author: GULOTTA, Judge.

text:
    ILLINOIS CENTRAL GULF RAILROAD COMPANY v. INTERNATIONAL HARVESTER COMPANY v. David FINEGOLD, Alvin B. Werner, and 1601 Poydras Corporation.
    No. 12606.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 1981.
    Writ Denied Dec. 4, 1981.

      Barham & Churchill, Mack E. Barham, Ralph S. Hubbard, III, New Orleans, for appellant Illinois Cent. Gulf R. Co.
    Deutsch, Kerrigan & Stiles, Malcolm W. Monroe, New Orleans, for defendant-appellant International Harvester Co.
    Nelson, Nelson & Koch, Ltd., Irving H. Koch, New Orleans, for third party defendant and relator David Finegold.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

The dispute in this case centers around the quantum of damages that Illinois Central Gulf Railroad (ICG), lessor, is entitled to receive from International Harvester (Harvester), lessee, because of Harvester’s breach of a lease. In an earlier eviction suit, the Louisiana Supreme Court dissolved the lease after concluding that Harvester had violated the lease terms.

In response to ICG’s petition for damages for the period of time Harvester occupied the property after ICG’s demand to vacate because of the lease violation, Harvester third partied the sub-lessee, 1601 Poydras Corporation, David Finegold and Alvin Werner seeking indemnification from them in accordance with the terms of the sublease. In that lease agreement, third party defendants had agreed to hold harmless and indemnify Harvester for any damages resulting from the sub-lessee’s failure to surrender the property timely.

A jury verdict resulted in a judgment in favor of ICG and against Harvester in the sum of $73,700.00, with interest from date of judicial demand, and costs, and a further judgment in favor of Harvester and against third party defendants, Poydras Corporation, Finegold and Werner, in solido for the same amount, $73,700.00 with interests and costs. Harvester suspensively appealed. ICG devolutively appealed. Finegold and Werner’s appeals were dismissed.

On appeal, Harvester claims the jury verdict is excessive and seeks a reduction to $19,721.00. On the other hand, ICG complains of the inadequacy of the award and seeks an increase to the sum of $340,000.00. We amend the judgment by increasing it from $73,700.00 to $100,000.00.

BACKGROUND

In 1960, ICG leased the subject property (approximately 53,000 square feet of land fronting on Poydras Street, across from the Superdome in the City of New Orleans) to Harvester until 1986 at an annual rental of $9,466.08. The property was to be used as a truck sales and service outlet. In 1975, Harvester subleased the property to 1601 Poydras Corporation for use as a parking lot without ICG’s permission which was required under the terms of the lease. Because of this breach, ICG demanded Harvester vacate the premises by December 1, 1977. After the March, 1979 Supreme Court decree dissolving the lease, the sub-lessee vacated the premises and Harvester subsequently demolished improvements that had been placed on the premises in 1972. ICG regained possession of the property clear of the improvements on January 1, 1980. The property was then leased to Downtown Parking Service, Inc. by ICG for operation as a parking lot. On September 30, 1980, ICG sold the site to a third party for $3,076,073.70.

HARVESTER’S APPEAL

In support of its argument that ICG is not entitled to any damages (other than the stipulated rent under the lease for the twenty-five-month period from December 1, 1977 to January 1, 1980), Harvester claims the railroad has sustained no loss from Harvester’s sub-lease of the property to the third party defendants. Relying on LSA-C.C. Art. 2711, which provides:

“If the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease.
The lessee, in that case, shall be bound to pay the rent, until the thing is again leased out; and the lessee is also liable for all the losses which the owner may have sustained through his misconduct.”

Harvester points out that during the occupancy period from December 1, 1977 (the date of demand to vacate) to January 1, 1980 (the date the property was returned to ICG) the leased property increased in value because of inflation and escalation of realty values during that interim period. According to Harvester, the delay in returning the property to ICG enured to the lessor’s benefit since it was able to sell the property in September, 1980 for an amount in excess of $3,000,000.00, a price higher than it would have received had it sold the property in 1977 or 1978.

