too close for the man to have fallen “out of the side of the train’’ and testified that the body rolled 10 or 15 feet away from the shoulders of the track before it came to rest down in the ditch “a pretty good piece from the rail.”

The train passed Lake End shortly after daylight, and deceased’s body was found on the right-of-way a short time later. The conductor and others on the train remembered deceased as a passenger after he boarded the train at New Orleans the night before and at intervals during the night. No one testified as to what he was doing at the time the train stopped at Natchitoches (some 10 miles south of the fatal spot) or his actions during the last few minutes of his life on this earth. W. J. Richardson, conductor on defendant’s train, testified that he “saw to it” that the vestibule doors were closed. He testified that after the Natchitoches stop — the last one before passing the fatal spot- — he closed the vestibule door of the colored car and that the brakeman closed the vestibule door of the white coach which had been opened at Natchitoches. He testified that after passing Lake End he went from his position in the first white coach back to the Pullman and found the vestibule doors all closed.

The brakeman — an extra conductor— testified that he “tried all vestibule doors” in the white cars after he left Alexandria. He testified that after the Natchitoches stop (the last stop prior to Lake End), he re-boarded the train at the head of the white car and that he again tested the vestibule doors and found them locked. He further testified that he performed all the duties required of a brakeman. McNott, the military policeman on duty, testified that he went through the train with the conductor after it left Alexandria and found all the vestibule doors locked safely. He testified that after leaving Natchitoches he went through the entire train with the conductor and checked the doors again and found them locked. It is possibly noteworthy that this witness is not an employee of the defendant company and should have no interest in defeating the claim of plaintiff whose husband was also in Service.

After a study of the record, we are in agreement with the District Judge and find the record and circumstances leave the cause, manner and method of deceased’s exit from the train unexplained, and that the most likely explanation is that death was caused by a fall through one of the vestibule doors, all of which were in proper working condition and closed at the time the train left Natchitoches 10 miles south of the fatal spot.

We will first consider plaintiff’s claim that the doctrine of res ipsa loquitur is applicable.

As stated in Corpus Juris,. Volume 45, 1193, this doctrine is applicable to an injury or accident which in ordinary course of things would not have happened if those who had management or control had used proper care. However, as stated in Gershner v. Gulf Refining Co., La.App., 171 So. 399, 402, the facts and circumstances must reasonably exclude every other cause of the accident except those causes which can be traced to the negligence of the defendant or its servants. In that case the Court stated: “The very nature of the doctrine (res ipsa loquitur) renders it inapplicable to a case where the facts and circumstances surrounding the accident show that * * * the accident might reasonably have been caused by other persons or agencies than those for whom the defendant is responsible. In other words, the facts and circumstances must reasonably exclude every other cause of the accident except those causes which can be traced to the negligence of the defendant or its servants.”

In the case before us, the accident resulted from the unfortunate action of the deceased in putting himself in the position to fall out of some opening (likely a vestibule door), or from the action of some other person, one who may or may not have been an employee of the defendant, in forcibly ejecting him through an opening. Since, under the facts as we find them, either the deceased himself or some third person, not an employee of the defendant, could have opened the vestibule door and either the deceased could have fallen out of the opening unaided or through the action of a third person who may or may not have been an employee of defendant, we conclude that the doctrine of res ipsa loquitur is not applicable under the facts and circumstances of this case.

We will next examine the Louisiana law and authorities relative to the degree of care required of a carrier toward its passengers.

In the case of Cusimano v. New Orleans Public Service, Inc., 170 La. 95, 127 So. 376, the Supreme Court of Louisiana laid down the rule that a carrier is not required to show how and why a passenger was injured to bar recovery. The Court recognized the rule that under Article 2754 of the Revised Civil Code, the carrier must “in order to escape liability for damage to goods and merchandise * * * show affirmatively the exact cause of the accident,” it not being sufficient to merely show “that it was free from negligence.” In the case of a passenger, the Supreme Court laid down the different rule that where a passenger is not safely carried to his destination, the burden of proof is on the carrier to show that it was free from negligence which might have caused the accident and that in order to show itself free from negligence, the carrier is not necessarily required to show how and why the passenger was injured.

Paragraph 3 of the syllabus in that case reads: “Though carrier has burden of showing that it was free from any negligence which might have caused injury to passenger, it is not required to show how and why passenger was injured in order to bar recovery.”

In the case of Pierce v. Toye Bros. Yellow Cab Co. et al., La.App., 8 So.2d 562, 565, the Court cited the Cusimano case and others and stated that; “ * * * a carrier is not the insurer of the safety of a passenger and that by showing that there was no negligence on the part of the carrier’s employee or on the part of the carrier, and that the equipment was not defective, the carrier may avoid liability.”

In the case of Hart v. Gulf, M. & N. R. Co., La.App., 167 So. 166, 168, the injury to the passenger occurred when a person-—-not an employee of the railroad— accidentally struck and broke a window pane. The carrier produced the porter and two car inspectors who testified that the equipment on the coach involved was in sound condition; that the window in which the pane was broken was examined shortly after that and found to be in good working order. The Court rejected plaintiff’s demand against the carrier and stated: “To hold the defendant responsible would be to decree it an insurer of the safety of its passengers.”

In the case at bar, the defendant established that the train coaches used by the deceased were inspected and found to be in good order, and that the windows and vestibule doors both before and after the accident were found to be in good working order, and that the vestibule doors were closed after the train departed from Natchitoches, the last station stop preceding the train’s passing the spot where deceased’s body was found. The testimony of defendant’s own employees was corroborated by that of a military policeman assigned at the time to duty on that particular train. (This witness had been assigned to military police duty on trains for over a year prior to the accident, having served on three other railroads besides that of defendant and being familiar with railroad equipment, the operation of trains and the necessity for keeping vestibule doors closed.)

The operation of the train was normal, there were no sudden stops or lurches. There is no indication of murder or suicide. The manner of deceased’s exit from the train is, as far as this case is concerned at least, unknown and unexplained.

If the carrier is the insurer of its passengers, the defendant is liable. However, Louisiana cases have not gone this far. The defendant as a carrier owes to its passengers the highest degree of care. When it is shown that deceased met his death while a paying passenger, the carrier may avoid liability if it shows its own freedom from negligence by a preponderance of testimony.

We conclude, as did the District Court, that the defendant has shown by the testimony of its employees on the train and at the division point that the equipment used was in workable and safe condition and that the crew members used proper care in handling the train on its jo-urney and in keeping the vestibule doors closed. The defendant has discharged the burden of showing that it was free from negligence. It was not required to go further and show how and why its passenger was injured. Cusimano v. New Orleans Public Service, Inc., 170 La. 95, 127 So. 376.

For the reasons assigned, the judgment of the District Court is affirmed, with costs.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    213 La. 885
    STATE ex rel. PIPER v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 38304.
    Supreme Court of Louisiana.
    June 15, 1948.

      See also 212 La. 714, 33 So.2d 206.
    Maurice R. Woulfe, of New Orleans, for relator-appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for respondents-appellees.
   HAWTHORNE, Justice.

Relator, C. B. Piper, instituted this suit for reinstatement as principal of the McKinley High School situated in the Parish of East Baton Rouge, and for payment of his salary from the date of his discharge, which he contends was illegal, at the rate of $2,756.00 per annum, payable monthly.

It is relator’s contention that he has satisfactorily performed all of the required duties as principal of the school for a probationary term of three years, and has acquired tenure and become a permanent teacher under the provisions of Section 48 of Act No. 100 of 1922, as amended by Act No. 58 of 1936; that his attempted dismissal by the School board is null and void and of no force and effect in that the school board did not comply with the provisions of the act in certain specified details and particulars, and, further, that certain charges filed with the school board were false and untrue and not based upon any law or valid reason, and that the action taken by the school board in respect thereto was illegal, null, and void. In the alternative he alleges that, in the event this court should find that he has not acquired tenure and became a permanent teacher as provided by the laws of this state but was a probationary teacher, then his purported dismissal was null and void and contrary to the above cited act in that (1) no written recommendation, accompanied by valid reasons therefor, of the superintendent of schools of East Baton Rouge Parish was ever presented to the school board, and (2) he was not at any time advised or notified in writing by the school board that he had been discharged and dismissed.

The facts pertinent to this decision are these:

Relator was first appointed principal of the McKinley High School on August 20, 1942, as disclosed by certified copy of resolution of the East Baton Rouge Parish School Board attached to his petition, this employment being for the scholastic year 1942-1943. He was continued in this employment for the scholastic year 1943-1944, and on June 21, 1944, was employed for the scholastic year 1944-1945 at a monthly salary of $216.67. His salary was to be increased to the amount of $2,756 a year, payable monthly, for the scholastic year 1945-1946.

On February 26, 1945, Dr. Clark L. Barrow, parish superintendent of schools, informed relator by letter — receipt of which relator acknowledged — that his services were not satisfactory and that he, as parish superintendent, would not recommend relator to the school board for reappointment as principal for the 1945-1946 school session, and that he would not recommend that relator be placed on tenure in the parish school system. This information that Dr. Barrow would not recommend relator as a permanent teacher was again conveyed to relator by the superintendent in April. Dr. Barrow subsequently repeated to relator that he would not recommend him for tenure, and read to relator his recommendation in this matter and valid written reasons therefor, which he intended to submit to the school board at its next meeting to be held on June 7, 1945.

At an official meeting of the school board held on June 7, 1945, all members present, Dr. Barrow refused to recommend relator for permanent tenure, giving his reasons therefor, all in writing. At this meeting Dr. Barrow put before the board in writing the names of the teachers whom he recommended to be employed in the parish school system for the 1945-1946 session. The minutes of this meeting disclose that the school board unanimously adopted the list as submitted, and that relator’s name was omitted from those to be employed at •the McKinley High School. These minutes further show that Superintendent Barrow informed the board that Professor Piper, relator, was not recommended for reappointment and permanent tenure as principal of the McKinley High School because his services had been unsatisfactory.

On June 21, a few days after this meeting of the school board, Dr. Barrow informed Professor Piper by letter that the East Baton Rouge Parish School Board at its regular meeting on June 7 did not reelect him as principal of the McKinley High School, and that this action was .taken after he had officially advised the board that he, as superintendent, could not recommend Piper for tenure as a permanent teacher because his services had been unsatisfactory.

By formal resolution adopted by the school board at its next regular meeting held on September 6, 1945, relator was discharged and dismissed as principal of the high school and was declared to be no longer an employee of the East Baton Rouge Parish School Board. This resolution set out the date of Professor Piper’s first employment and the various notifications made to him by Dr. Barrow that he would not be reemployed (all as set out hereinabove), and especially the fact that Dr. Barrow recommended in writing to the board at its meeting of June 7, 1945, that Piper be dismissed and discharged as an employee, accompanying this recommendation by valid written reasons therefor, and that the board concurred in, and adopted, this written recommendation of Dr. Barrow. In a letter dated September 7 relator was informed that he was discharged and dismissed as principal of the school and as an employee of the board, and a copy of the resolution adopted September 6 was enclosed with this letter.

On September 20, 1945, the present suit was instituted against the East Baton Rouge School Board and the parish superintendent of schools. After trial on the merits, relator’s 'demands were rejected, and he has appealed.

Respondents concede that, if relator has acquired tenure and is a regular and permanent teacher, the school board’s action in discharging him without a hearing, and not in the manner provided for the discharge of a permanent teacher by the act, is without effect. The first question for our consideration, then, is whether Professor Piper has acquired the status of a permanent teacher within the meaning of Section 48, Act 100 of 1922, as amended. The second paragraph of that section reads as follows:

“Each teacher shall serve a probationary term of three years, such probationary term to be reckoned from the date of his first appointment in that parish in which the teacher is serving his probation. During said probationary term the parish school board may dismiss or discharge any probationary teacher upon the written recommendation, accompanied by the valid reasons therefor, of the superintendent of schools of that parish.” (Italics ours.)

The trial judge concluded, and, we think, correctly so, that, since relator was first appointed principal on August 20, 1942, his probationary term of three years expired on August 20, 1945. The act in plain terms provides that each teacher shall serve a probationary term of three years, which means three years from the date of his first appointment- — ■ that is, three years consisting of 12 months each. To hold otherwise, this court would, in effect, be legislating instead of interpreting the quoted provisions of the act. If the Legislature had meant for the probationary term to be three scholastic years, it could easily have said so, and it is to be observed that in Section 49 of the act the term “scholastic year” is used where scholastic year is meant- — -that is, “No person shall be appointed to teach without a written contract for the scholastic year * * *.”

The Louisiana Civil Cede directs that the words of a law are generally to be understood in their most usual signification. Art. 14, La.Civ.Code. The werd “year” in its ordinary signification means a period of 365 days — or 12 months. Black’s Law Dictionary (DeLuxe 3d Ed.) p. 1865; Webster’s New International Dictionary (2d Ed.) p. 2968. This is apparently the first case in the jurisprudence of this state in which a contention has been made as to the meaning of the word “year” in the Tenure Law. Our sister states having tenure laws similar to ours, however, have found that the word means 12 months. For instance, in Illinois, where the Tenure Law contains the provision that “Whatever any teacher shall have been employed in any district as a full time teacher for a probationary period of two consecutive years, * * * such teacher shall enter upon contractual continued service unless given written notice of dismissal * * * ”, the word “years” was held to mean years of 12 months. Anderson v. Board of Education of School Dist. No. 91 et al., 390 Ill. 412, 61 N.E.2d 562; see also Wilson v. Board of Education of School Dist. No. 126 et al., 394 Ill. 197, 68 N.E.2d 257; Carroll v. State Board of Education, 152 A. 339, 8 N.J.Misc. 859. We find nothing in our statute to indicate that the Legislature intended for the word “year” to have any meaning other than its ordinary one.

Relator contends that he became a permanent employee of the East Baton Rouge Parish School Board at the end of the scholastic year 1944-1945, and cites in support of this contention the case of Andrews v. Union Parish School Board, 191 La. 90, 184 So. 552.

This case, in our opinion, does not support his contention, for the meaning of the word “year” in the Tenure Act was not at issue in that case, and the case is authority simply for the proposition that under the Tenure Act neither a probationary nor a permanent teacher can be discharged without cause. It is true that the court there stated that, the relatrix therein having taught in the public schools of Union Parish for three years, her tenure ended on May 20, 1937, which was the end of the third scholastic year. However, in that case relatrix acquired tenure, not because she had taught three scholastic years, but because her dismissal by the school board, being improper under the act, failed to operate to prevent her from becoming a permanent teacher.

Respondents argue that the minutes of the school board’s meeting of June 7, 1945, naming the teachers for the 1945-1946 school session and omitting the name of Professor Piper as an employee at the McKinley High School, constituted a dismissal of relator by negative action, and that the adoption of a formal resolution by the board dismissing and discharging him was unnecessary. This statement from the minutes that the superintendent of schools informed the board that relator was not recommended for reappointment and permanent tenure, the omission of the name of Professor Piper from the list of teachers, and the written notification to relator on June 21 may or may not have constituted a valid discharge. Be that as it may, the minutes of the regular meeting of the school board on September 6 show conclusively that relator was dismissed and discharged as principal of the McKinley High School by formal resolution adopted by the school board, and that the school board acted affirmatively upon the written recommendation made to it by the superintendent, which was accompanied by valid written reasons and causes for the dismissal.

Further in compliance with the act, on September 7 Professor Piper was notified by letter signed by both the president of the board and its secretary that he had been discharged and dismissed, and a copy of the resolution of September 6 was enclosed with this letter. He had previously been informed repeatedly, of course, both in writing and by the superintendent verbally that he was not going to be recommended for tenure and would be discharged at the end of his probationary term.

The third paragraph of Section 48 of Act 100 of 1922, as amended, provides that any teacher found unsatisfactory by the parish school board at the expiration of his probationary term shall be notified by the board in writing that he has been discharged. This provision of the act which permits the school board to discharge a probationary teacher for cause at the expiration of the probationary term by complying with the Tenure Act was intended to give the board an opportunity to review the teacher’s record for the whole probationary period and to ascertain the teacher's competency, attention to duties, honesty, and other qualifications as a teacher. We are of the opinion that, under this provision, the school board should determine whether a teacher is satisfactory, and the teacher should be notified, if that determination is unfavorable to him and he is to be discharged, within a reasonable time after the expiration of the probationary period.

Inasmuch as relator’s probationary term in the instant case expired on August 20, 1945, the resolution discharging him, adopted by the board at its next regular meeting on September 6 and the notification to him by letter of September 7 were within a reasonable time after the expiration of relator’s probationary period, under the facts and circumstances of this particular case.

It is true that the act provides that in the absence of written notification a probationary teacher shall automatically become a regular and permanent teacher, and with this provision in mind the school board in such cases should act, as stated hereinabove, promptly, and certainly within a reasonable time after the expiration of the probationary term, if the teacher is not to acquire the status of a permanent teacher.

Counsel for relator has- given no reason why the written reasons advanced by the school board for the discharge of the relator are not valid ones, and has made no argument that the reasons given for such discharge are not supported by the evidence. The reasons for dismissal of a teacher are largely in the sound discretion of the school board, and, unless it is clearly shown that it has abused that discretion, the courts will not interfere. See Kennington et al. v. Red River Parish School Board, La.App., 200 So. 514. In our opinion the reasons given in the instant case are valid ones, and they are sustained by the evidence; therefore, the relator has not shown that the school board abused its discretion.