Alternatively, Harvester contends that ICG is entitled to no damages since the lease remained in effect until the judgment of eviction became final in April, 1979. Harvester thus argues that ICG is only entitled to receive rental payments from Harvester in the amount stipulated in the lease until finality of that judgment and for a reasonable period thereafter when the improvements were being removed from the leased premises. Harvester contends ICG is entitled only to the contractual rental for the twenty-five-month period or a sum of $19,721.00. In this connection, Harvester argues further that any legal interest on a judgment in favor of ICG should commence, not from date of judicial demand (December 20, 1977), but only from the date the Supreme Court’s judgment in the eviction suit became final (April 9, 1979). Alternatively, Harvester contends ICG is only entitled to legal interest on each monthly installment of rental from the date each installment became due during the twenty-five-month period Harvester occupied the property after ICG’s demand to vacate.

We find no merit to these contentions. Assuming that LSA-C.C. Art. 2711 governs entitlement to damages in this case, we are not persuaded by Harvester’s contention that ICG has failed to prove a loss, as contemplated under the codal article, for the twenty-five-month period subsequent to December 1, 1977. The earlier Supreme Court decree in the litigation between ICG and Harvester, terminated the lease because of Harvester’s contravention of the lease provisions. Between demand for occupancy on December 1, 1977 and the return of the property to ICG on January 1, 1980, plaintiff was entitled to receive a fair market rental for the property: ICG was deprived of the rental proceeds by the wrongful occupancy of the property subsequent to December 1, 1977. It is of no moment that an inflated economy during the interim period resulted in increased value of the property. ICG has established loss and is entitled to recover. We find no error therefore, in the jury’s determination of ICG’s entitlement to damages.

We also reject Harvester’s contention that ICG is only entitled to the contractual rental for the period of Harvester’s occupancy subsequent to December 1, 1977. As authority for its position, Harvester cites Reed v. Classified Parking System, 324 So.2d 484 (La.App. 2nd Cir. 1976) where the court held that a lease remains in effect, with a lessee entitled to occupancy and obliged to pay rent, until a court judicially dissolves the lease. Although we do not quarrel with Reed, the mere fact that a lessee is entitled to occupancy and obliged to pay rent until a final judgment of eviction does not mean that the injured party cannot receive damages relating back to the time of breach. As we interpret the cited language in Reed, a lessor cannot resort to self-help to evict a tenant because of his breach; and, conversely, a tenant is not relieved of paying rent simply because the lessor breaches the lease in some manner. Indeed, Reed recognizes that because of a lessor’s breach of the contract, a lessee is entitled not only to dissolution of the lease, but to such damages as may have accrued as a result or consequence of the breach. In our case, merely because the lease was not dissolved until April, 1979, when the Supreme Court’s opinion in the eviction suit became final, does not mean ICG is limited to damages arising after the finality of that judgment. It is entitled to such damages as may have accrued as a result or consequence of Harvester’s breach. Those damages are measurable from December 1, 1977, despite the pendency of the eviction suit until April, 1979. See Wall v. Dudley, 162 La. 952, 111 So. 340 (1927).

Accordingly, we conclude, as apparently the jury did, that Harvester, because of its continued occupancy, is liable in damages measured by the fair rental market value of the premises from the time of ICG’s demand to vacate until the time the property was returned to ICG’s possession. Further, although the trial judge awarded legal interest from date of judicial demand rather than from the date the Supreme Court judgment became final or when each rental installment became due, we do not find sufficient reason to disturb the amount of interest awarded.

ICG’S APPEAL

The thrust of ICG’s appeal is twofold. Supporting its claim that the $73,700.00 award is inadequate, ICG points out that the trial judge erred in permitting third party defendants to participate in the jury trial of the main dispute between ICG and Harvester, after the trial court had granted a summary judgment in favor of Harvester and against the third party defendants, based on the indemnification agreement. According to ICG, although the trial judge refused to permit the jury to become aware of the indemnity agreement, prejudice resulted against ICG because the third party defendants were permitted to cross examine witnesses and to argue before the jury. The railroad reasons that an inclination resulted on the part of the jury to reduce an award in its favor, realizing that the ultimate responsibility for payment of the damage award falls (under indemnification) upon the individual third party defendants and not the corporate entity, International Harvester. ICG further contends the trial judge erred in failing to instruct the jury properly regarding the highest and best rental use in assessing damages and in limiting the period of time for the computation of damages over a twenty-five-month period (from 12-1-77 until 1-1-80) instead of thirty-four months (from 12-1 — 77 through 9-30-80). In support of its position, ICG points out that the only testimony on the highest and best use of the property was elicited from its expert realtor-appraisers who stated that the leased property was most suitable for development as a highrise office building with a fair rental return between 12-1-77 and 9-30 — 80 of between $10,000.00 and $13,300.00 per month.