Counsel for respondents reiterate a contention, which they made in a motion to dismiss this appeal, that the question of reinstatement is now a moot one inasmuch as the relator stated that he was not teaching and did “not intend to teach again in the public schools or state educational institutions of Louisiana” in an application signed by him, addressed to the Board of Trustees, Teachers’ Retirement System, which was received by that board during the pendency of the appeal in this court. In order to determine whether relator is entitled to any relief for which he prayed it has been necessary for us to consider the merits of his argument that he was not lawfully discharged, and our conclusion as to this argument disposes of all contentions regarding his reinstatement.

For the reasons assigned, the judgment appealed from is affirmed at relator’s costs.

O’KIELL, C. J., and HAMITER, J., taking no part.


author: PONDER, Justice.

text:
    213 La. 899
    RAWLS v. BROTHERHOOD OF RAILROAD TRAINMEN INSURANCE DEPARTMENT, Inc.
    No. 38518.
    Supreme Court of Louisiana.
    June 1, 1948.
    Clarence F. Favret, of New Orleans, for plaintiff and appellant.
    Beard & Blue, Leslie P. Beard and George R. Blue, all of New Orleans, for defendant and appellee.
   PONDER, Justice.

The plaintiff, the named beneficiary in two insurance policies issued to her husband, 'Clayton E. Bourg, the insured, who died on October 27, 1945, brought this suit against ■ the defendant insurer, under the accidental death benefit clauses of the policies, seeking to recover $3,300.00, with 6% annum, interest from June 1, 1945 until paid. She alleges that her husband’s death resulted from an accident, directly and independently of all other causes . The defendant, in its answer, denies that the death of the insured resulted from an accident, directly and independently of all other causes. The defendant avers that the insured’s death resulted from an altercation in which the insured was the aggressor. When the case was called for trial, the plaintiff was placed on the stand and testified to, her marriage with the insured and to the reputation and peaceful deposition of her husband. Her counsel rested the case subject to the right of rebuttal, believing that he had established a prima facie case by showing that the deceased had come to his death by violent means and that it was incumbent upon the defendant to prove that the deceased’s death was brought about by 'his wrongful act as a special defense to1 the case. The defendant immediately rested its case and moved for a judgment on the face of the pleadings. Thereupon, counsel for the plaintiff informed the court that, if he was mistaken in his interpretation of the scope and effect of the defendant’s answer, he be permitted to place additional witnesses in order to prove the plaintiff’s case. At that time all the witnesses were still present in court. Counsel for the defendant objected to the reopening of the case and the court took the matter under advisement. Subsequently, the court gave judgment in favor of the defendant and dismissed the plaintiff’s suit. The plaintiff has appealed.

If we took the position that the aver-ments in the defendant’s answer were an admission that the insured came to his ■death by accidental means and that the ¡further averments that the insured’s death was brought about by his own wrongful act were a special defense which the defendant had failed to prove, the reversal of the judgment of the lower court would be equivalent of denying the defendant the right to prove the special defense. While, on the other hand, if we affirmed the judgment under the circumstances in this case, it would be equivalent to denying the plaintiff her day in court. She should not be deprived of her legal rights because of an error on the part of her counsel. We have on numerous occasions remanded cases to the lower court in order that the true situation may be shown and substantial justice done.

We reviewed the jurisprudence of this Court in Succession of Robinson, 186 La. 389, 172 So. 429, and pointed out that the modern trend in the trial of lawsuits is to render justice upon the merits of the controversy rather than to defeat justice upon technicalities. We demonstrated therein that it was our duty to interfere when a trial court exercised a discretion vested in it in such a manner that an injustice is done or substantial rights are lost through mere technicalities.

The refusal of the trial judge to reopen this case, when the error of counsel was sought to he remedied while all the witnesses were still present in court, is arbitrary and cannot be upheld because it would result in the denial of substantial justice on a mere technicality.

For the reasons assigned, the judgment of the lower court is reversed and set aside. The case is remanded to the lower court in order that the litigants may present evidence to support their contentions. The cost of this appeal is to be paid by the defendant and all other costs are to await the final disposition of the cause.

O’NIELL, C. J., absent.


author: KENNON, Judge.

text:
    WHITE v. CITY OF ALEXANDRIA.
    No. 7208.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1948.
    Rehearing Denied June 28, 1948.

      Frank H. Peterman, of Alexandria, for appellant.
    T. C. McLure, Jr., of Alexandria, for appellee.
   KENNON, Judge.

The City of Alexandria, Louisiana, has brought this appeal from a judgment awarding plaintiff $600 damages for injuries sustained when plaintiff tripped and stumbled against a raised portion of the sidewalk in the 1000 block of Ninth Street in that city.

Plaintiff alleged that at the point where the accident occurred, one square of the sidewalk was several inches higher than the adjacent square; that the accident occured in darkness; that there was poor illumination so that she did not see the condition of the walk and stumped her right toe against the raised portion, causing her to fall. She further alleged that the walk was in a thickly populated section of the city; that the unsafe condition had existed for many months and the defendant or its agents either knew, or should have known, of the defect; that she knew not of the dangerous condition of the sidewalk and was using more than ordinary care and prudence at the time of her injury. She prayed for damages totaling $18,050.

The City answered, admitting that the difference in level existed, but averred that the sidewalk at the place in question was “reasonably safe for persons exercising ordinary care” and set forth that such difference in levels of sidewalks is a matter of common knowledge in Alexandria and in other cities; that the city could not be expected to maintain its sidewalks free from every inequality. In the alternative, the city pleaded that the plaintiff knew or should have known of the condition; that she could and should have seen where she was walking and, had she used ordinary care, she would not have tripped and fallen and that her contributory negligence was a legal bar to her recovery.

The record sustains the finding of fact made by the learned District Judge in his written opinion.

Plaintiff stumbled over a raised or jutted portion of the sidewalk about two inches high. This condition had existed for several years. Plaintiff did not habitually use this street. It was after dusk. The accident occurred about mid-way of the block and illumination from neither of the corner lights was good.

In the case of Lemoine v. City of Alexandria, 151 La. 562, 92 So. 58, 59, the Supreme Court of Louisiana- — citing Louisiana cases and other authorities there detailed — set forth the following doctrines applicable to the case before us. We quote below from that decision:

“Municipal corporations owe it to the public to keep the sidewalks in such a condition that pedestrians who are ordinarily careful will not be exposed to injury. The right of the citizen to recover damages for injuries sustained by reason of the failure of the municipal corporation to discharge the mandatory duty thus imposed on it is beyond question.”
“All that is required of a pedestrian upon a street or sidewalk is ordinary care, and this does not necessitate his looking constantly where he is going. He has the right to assume that the roadway is safe for travel.”
“The general rule applicable to cases of this character is that persons lawfully making use of the streets and sidewalks within the limits of municipal corporations have the right to assume that they are safe, and that, where one sustains injury by reason of the unsafe condition of such thoroughfares, the burden to show that he contributed to such injury by his own negligence rests upon the corporation.”

This Court in the cases of Holbrook v. City of Monroe, La.App., 157 So. 566, and Robinson v. City of Alexandria, La.App., 174 So. 681, followed the law as above set forth by the Supreme Court in the Lemoine case.

In the case before us, we find that the sidewalk was in a condition dangerous for pedestrian travel, particularly at night. As stated by the District Judge in his written opinion, it is true that the concrete slab at the point was only two inches higher than the adjacent slab, but as was noted in the Robinson case, supra, where there was .only a 1}4 inch difference, such a condition furnishes "a perfect setting for one to hang her toe under and cause her to fall.”

The defect had existed for several years. Although there was no proof that the city had actual knowledge of the ■defect, they are bound by the doctrine of constructive notice which was set forth by this Court in the Robinson case, supra, namely, that if a defective condition exists for such a period of time that the municipal authorities by the exercise of ordinary care and diligence should have known of its existence, notice of same will be imputed.

The District Judge correctly found that plaintiff in this case was exercising •ordinary care. The defendant has not met the burden of showing that any negligence •on her part contributed to her injury.

Able counsel for defendant corporation has cited Louisiana cases in Which recovery was denied to persons injuring themselves as a result of sidewalk inequalities. Our ■examination of these cases show that most of them contain special circumstances not present in the case before us. For instance, in the first case cited by defendant (from our own Court), McGurk v. City of Shreveport, 2 So.2d 687, the facts, set forth in the opinion, show that the elevated portion (which caused the injury) lay next to and was close to the wall and flattened into the normal slope with no blunt edges present. In another case, Carsey v. City of New Orleans et al., 181 So. 819, the Court of Appeal of the First Circuit found that no evidence was offered to show that the alleged vice in the pavement had existed for a sufficient length of time for the city to be charged with constructive notice. In the case of Goodwyn v. City of Shreveport, 134 La. 820, 64 So. 762, cited by defendant’s counsel, the opinion noted that the higher sidewalk did not end abruptly but sloped at an angle of 45 degrees toward the lower.

The cited cases of Brown v. City of New Orleans, 7 La.App. 611, and Suthon v. City of Houma, La.App., 146 So. 515, appear to be in conflict with the doctrine and holding of the Lemoine, Robinson and Holbrook cases. However, the greater weight of authority is with the plaintiff and in accordance with the finding of the District Judge.

The District Court awarded $600 in damages. Plaintiff has answered the appeal requesting an increase to $2500.

Defendant has not made an issue of quantum in this Court. We believe that the award given was a fair one.

The judgment is affirmed, with costs.


author: TALIAFERRO, Judge.

text:
    JOYNER et al. v. WILLIAMS et al.
    No. 7191.
    Court of Appeal of Louisiana Second Circuit.
    April 30, 1948.
    Rehearing Denied May 31, 1948.

      Theus, Grisham, Davis & Leigh, of Monroe, for appellants.
    McIntosh, Sims & Hester, of Oak Grove, and George Wear, of Columbia, for ap-pellees.
   TALIAFERRO, Judge.

Plaintiffs, the mother and father of Harvey Leottis Joyner, age sixteen, sued Lawrence E. Williams and The National Mutual Casualty Company of Tulsa, Oklahoma, the carrier of public liability insurance on his automobile involved herein, to recover damages because of the minor’s death on May 3, 1947, allegedly occurring from the negligence and negligent acts of the said Williams.

The facts of the case, excepting some non-essential details, are not seriously in dispute. Williams, accompanied by a young man named Willie Lee, was traveling westerly in his Hudson sedan on highway No. 11, in West Carroll Parish, Louisiana, at a speed of about fifty miles per hour when the accident occurred. Ahead of him at the time was a Ford car going in the same direction that was owned and driven by one Luther Rogers. It was traveling at a speed of not over forty miles per hour. The highway is eighteen feet wide, is topped with a black asphaltic composition, along both sides of which there are unpaved shoulders four feet wide. Several hundred feet in advance of the Rogers car the deceased boy, mounted on a gentle, family pony, was proceeding easterly along the south shoulder. Both drivers observed the boy and horse several seconds prior to the accident. The horse was then going at a moderate speed. Williams had in the meantime so reduced the distance between himself and the Rogers car that it was necessary to pass it or lessen his speed. He elected to go ahead and pulled his own car over onto the left lane and when less than one hundred feet from the front car he observed that the horse had shifted its position from the shoulder to the left lane and was rearing upon its hind legs. There is some uncertainty as to whether the horse reared up once or twice. We believe it did so twice. Mr. Rogers testified that when it first reared, his own car was not over twelve feet from it. When Williams first noticed that the horse was on the surfaced part of the road, out of control, he quickly applied his brakes and endeavored to regain his side of the road, but had not fully done so when the horse fell upon the hood and cowl of his car. He was then astride the line that bisects the road. Just prior to this, the boy fell to or was thrown from the horse onto the road. He was run over and dragged some sixty feet by the Williams car and died within an hour.

We conclude from the testimony and physical facts that the horse was on its hind legs when Williams’ car got to it, as contact of one 'of the hoofs with the left headlight broke it, and in addition, its body, as said before, to some extent fell upon the hood and cowl. However, strange as it may seem, no bones of the horse were broken and soon after the tragic accident it was observed grazing near the scene.

The accident is accredited to the negligence of Williams in the following respects, to-wit:

Excessive speed; failure to maintain proper lookout; not operating his car on his right side of the highway; attempting to pass a vehicle without taking into proper consideration traffic conditions ahead of him; by following a forward vehicle without proper regard to speed or traffic conditions ; driving his car with defective brakes, and failure to properly apply the brakes.

Defendants deny that the accident occurred from negligence of any character on the part of Williams. They allege that when he began the effort to pass the Rogers car, the highway ahead was clear and he was justified in making the effort; that the horse from fright at the front car or from other cause or causes, not attributable to Williams, or at the command of its rider, suddenly came onto the highway, reared and threw the boy or he jumped to the ground in front of the Williams car too close to escape being run over, notwithstanding Williams put forward every effort possible to do so; that the accident was simply unavoidable in view of the well established facts. In the alternative, defendants plead that should it be found and held that Williams to any extent was negligent, in connection with the accident, that plaintiffs are nevertheless barred from recovery, because of the contributory negligence of their deceased son.

There was judgment in favor of Mrs. Joyner for $6,000.00 and in favor of Mr. Joyner for $2,000.00. Defendants prosecute appeal to this court. Answering the appeal, plaintiffs pray for substantial increase in the amounts of the judgment.

The accident occurred about the hour of 10:30 A. M. The day was clear and the road surface was dry. There were no obstacles to nor interference with vision of either of the motorists or of the deceased. There was a curve several hundred feet east of the locus of the accident but this to no extent contributed to it. Both cars had cleared the curve and had straightened out on the tangent that leads from its western end.

The lower court gave written reasons for its judgment. Three points are made to support it. Primarily, it was found and held that the horse having become frightened was the moving cause of the accident but further held that Williams’ conduct in trying to pass the Rogers car when-so near the horse caused it to become frightened and its rider to lose control. This is the most serious question in the case, as we view it. Thereon hinges its outcome. The other two points stressed by the trial judge relate to the charge of not keeping a proper outlook and lack of efficacy of the brakes. Neither is pivotal.

The question that arises and may be pertinently asked is: Was the action of Williams in trying to pass the Rogers car at a speed of fifty miles per hour under the conditions and circumstances then existing, that of an ordinarily prudent and careful man? If not, did his action amount to negligence of such character as to render him responsible in damages for the result of the accident?

The country about the locale of the accident consists of well developed farm lands. These join the highway on both sides. Traffic at the time was light. It has been held, and properly so, that a speed of from fifty to sixty miles per hour through ■open country is not excessive. Gauthier v. Foote et al., La.App., 12 So.2d 9-13. This rule, of course, is subject to exceptions. Traffic conditions necessarily have to be considered in determining whether such rate of speed is or is not excessive. It follows that as a general rule, in the open country, it is permissible for a motorist traveling at said speed to overtake and pass another.

The horse in question had been in the Joyner family’s possession for four years. It was six years old when the accident occurred. Plaintiffs’ children rode and used it daily. It habits and temperament were excellent. It had never become frightened ■or unruly at the presence or approach of an automobile. But, all persons who have knowledge of the characteristics and dispositions of horses and have had expereince in handling them, know that regardless of their gentleness they never become absolutely immune from fright.

In the early days of motor car traffic in this state, motorists were required to drive slowly and cautiously when meeting or passing a vehicle drawn by animals, but as time passed and domestic animals of all kinds became accustomed to the presence .and noise of such vehicles, the rigor of the law was relaxed. Now a motorist is not required to reduce his speed at all when meeting or passing animal drawn vehicles or mounted horses on the highway, unless he observes that the animal or animals are frightened or indicate in some manner that they are disturbed because of his presence.

The facts of the present case make it unique. The jurisprudence of this state is without a precedent. The fact that there .are three angles to the picture remove it from the ordinary class of cases that involve collisions between animals and cars ■on the public highways. Here, we have a situation that should have impressed the •operator of the rear automobile with the imperative necessity of acting with the •utmost precaution. The location of the horse, its rate of speed, and of the Rogers •car and its speed, must have indicated clearly to Williams that to pass the forward car when and in the manner he attempted, would put all three in close proximity to each other; that the horse would have to its left the Rogers car and be confronted with the Williams car moving toward him at a rapid speed. Under such circumstances, knowing the disposition of horses, was Williams warranted in assuming that the horse would not become excited and unmanageable, and would sot do the unexpected? We do not think so. It is our opinion that the situation, fraught with dire possibilities, created by Williams’ action in the respects mentioned, caused the horse to act as it did. His negligence in this respect was, in contemplation of law, the real cause of the accident and commits him to liability for its results.

The lower court, in its reasons for judgment anent this question, said:

“The action of the horse clearly caused the trouble, and if defendant did nothing to cause this action, and if he were acting in a reasonably prudent manner in attempting to pass the Ford just when he did, then he should not be held liable in damages. We all know that children and animals may be expected to do the unusual and unexpected.
* * • * * * *
“What a driver must do is not to create any unusual situation, which might cause nervousness or fright in such animal. This is exactly what defendant did here. When he started to pull over he wottld, at least for a short while, appear headed directly at the horse, and this while traveling pretty fast. Then too this maneuver would place two cars approaching at one time, side by side, which may never have happened to the horse before, since a prudent driver should have slowed down, and waited a few seconds before passing the car ahead. Something surely caused the horse to scare. We could hardly think that the rider pulled him over into the road, nor would we conclude that an insect might have stung him just at this time. The fact that the horse was meeting two cars, one moving quite fast and which must at least pass very near him, instead of the usual one car on the far lane from him, could easily have caused the fright. Defendant brought about this condition, and we do not think a reasonably prudent driver would have done so. Therefore, he is liable in damages.”

We concur fully in this line of reasoning.