Because these contentions are so closely interrelated, we consider them together. We find no merit to ICG’s claim that the trial judge erred in his instructions to the jury regarding the proper measure of damages being the “fair market rent it probably could have received had it been able to lease the property to another party.” As pointed out by the court in Jackson Brewing Co. v. Wagner, 123 La. 798, 49 So. 529 (1909), a lessee’s liability in damages for continued occupancy after the termination of his lease against the protest of the lessor is to be measured by the rental market value of the property. See also, Wall v. Dudley, 162 La. 952, 111 So. 340 (1927). Also see Meyer v. Succession of McClellan, 30 So.2d 788 (La.App.1947), holding that a lessor is entitled to recover actual damages for violation of the lease by the lessee.

ICG’s arguments concerning the “highest and best” rental use as the measure of damages must be viewed in light of the relevant rental market. As stated in State, Department of Highways v. LeBlanc, 319 So.2d 817 (La.App. 1st Cir. 1975), “economic rent” in an expropriation case may not be established simply by showing property valuation and determining mathematically the amount of rent an owner must receive in order to reap an acceptable return on his investment. Rather, compara-bles may be used to show the rental the property could actually produce if put on the lease market. Although the LeBlanc case dealt with a lessee’s claim for compensation in an expropriation case, the principle stated therein is applicable in assessing damages in our case for loss of rental value. We therefore find no error in the trial judge’s rejection of ICG’s proposed instructions.

We reject also ICG’s claim that damages should be assessed for a thirty-four month period. Demand was made to vacate by December 1, 1977. The property was returned to the possession of ICG in January, 1980. It was then leased to Downtown Parking Inc. for use as a parking lot until the property was sold in September, 1980. Accordingly, damages were properly determined for the interim period of unlawful occupancy from date to vacate to date of return of possession to ICG.

We likewise reject ICG’s claim that the jury erred when it failed to accept the fair market value rental return on the property as testified to by its realtor-appraiser experts, Omer F. Kuebel and Robert W. Merrick. ICG points out that even Harvester’s expert stated that a fair rental return during the twenty-five-month period amounted to $100,000.00. ICG therefore argues the jury erred when it returned a verdict in the sum of $73,700.00 when none of the experts testified that this amount was a fair measure of damages.

In addition to the two experts, Kuebel and Merrick, who testified on behalf of ICG, and Max J. Derbes, Jr., who testified on behalf of Harvester, the jury had the benefit of the testimony of Rixon Irvine, ICG’s Vice-President, George J. Newton, III, President of Downtown Parking, and David Finegold.

Irvine testified that various parking lot companies had contacted him about possible leases of the property before a lease was negotiated with Downtown Parking in January, 1980. According to Irvine, although it was ICG’s intent to sell the property as soon as possession was obtained, as circumstances developed it was leased as a parking lot to produce income. Irvine stated that had a tenant been found who was interested in leasing the property on a long term basis for an apartment building or office complex, ICG would have considered it but could not find anybody who was so interested. As early as 1975, during the pendency of Harvester’s lease, Irvine had entertained inquiries concerning sale of the property subject to Harvester’s lease, but it was not until February, 1980 that ICG entered negotiations with a buyer that resulted in the signing of a contract for sale of the property in June, 1980. Irvine acknowledged that there was no plan for construction of any highrise building immediately adjacent to the subject property until the fall or winter of 1979, when construction of the Exxon Building next to the subject property became known.

George J. Newton, III contacted ICG in late 1979 concerning leasing of the subject property as a parking lot. Under the lease agreement with ICG, Downtown agreed to pay a fixed monthly rental of $5,833.00 per month and to pay property taxes and 76.5% of the revenue. The lease had a cancellation clause whereby ICG could terminate the lease in the event of a sale to a third party. Downtown began parking operations on January 13, 1980 and made total payments under the lease of $43,212.00 to ICG between January and the end of September, 1980 when the property was sold.