It has often been held by this and other appellate courts of the state, that in an emergency a motorist is not, nor should he be, expected to make the same calm and accurate decision as he could and would otherwise make in an effort to avoid a 'collision. But this rule does not protect a motorist who because of his own negligence, brings about the emergency. It appears here that the Williams car was sixty feet from the horse when the brakes took effect. Skid marks demonstrate the correctness of this conclusion. While going this distance plus that covered between the time the horse’s unruly action was observed by Williams (some thirty feet) and the time the brakes became effective, Williams pulled his car to his right not over five feet. To escape the impending collision it was imperative that he return to his (right) lane of the road behind the Rogers car. We can perceive of no good reason why this was not done while covering the mentioned distance. He did quickly exercise good judgment in applying the brakes and simultaneously therewith he should have cut his car to the right as far as it could go. Had he done this, the collision would have been averted.

It is true, the car could not have been brought to a stop within ninety feet or thereabout, but it is not true it could not have cleared the left lane within that distance, especially after its speed had been reduced from application of the brakes. All facts and circumstances considered, we feel warranted in holding that Williams was negligent in not regaining the right side of the road in time to avoid running over the boy, whose body was south of the meridian line.

The plea of contributory negligence is not well founded. Because the boy lost control of the animal does not imply that he did something to bring about that result. Surely, under the existing circumstances, he would not have unwittingly reined the horse upon the highway nor by any other act caused it to go from a position of safety to one of extreme danger.

Plaintiffs were married on February 11, 1923. Nine children blessed their union, six of whom are living. However, marital infelicity marred their conjugal relations, and they have been living apart for several years. It had been two or three years since Mr. Joyner lastly visited the family from his home in Mississippi. The deceased son visited him there from August to November, prior to his death. At the time of the accident suit for divorce by the wife was pending in West Carroll Parish. Judgment in her favor was rendered therein a few days thereafter.

Mrs. Joyner, with her unmarried children, lived on a farm and from its produce earned a living for them and herself. The deceased son labored thereon and rendered such assistance as his years and experience allowed. He contemplated enlisting in some branch of the military service of his country and thereby enable himself to provide his mother with financial assistance he otherwise would not be in a position to render.

Mr. Joyner made no contribution to the family’s financial support, but did “help” the deceased son when he visited with him. Because of the foregoing facts and conditions the lower court in fixing the awards discriminated heavily in favor of the mother.

The impact broke many bones of and crushed the boy’s body in several places. He was instantly rendered unconscious but after being pulled from beneath the car and cold water being applied to his face, ie-vived sufficiently to give his name and residence. From then on he was unconscious to the end. Obviously, very little damages for pain and suffering by him are recoverable. It is equally obvious that his tragic death fell most heavily upon the mother, who without any help, financially or otherwise, from the father, has valiantly carried on to the utmost of her ability, cared for, nurtured and supported this large number of helpless children. No doubt her grief and sorrow are far reaching. She has sustained extensive loss in a material way on account of the horrible death of this dutiful son.

The award of damages in favor of Mrs. Joyner appears to be fair. We could give no good reason for altering same although appellants urge us to do so. So far as concerns the award in favor of Mr. Joyner, we think it is excessive. The foregoing resume of his conduct should convince anyone that his love and affection for the dead boy and his interest in him was not nearly so great as it should have been. We believe that $1,000.00 will adequately compensate him. See Poindexter v. Service Cab Company et al., La.App., 161 So. 40; Russell v. Taglialavore et al., La. App., 153 So. 44.

For the reasons herein assigned, the judgment in favor of Mrs. Joyner, appealed from, is affirmed; and the judgment in favor of Mr. Joyner is amended by reducing the amount to $1,000; and as thus amended, said judgment is affirmed. All costs are taxed against the defendants.


text:
    MERRITT v. SMITH.
    No. 7185.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Rehearing Denied May 31, 1948.
    P. E. Brown, of Arcadia, for appellant.
    'Goff, Goff & Caskey, of Arcadia, for ap-pellee.
   KENNON, Judge.

Plaintiff filed this petitory action praying to be decreed owner of forty acres of land in Bienville Parish, Louisiana, including the tract of five acres (later shown on survey to be nine and a fraction acres) in the southeast corner, which he alleged that defendant possessed and refused to deliver to plaintiff.

In his answer, defendant set forth that he had secured a judgment of court, in a possessory action, quieting his possession of these southeastern corner acres and further setting forth that he had acquired same in August, 1918, as a portion of the “Leary Place;” that this contested property had been a portion of and fenced in as a part of the Leary place for more than thirty years.

By way of reconvention, he set forth that plaintiff had wrongfully cut and removed more than 50,000 feet of timber and prayed for judgment in his favor for its manufactured value, or, in the alternative, for the stump value.

In the supplemental answer, defendant showed that the portion of the forty acres under the old fence and in controversy here, was nine and a fraction acres.

During the trial defendant filed a plea of prescription of thirty years.

From a judgment in favor of plaintiff, defendant prosecutes this appeal.

The learned District Judge found that plaintiff had a valid recorded title and that defendant had no record title to the land in controversy. He did find however that defendant and his authors in title were record owners of the adjoining property and that they had exercised “possession and dominion” and had kept the land in controversy under fence with their own property for more than thirty years preceding the filing of suit.

The District Court based judgment on the proposition of law that “possession of prior parties cannot he tacked on to defendant’s possession to make up the thirty years required by the Code.” He cited Sibley et al. v. Pierson, et al., 125 La. 478, 51 So. 502; Emmer v. Rector, 175 La. 82, 143 So. 11; Buckley v. Catlett, 203 La. 54, 13 So.2d 384; Broussard v. Broussard, 8 La. App. 635.

We make the following finding of fact.

Plaintiff has a valid record title to the forty acres, including the land in controversy. Neither the defendant, Dr. Smith, nor the Learys, from whom he acquired title, have ever had any recorded title to any portion of the forty acres of land described by plaintiff in his petition.

We find that at the time defendant purchased the adjacent property on August 9, 1918 from the widow and other heirs of Calvin J. Leary, the tract here in controversy was fenced in with and considered, by both vendors and vendee, to be a part of the Calvin J. Leary lands, the actual description of which included the adjacent lands in SE^- of SE1/^ Section 30, Township 18 North, Range 7 West, and that the Leary family had had physical possession of the land in controversy and had had same under the same fence, with their adjacent property to which they had a deed, since April 8, 1896, when one T. A. Walker deeded this adjoining property to J. C. Leary; that J. C. Leary held possession until his death; that his widow and children continued this possession up to July, 1912, when they all joined in a deed to C. J. Leary, who held possession of the same until his death and that his heirs retained possession, and on the 9th of August, 1918, all these heirs of C. J. Leary joined in a deed to Dr. R. E. Smith, defendant herein; that this deed described the property adjacent to the land in controversy; that this deed provided that the vendors should retain possession until January 1, 1919 and that when the defendant, Dr. R. E. Smith, went into possession of the lands described in the deed, he also went into possession of the portion of the SW^ of SE^, 30-18-7 now in controversy between him and plaintiff.

On December 9, 1919, defendant sold the adjacent property and other lands to E. R. Aubrey, from whom he reacquired the same property on January 28, 1922. Aubrey exercised possession over these corner acres and since his repurchase in 1922, defendant has been again in possession of the property in controversy; that the possession of the Learys, Smith, Aubrey and Smith was continuous and uninterrupted, passing with the possession of the adjacent lands to successive heirs and vendees from April 8, 1896 to the date suit was filed.

Plaintiff has a valid recorded title to the forty acres claimed, including the nine acres in dispute. Defendant has a valid recorded title to the adjacent property — ■ under the same fence with the nine acres in controversy — and he and his predecessors in title have since 1896, held complete possession of the nine acres in controversy to the exclusion of all persons, including plaintiff and his authors in title. The case turns upon the validity of defendant’s contention that he can, for the purpose of establishing prescriptive title under Article 3548, Civil Code, attach on to his own adverse possession, the continuous adverse possession of the property in contest by his authors in title to the adjoining property.

It appears that the identical point in controversy was passed upon by the Supreme Court in the case of Buckley v. Catlett, 203 La. 54, 13 So.2d 384, 386. We quote from that case which involved the title to a portion of a certain Lot 4, north of a public road: “Anent the pleaded acquisitive prescription of 30 years, it is not disputed by defendant that neither he nor any one of his predecessors ever held possession of the contested part of Lot 4 for the required period of time. But he contends that by adding his possession to that of his authors, a prescriptive title has been acquired by him. On this subject, it is well established in our jurisprudence that, for the purpose of claiming land under the prescription of 30 years, several successive possessors cannot be joined to show a continuous adverse possession, unless there is a privity of estate or contract between the occupants. The reason for this rule is that the several acts of adverse possession are construed as nothing more than a series of independent trespasses, and on the termination of each of those acts the possession returns by operation of law to the rightful owner of the immovable. Sibley v. Pierson, 125 La. 478, 51 So. 502; Harang v. Golden Ranch Land & Drainage Company, supra [143 La. 982, 79 So. 768]; Emmer v. Rector, 175 La. 82, 143 So. 11.” (Underscoring ours).