Omer Kuebel testified that the highest and best use of the site producing the maximum benefits of ownership and the highest net income over reasonable period of time was as a highrise office building. Kuebel appraised the market value of the property in the sum of $1,500,000.00 in December, 1977 based on the market data approach of studying comparable sales. He testified that a reasonable net return on the property as part of a long-term lease was 8% per annum or a monthly return of $10,000.00. Kuebel estimated that ICG would have been able to find a long-term tenant within thirty days after December 1, 1977 and would have received a $10,000.00 per month rental within six months. On cross examination, Kuebel acknowledged that much vacant land in the central business district was being used for parking purposes. According to Kuebel, interim rental of the property as a parking lot would bring the property owner about 60% of the parking lot operator’s projected gross income of $81,000.00 per year.

Robert W. Merrick also testified that the highest and best use of the subject property was as a highrise office building. He appraised the property as of December 1,1977 at $1,700,000.00 and estimated a fair rental of the property at its highest and best use to be 8% of this value or $11,333.00 per month, totaling $283,325.00 as a fair rental for the 25-month period. According to Merrick, use of the property as a parking lot was only an “interim” use until an office building development was constructed on the site.

Max J. Derbes, Jr. testified, on the other hand, that the site was not suitable for rental as an office building in 1977-1979. Although he agreed with Kuebel’s appraisal of $1,500,000.00 as the value of the property in December, 1977 and felt its highest and best use would be as a highrise office, Derbes was of the opinion that the highest and best use for the 25-month period was an interim use as a parking lot. According to Derbes, it was not until the Exxon Building was planned on the site next to the subject property that the area became “ripe” for office building development in late 1979. He estimated that ICG could have received $50,000.00 per year for lease of the subject property as a parking lot from December 1, 1977. Total damage to the railroad, according to Derbes, was therefore $100,000.00 for the 25-month period.

The final witness was David Finegold, president of 1601 Poydras Corporation, the third party defendant who had operated the parking lot under a sublease with Harvester before vacating the premises in April, 1979. The minimum monthly rental agreed upon was $2,661.88. Finegold related that the site had 100 parking spaces when he operated it. He stated that it was difficult to realize a profit on the site as a parking lot and that on two occasions International Harvester reduced his rental below the stated minimum monthly sum.

Having reviewed the evidence, we are at a loss to reconcile the jury’s verdict of $73,-700.00 with the testimony concerning rental value of the property. The amount of the verdict does not correspond to the rental values of the property as set forth in the testimony. Nevertheless, it is obvious that the jury rejected the testimony of plaintiff’s experts and relied instead on the determination of the fair rental value of the property based on its use as a parking lot. Considering the testimony of defendant’s expert, Derbes, that rental of the site was. best suitable for use as a parking lot during the 25-month period, we cannot say that rejection of the higher values based on the use of the property as a highrise office building as claimed by ICG’s experts was erroneous. This is a credibility finding and we do not disturb that determination.

On the other hand, it appears that the jury was influenced by Finegold’s testimony to temper its verdict and award a lesser amount. Harvester’s expert, Derbes, clearly testified that fair rental value of the property for the 25-month period under lease as a parking lot was $100,000.00. A reasonable conclusion under the circumstances is that the jury was influenced by Finegold’s testimony concerning financial difficulty in operating the lot together with realization that Finegold would ultimately bear the responsibility for satisfaction of the judgment.

In this connection, we do find merit to ICG’s claim that the trial judge erred in permitting the third party defendants to participate in the trial of the dispute between ICG and Harvester. Once having determined that Harvester was entitled to a summary judgment against the third party defendants based on the indemnification, it was an abuse of the trial court’s discretion to permit participation by these third party defendants in the trial of the main dispute between ICG and Harvester. Because we conclude prejudicial error as a matter of law resulted in an award not responsive to the testimony and evaluations of the experts but at the same time find no basis for disturbing the more probable than not credibility determination of the jury, we increase the award from $73,700.00 to $100,-000.00.