In that case the opinion discloses that defendant’s author in title had a deed transferring “all the land in Lot 3 north of public roadthat no mention was made in the deed of Lot 4, but that the purchaser took possession of not only Lot 3 but also the disputed portion of Lot 4, and that' some six subsequent deeds brought the same land down to defendant, each of which described the lands north of the public road as, “all the land in Lot 3 north of the public road” with no mention of any portion of Lot 4. The opinion further stated that:

“Immediately upon the execution of each of the mentioned instruments, except the last sheriff’s deed, the named transferee went into possession of both Lot 3 and Lot 4' north of the public road, notwithstanding only Lot 3 was described. Defendant Catlett has never surrendered the possession that he acquired in 1935.
“That part of Lot 4 north of the road, the disputed tract, has been enclosed by fence since 1900; and, in addition to the structure built thereon by Ross in 1900, Mrs. Catlett erected a house on it in 1914.”

Thus it is clear that in spite of the open, continuous and uninterrupted possession for more than thirty years by defendant and his authors in title, the plea of prescription was not maintained, the Court adhering strictly to the proposition expressed in the syllabus that: “ * * * successive possessors cannot be joined to show a continuous adverse possession unless there is a privity of estate or contract between the occupants. Civ.Code, art. 3548.”

This holding seems to be stricter than that set forth by the Supreme Court in earlier holdings. In the case of Harang et al. v. Golden Ranch Land & Drainage Co., 143 La. 982, 79 So. 768, 780, the Supreme Court on the point as to what constitutes such privity as to permit the possession time of successive possessors to be added for the purpose of establishing title by prescription under Civil Code, Article 3548, quoted from 1 R.C.L., page 718, as follows: “ ‘Between Whom Privity Exists. — Privity denotes merely a succession of relationships to the same thing, whether created by deeds or by other act, or by operation of law. If one by agreement surrenders his possession to another, and the acts of the parties are such that the two possessions actually connect, the latter commencing at or before the former ends, leaving no interval for the constructive possession of the true owner to intervene, such two possessions are blended into one, and the limitation period upon the right of such owner to reclaim the land is thereby continued; indeed that purpose of continuous possession is the continuous ouster of the owner.’ ”

Our brothers of the First Circuit in a recent case, Ford v. Ford et al., La.App., 34 So.2d 301, 304, noted the above quotation in the Harang case, supra, and held in the case before them: “ * * * all of the elements of the sort of privity defined existed between the parties holding possession * *

From the facts disclosed by a reading of the opinion, it appears likely that the holding in the Fond case constitutes a more liberal interpretation of what is meant by the word “privity” than was held in the Buckley v. Catlett case.

Should we follow the definition of the word “privity” as given in 1 R.C.L., page 718, and quoted in the Harang case, and apparently followed in the Ford case, supra, we would be inclined to hold that a privity of possession between defendant and his authors in title has been established under the facts shown by the record and above outlined.

The land here in controversy has been out of possession of plaintiff and his authors in title and a part of the fenced pasture to the Leary place since before 1900, and, since the successive owners of the Leary place, including the defendant herein, have used the land in controversy and kept same under the same enclosure with the rest of their pasture since before 1900, and since this more than thirty years of possession of the successive owners has been continuous and uninterrupted, and there has been a surrendering of possession by agreement one to another, the several adverse possessions have actually connected, leaving no interval for the constructive possession of the true owner to intervene. Under these circumstances, we would be inclined to sustain defendant under his plea of the prescription of thirty years on the theory that privity—as defined in 1 R.C.L., 718—did exist. However, the facts and circumstances of the Buckley v. Catlett case, supra, were such as to show the same successive connecting adverse possessions and in view of the Supreme Court’s overruling of the plea of prescription in that case, we consider it our duty to overrule defendant’s plea in the case before us.

The judgment is affirmed, with costs.


text:
    MURRY v. SALLEY et al.
    No. 7176.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Rehearing Denied May 31, 1948.

      Hudson, Potts, Bernstein & Davenport, of Monroe, for appellants.
    Walker & Wright, of Ruston, for ap-pellee.
   KENNON, Judge.

Plaintiff, individually and as father of his minor son, Joe A. Murry, filed suit against defendants, the driver, owner and liability insurer, respectively, of the truck which he alleged caused personal injury and property damage in a collision with plaintiff’s automobile.

The petition alleged that plaintiff’s son was driving plaintiff’s automobile westerly along California Avenue—U. S. 80—in the city of Ruston, Louisiana, and approaching the intersection of South Trenton Street at approximately 7:00 p. m. on the night of .December 28, 1946; that defendant’s truck and trailer was loaded with steel beams so long that the coupling pole between the truck and trailer was ineffective and the sole tie-in between the truck and trailer was the load of steel beams; that at the time defendant’s truck entered the intersection, his son was approaching same on the favored four lane highway, while defendant’s truck came into the favored street without stopping; that the truck driver did not pass beyond the center of the intersection before beginning his left turn as required by the highway act; that the driver made the highly dangerous left hand turn without ascertaining that he could enter the favored street without jeopardizing the safety of those already using same and that his son saw the headlights of the truck and a light on the rear of the truck portion of defendant’s vehicle but no lights on the side of the trailer to indicate that the highway was blocked; that the trailer had no bed or sides, and, since the beams were four feet or more above the pavement, plaintiff’s son could see beyond the trailer and did not see the beams until he was within a' very few feet of same; that he made a swerve to the right but the trailer had blocked his means of entry into South Trenton Street by cutting the corner short; that his son was driving at a safe speed, had dimmed his lights and was exercising reasonable care and, under the circumstances, was justified in believing that the truck was not pulling a trailer.

After an exception of no cause or right of action was overruled, defendants filed a joint answer admitting ownership, liability coverage, etc., of the truck involved and setting forth that the truck made a left turn into the highway in a legal manner and alleged that the accident occurred as a result of Murry’s driving at a reckless speed, too great to stop within the distance illuminated by the car’s headlights; that young Murry saw the lights on the truck, including two side clearance lights, when he was a sufficient distance to have stopped before striking the trailer; that after discovery of the truck, Murry began to move his car to the right, but he did not slow down or take other steps to bring the car under control and that Murry failed to keep a proper lookout and see the clearly visible and properly lighted trailer. In the alternative, defendants alleged that should the Court find any negligence on the part of the truck driver, plaintiff’s recovery is barred by the contributory negligence of his son as set forth above.

The District Court, after trial on the merits, gave judgment for $1388.60. Defendants have appealed. Plaintiff answered, asking for an increase in the judgment to $6,000.00.

At the time of the accident, defendant’s truck was loaded with two layers of steel beams, each eight inches high, one end of the beams was chained to the bolster slightly in rear of the truck cab. Chains were placed around the beams at two points along their forty foot length and in front of the trailer. The rear portion of the beams was chained to the trailer bolster. The over-all length of the truck-tractor, channel iron beams and trailer with bolster was fifty-five feet.

The driver testified that as he reached the four lane highway from the less favored street, he stopped the truck and, seeing no traffic in either direction, proceeded into the highway and into his left turn; that he devoted his attention to the trailer, the wheels of which were some thirty-five feet in rear of the truck, and did not notice plaintiff’s car until it was within ten or fifteen feet of striking this load; that he had two headlights burning, five clearance lights on the cab and three string lights on the' load and that the truck-tractor portion of his vehicle had passed the center of the street and was on its own right side.

Young Murry testified that at the time he first saw the truck the front portion had half way turned so he saw one headlight and enough other lights to indicate to him that it was a stake body truck almost completely on its own side of the four lane highway; that he took his foot off the accelerator and eased over to the right side; that his lights were on dim and did not illuminate the steel beams until he was a few feet away, when he and his companion saw the rear wheels as they entered the highway and that he made a sudden turn to the right but there was insufficient room between the load and the east curb of Trenton Street, and the collision resulted.

Murry’s companion said he saw the truck’s headlights and cab lights and noticed that young Murry eased off the accelerator. He did not realize that the highway was blocked by a lengthy vehicle until Murry’s dimmed headlights showed up the wheels and Murry yanked the car to the right. He testified that the car was close to the right curb, and that there was not room enough between the rear trailer wheels and the east curb of Trenton Street for the Murry car to pass through when its driver turned sharply to the right in his efforts to avoid the accident. This fact was verified by the filling station operator who immediately came to the scene. He also testified that the coupling pole (a short length of which extended forward from the trailer and was tied to the bottom of the steel beams when the collision occurred) had come through the car grills; that the steel beams were across the car, which was three feet from its right curb, and extended back into Trenton Street.

The facts surrounding the collision are not in serious dispute. The truck had an over-all length of fifty-five feet. Its load of forty foot steel beams rested on the front and rear bolsters with a distance of approximately thirty-five feet in which the beams became both load and coupling pole. •With this type of long load, the front portion of the coupling pole could not be used and was discarded. The rear portion was chained to the bottom of the beams near the rear wheels. The truck had normal headlights with a row of lights over the cab and a clearance light at the front, center and rear of the forty odd foot space behind the cab. The four lane highway was thirty-six feet in width. The front wheels and tractor wheels (as distinguishable from trailer wheels) had crossed the center line and the truck-tractor portion of the vehicle had assumed its normal east-west direction on the south half of the highway. At the time of the impact the forty foot steel beams extended diagonally from the front (tractor supported) bolster across the two north lanes of the four lane highway and into Trenton Street. When plaintiff’s car was approximately fifteen feet away, his dimmed lights revealed the trailer wheels as they entered the highway. It was then that plaintiff’s son turned or yanked the car to the right, too late to stop it from going in under the steel beams (whose bottom was four feet three inches above the highway) and ramming the coupling pole through the car, striking the trailer wheels and bolster and causing the steel beams to fall across the hood.

At the time of impact, the truck had negotiated the north eighteen feet of the highway and covered ten to twenty feet along its easterly route and was traveling approximately ten miles an hour. Granting that the driver had stopped at the intersection, a fair estimate of his average speed in covering this twenty-five feet would be approximately five miles per hour. The driver of the car and his companion placed the car’s speed at approximately twenty-five miles an hour. Supposing that the car was traveling nearer fifty miles an hour than twenty-five, it would have, since the truck entered the intersection, covered about two hundred fifty feet or slightly less than the length of the city block. From all of the testimony, we conclude tha-t at the time the -truck entered the intersection its driver could have seen and should have seen plaintiff’s automobile as it approached on the favored highway. This driver in charge of such a vehicle should not have .entered the highway to begin the hazardous left turn under the circumstances. Sibille v. Highway Insurance Underwriters, La.App., 12 So.2d 625, 630. The language used by Judge LeBlanc in that opinion from the First Circuit is applicable to the truck driver’s situation in the case before us:

Considering the relative importance of the two roads and that Mr. Sibille was to make a left hand turn from the inferior of the two, he was under a stricter ■obligation of care and duty than was the •driver of the truck. It has repeatedly been 'held that making a left hand turn under such circumstances is one of the most dangerous maneuvers with which the driver .of an automobile is confronted.”

The above is particularly applicable in this case where the truck driver was proceeding into the highway with a vehicle fifty-five feet in length (five-feet above le-' ■gal maximum) and with a load presenting a scarcely visible profile to an approaching motorist.

At the time of the collision, the trailer wheels were so close to the east curb of Trenton Street that there was not room for plaintiff’s son, who made a sudden right turn in an effort to avoid the collision, to pass between the truck and the ■ curb and plaintiff’s theory is that defendant’s driver had cut the corner and thereby violated the highway law requiring one making a left turn to keep to the right of the intersection center and that this was .a separate act of negligence contributing to the accident. We do not think the record clearly establishes that it would have been possible for the driver to have successfully turned the fifty-five foot vehicle to the left in the highway and keep the entire vehicle to the right of the intersection center. The fact that the truck driver’s left half of Trenton Street was not left clear was not an act of negligence considering the length of the vehicle. However, the fact that his vehicle was of such length as to make the following of this rule difficult or impossible makes it the more important that the truck driver not. enter the favored highway and begin the hazardous maneuver of making his left turn from a less favored street into the main traveled highway until he was sure that same would not involve traffic already on the highway and visible to him at the time of entering.

Having found that the defendant was guilty of negligence, we next consider defendants’ charge that the son’s contributory negligence should bar plaintiff’s recovery.

Had the defendant’s truck and trailer been of the van type or other normal load, plaintiff’s son would have been guilty of contributory negligence under the well established doctrine that the operator of an automobile must operate his car at such speed and exercise such vigilance as to stop within the distance illuminated by his headlights. Sexton v. Stiles, 15 La.App. 148, 130 So. 821. Hutchinson v. T. L. James & Co., Inc., et al., La.App., 160 So. 447. Radovich v. Stipelcovich et al., La.App., 32 So.2d 394, and cases there cited.

However, the rule that the failure of the driver of a moving vehicle to observe an obstruction — usually in the form of a stationary object — constitutes such contributory negligence as to bar recovery is not a hard and fast rule. As stated by the Supreme Court in Gaiennie v. Cooperative Produce Co., Inc., et al., 196 La. 417, 199 So. 377, 379:

* * * the general rule is not inflexible * * * its application depends on the facts and circumstances of each case.”

In. the case before us, the obstacle across the right side of the highway as plaintiff’s son approached the intersection presented a profile only sixteen inches in thickness. It was of dark color and was suspended a little more than four feet above the pavement. Lights of the town and of far away approaching vehicles could be easily seen underneath as well as above this comparatively thin silhouette. The single small clearance type light provided to illuminate the approximately thirty feet of dark silhouette between the front and rear bolsters gave no adequate warning of the presence of this unusual road block. The fact that the lights were dimmed threw the beam downward and under the steel beams. The record shows that the driver did see the wheels of the trailer as they entered the highway and were illuminated by his lights and that he promptly turned to the right in an effort to avoid the collision.

We believe that the case at bar presents an exception to the general rule that one who runs into a object on the highway is guilty of contributory negligence and that plaintiff is entitled to recover under the authority of Holloway v. Pure Oil Co., 17 La.App. 584, 135 So. 381, and as set forth by the Supreme Court in Gaiennie v. Cooperative Produce Co., et al., 196 La. 417, 199 So. 377.

' In the Holloway case, supra, the plaintiff was allowed recovery when he ran into a load of long iron pipe. The manner of loading the truck and the relative position of the vehicles were strikingly similar to the case before us. At the time of the Holloway accident there was a mist or drizzle of rain. However, in the Gaiennie case, supra, the Supreme Court absolved a plaintiff who, after meeting other cars with lights, collided in fair night weather with the real-body of a truck which “was some 3 or 4 feet above the ground and extended back some four feet over the rear wheels, so that when plaintiff dimmed his lights the tilted beam of his headlights projected under the truck making it that much more difficult for him to see it.”

In cases of unusual obstructions, the facts and circumstances of each case must be considered. In the one before us we conclude that the driver of the car had sufficient reason, under the existing facts and circumstances, to absolve him from negligence in not sooner seeing the steel beams which obstructed his path.

There is considerable conflict in testimony as to how well the truck load was lighted, and there was introduced in evidence a small side or clearance light designed to show orange to the front and rear and amber' to the side. The small light is contained within a galvanized iron shield. The portion exposed to the side (which would have been the only light in front'of plaintiffs son on his side of the road) has an opening of approximately three quarters of an inch in diameter. The evidence does not show how securely this little light assembly was fastened on the steel beams, and had it been loosely fa*stened and turned to any appreciable degree either up or down, its sheath coiild have easily shielded it in whole or in part from the driver’s frontal view. Bearing in mind that the burden of establishing contributory negligence is on the defendant alleging it, and that the rear lights on the trailer were not visible at all to plaintiff and that all lights on the truck and tractor except the small one under discussion were already across the center line and on the south side of the road, we find that the presence of this one small shielded light along the thirty foot expanse of steel beams was not a sufficient lighting to warn plaintiff’s son under the circumstances. This view is strengthened by the fact that it is not shown in the record that the light was fastened on the steel beams in such a way as to insure that its protecting sheath did not also operate to shield its rather puny warning rays from the eyes of the approaching driver.

Defendants have made the point that “when a car runs into a truck with such force as to be demolished, it is self evident that its rate of speed was so great the car could not be stopped within the distance illuminated by its headlights or else he was not keeping a proper lookout and, therefore, its driver was guilty of contributory negligence of a character to bar recovery. Hogue v. Akin Truck Line et al., La.App., 16 So.2d 366.”

The petition states that plaintiff’s car was damaged to such an extent that “his insurer paid him full value therefor except for the sum of Fifty Dollars ($50.00), which amount was deductible under petitioner’s insurance policy.”

The burden is upon a defendant alleging contributory negligence to establish same. The record shows that the rear portion of the coupling pole was rammed through the grille and cowl of plaintiff’s car and that after the trailer wheels were struck, the load of steel beams fell across plaintiff’s car. Had the entire coupling pole been on the truck and the load been a normal one, this would rather conclusively show an excessive speed. However, the evidence does not disclose just how firmly the coupling pole was chained to the steel beams nor how well the beams were secured to the rear bolster. Under these circumstances, we do not find it established that the force with which the car struck the truck was the principal cause of it being demolished. It being open for question that-the manner in which the beams were loaded was a factor in the extensive damage to the car.

In the Hogue v. Akin Truck Line, La. App.; 16 So.2d 366, 368, above cited, the Court stated:

“The facts that his car was demolished, and he was seriously, injured indicate clearly that the impact was heavy.”

It is logical to assume that when a car is badly demolished on impact with a stationary object that its speed was high. However, the case before us differs from the Hogue case above in that the driver was not seriously injured nor was the defendant’s truck stationary. The forward momentum of the 25,000 pound load even at moderate speed was a definite factor in the extent of damage and the contribution of the momentum of defendant’s massive vehicle to the extent of damage done plaintiff’s car is further increased by the fact that the heavy steel beams fell across the car.

We have examined the testimony as to injuries to plaintiff’s son and his resulting scars and find that the award of the District Court was reasonable and does substantial justice.

The judgment is affirmed, with costs.


text:
    FOSTER v. NELSON.
    No. 7145.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Rehearing Denied May 31, 1948.

      G. P. Bullís, of Ferriday, for appellant.
    Clarke & Preis, of St. Joseph, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff, while in the employ of the defendant as bartender, or manager of a saloon in Concordia Parish, paid with his own check an invoice covering the price of whiskey and beer sold and delivered to the defendant by a merchant in Monroe, Louisiana, amounting to $1,282.12. The saloon bears the euphonious name of “White Ripple”. This suit was instituted to recover judgment for the amount of the check, after plaintiff ceased to work for defendant, tie being a non-resident, jurisdiction was effected by levy of a writ of attachment.

Answering, the defendant denied liability for the amount for which he was sued, and reconvening, prayed that plaintiff be ordered to render an accounting for all property, money, etc., of the defendant that came into his possession for the period of his employment. To support the demand for an accounting, defendant alleged at length facts deemed by him sufficient to justify his position with respect thereto. Inter alia, he avers that in July, 1945, he employed the plaintiff to manage and operate his saloon and night club, then being conducted on and in property of defendant ; that under the contract of employment plaintiff agreed to manage said business m a careful and efficient manner, collect revenues thereof, pay its expenses, remit to defendant the balance of income above expenses, and to render an accounting of his stewardship; that plaintiff acted in the capacity aforesaid until some time in January, 1946, at which time he left defendant’s employ, but did not then nor has he since rendered an accounting as he was obligated to do; that said business, under plaintiff’s management, earned substantial profits.

In conjunction with his answer and re-conventional demand, defendant procured the issuance of a subpoena duces tecum commanding plaintiff to produce in court on a fixed date and hour, all books, records and accounts of or pertaining to the business and operation of the said saloon and night club, covering the period from July 1, 1945, to January 15, 1946, including invoices, statements of income and expenses, bank statements, etc. He affirmatively alleged that said records, papers, etc., will disclose that plaintiff is indebted unto defendant in a sum in excess of $2,000.00.

In the application for the writ, defendant alleged that he intended to also establish from the contents of said records, papers, etc., that plaintiff deposited to his own personal account in a named bank all the receipts of the business, and paid therefrom, with his own checks, its expenses; that in this manner plaintiff has been fully reimbursed the amount of the check on which he sued; that the total of receipts from the business deposited in said manner greatly exceeded the amount of said check. These allegations are not supported by the documents produced nor by any other evidence in the case.

Answering the reconventional demand, plaintiff generally denied the material allegations thereof and affirmatively averred that he was employed by defendant only as a sales clerk and was not invested with managerial or supervisory powers or duties. He denied that he was obligated to or was ever called upon by defendant to render the accounting by him sought; that no books or records reflecting the financial condition of the business were kept by him or by anyone else, so far as his knowledge goes, nor was he expected or required to do so; that he is an “aged and uneducated man” and wholly incapable of keeping books or records of any sort or character; and that defendant all the while well knew this.

Defendant’s demand for an accounting was rejected. There was judgment for plaintiff as by him prayed, and defendant appealed suspensively. The trial judge gave written reasons for his action.

There is sharp conflict, in material respects, between the testimony of the litigants as regards nearly every phase of the case and especially as regards plaintiff’s duties and powers under the terms of his employment. There are, however, many material facts that the testimony places beyond serious dispute.

When defendant acquired the saloon and night club property in July, 1945, he found plaintiff in charge of the saloon under employment of its former owner. He simply engaged plaintiff to continue running the saloon. He was not employed to and did not conduct the night club wherein there were several slot machines, operated in violation of the law, and dice games banked by defendant and another person jointly on a fifty-fifty basis. In addition, plaintiff was not charged with the duty of operating the saloon during the night time. Other employees took over as he retired from the place in the early hours of each evening. Naturally, the principal income of the saloon was between suns.

Plaintiff, while on duty, dispensed liquor over the counter, sold other merchandise, such as cigars, cigarettes, etc., placed orders for small amounts of needed merchandise and often from the receipts of the business, paid its bills, a record of which was roughly kept. Other employees likewise paid bills from cash on hand. Defendant, himself, invariably placed orders for larger quantities of merchandise and often paid for same with his own personal checks. He gave the order for the merchandise, the price of which was paid by the check, the basis of this suit. Besides plaintiff, other employees, as well as the defendant, knew the safe’s combination and had free access thereto.

Plaintiff testified, and there is no substantial contradiction thereof, that when he checked out each evening he counted the cash and placed same in the safe, after it was put in the building, and prior thereto he counted and left the cash in the cash register. He had no further control over the cash until the following morning when he resumed his duties, if same was still there. He further testified that almost daily defendant would come to the saloon, open the safe and take therefrom the cash or part thereof, but defendant specifically denies this. It was defendant’s safe and his business and there appears no reason whatever for him not having done as plaintiff says he did.

In view of the foregoing resume of facts, it is obvious an accounting by the plaintiff, as demanded, is impossible. And this is true, whether plaintiff acted as manager of the saloon business, as contended by defendant, or simply as clerk and bar tender, as by 'him asserted. The court’s ruling on this phase of the case was clearly correct.

It appears that the order for liquors involved herein, was an unusually large one. Evidently, this was because of the anticipation of a heavy Christmas season trade. The merchandise was delivered at defendant’s saloon on or about November 27th, and was paid for by plaintiff’s check on December 4th. It was the custom of the Monroe merchant who sold the liquor to have its salesman call at the saloon one week after the delivery of goods and make collection therefor. As a rule, a new order was then placed with the salesman. It so happened that the salesman in this instance called at the saloon about seven P.M. when plaintiff was preparing to go to his home for the night. He informed the salesman that he did not have sufficient cash to pay the bill and would have to give him his personal check for the larger part of it, as the defendant was not present. The salesman suggested that a check for the whole amount be drawn as he much preferred to have a check than the amount in cash. He did not wish to carry the money on his person.

Plaintiff testified that on the day following issuance of the check he informed defendant what he had done and that defendant approved his action and stated that he would soon reimburse to plaintiff the amount of the check. Plaintiff also testified that on different occasions thereafter he mentioned the matter to defendant and requested reimbursement but that such was never done. Defendant denies positively that plaintiff said anything to him about paying for the liquors until several weeks after he had ceased to work for him.

Defendant, of course, knew that the liquors had been delivered but contends that as plaintiff had full charge of the business with the right to pay for merchandise delivered to it, he, naturally, took cash from receipts of the business sufficient to reimburse himself in whole or part the amount of the check. One would think that he would have done this.

Plaintiff admits that the liquors were disposed of in due course of business while he worked at the saloon and, this being true, evidently enough cash was realized from their sale to extinguish said indebtedness. A rebuttal presumption arises, in view of the established facts and circumstances, that plaintiff would not have, during the nearly two months he was in defendant’s employ after paying for the liquors, overlooked, reimbursing himself in whole or part the outlay he had made on behalf of his employer. C.J. 48, p. 689.

Appellant alternatively argues that, at the most, defendant should not be cast for more than $600.00. This position is based upon the testimony of several witnesses, most of whom appear to be disinterested, to the effect that in conversation with the plaintiff prior to the time this suit was filed, he stated positively that defendant owed him only this amount. There can be little doubt that plaintiff made these statements and at a time when no good reason existed for him speaking other than the truth. A thorough consideration of all the facts and circumstances of this rather unique suit impels us to the conclusion that plaintiff should not recover beyond the $600.00 he many times declared as being the amount defendant owed him. This conclusion, of course, implies that the debt due plaintiff was reduced to this amount before he left defendant’s employ.

Appellant also contends that plaintiff should be charged with a dishonored check for $125.00 that he cashed from business funds. We do not think this position well taken. Plaintiff was not instructed not to cash checks of patrons. In due course of business he would do so frequently and evidently to the defendant’s knowledge. It is well known that in this day and time business of every character is largely carried on by means of checks on banks; and the retailer who refuses to accept or cash checks of his customers is destined to lose valuable trade. And if the employer desires that this practice be not followed in his business, he should positively impart to his employees his position in this respect or else they cannot be held responsible for bad checks taken in the due and regular course of business.

For the reasons herein assigned, the judgment appealed from is amended by reducing the amount thereof to $600, and as thus amended, it is affirmed. Costs of appeal are assessed against the plaintiff and all other costs are assessed against the defendant.