Accordingly, the judgment in favor of Illinois Central Gulf Railroad and against International Harvester Company in the sum of $73,700.00 is amended and increased to $100,000.00. The judgment in favor of International Harvester Company and against third party defendants David Fine-gold, Alvin B. Werner and 1601 Poydras Corporation, in solido, is amended and increased from $73,700.00 to $100,000.00. In all other respects the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Illinois Cent. R. Co. v. International Harvester, 368 So.2d 1009 (La.1979).

      . This matter is before us on an expedited appeal. While the suspensive appeal was pending, Harvester sought to execute the judgment in its favor against the third party defendant Finegold. Finegold then applied to this court for supervisory writs seeking to stay the execution of the judgment by Harvester on the ground that execution was premature in that ICG’s judgment against Harvester was not final and could be reversed on appeal. Because of the obvious problems that might result if execution had been permitted, we granted an expedited appeal and stayed International Harvester’s execution against Finegold pending disposition of the appeal.

      . The trial judge instructed the jury as follows:
      “Illinois Central Gulf Railroad was entitled to possession of the premises in question on December I, 1977. It did not actually obtain possession until January 1, 1980, some 25 months later. The railroad is entitled to any damages it may have sustained as a result of this twenty-five month delay in regaining possession. In this case the damages would be the fair market rent it probably could have received had it been able to lease the property to another party. It is for you to determine from all the evidence the total fair market rent for this property during the twenty-five months in question.” ICG’s requested charge No. 16A, which was rejected by the trial court, reads as follows: “I instruct you that the damages due to Illinois Central Gulf Railroad Company from International Harvester Company are from December 1, 1977 until Illinois Central Gulf Railroad Company ceased to suffer damages because of the wrongful occupation of the premises.
      Illinois Central Gulf Railroad Company contends that from January 1, 1980 through September 30, 1980 it took possession of the property and tried to mitigate its damages.
      Louisiana law requires a party to mitigate or minimize its damages. To the extent the party is required to make its best efforts to mitigate you may examine that attempt to see if sufficient effort was expended. You are to decide when Illinois Central Gulf Railroad Company was restored to possession of the property. If you decide it was restored to possession January 1, 1980 because they had control of the property after that date but that it was still suffering damages you must require them to exercise that control so as to minimize those damages.
      You must deduct from any damages suffered after physical return of the property any sums Illinois Central Gulf Railroad Company receives through mitigating its damages. You are to determine the period of time for which damages should be paid after December 1, 1977 and the amount of these damages.”
      ICG’s requested charge No. 20 (also rejected by the trial judge) reads as follows:
      “Illinois Central Gulf Railroad Company is entitled to receive damages based on income it could have received from the property based on the highest and best use to which the property could be put at its market value. Highest and best use is defined as the most favorable use to which the property is adaptable. It is the use which provides the greatest benefits of ownership; that legal use which given a reasonable period of time is anticipated to produce the greatest net return to the land. The market value of the property is the price which would be agreed upon at a voluntary sale between an owner willing to sell and the purchaser willing to buy. The preferred yardstick in the determination of the value of property is evidence of sale of similar or comparable properties in the vicinity.”

      . 60% of $81,000.00 is $48,600.00 per year, or $4,500.00 per month rental income under a lease as a parking lot. For the 25-month period from December 1, 1977 to January 1, 1980, the owner would therefore receive $112,500.00 as rental income.

      . Derbes testified that it would take about 1 month to surface the site for use as a parking lot. Hence, the rental for the 25-month period would be $100,000.00 based on a $50,000.00 annual rental.

      . When Finegold operated the parking lot under his agreement with Harvester, the buildings were still on the property. After the buildings were demolished and the property was returned to ICG, the new parking tenant, Downtown, was able to park a greater number of cars.

      .A reasonable rental for the 25-month period according to plaintiff’s experts ranged from $250,000.00 to $283,325.00. Rental of the site for 25 months at $5,833.00 per month (rental paid by Downtown Parking under its lease with ICG) would amount to $135,725.00. Rental for 25 months at $2,661.88 per month (amount paid by Finegold under his sublease with Harvester) would amount to $66,547.00. None of these figures corresponds to the jury verdict of $73,700.00.

      . See LSA-C.C.P. Art. 1038; Offshore Crewboats, Inc. v. Harredge, 306 So.2d 774 (La.App. 4th Cir. 1975), writ denied, 310 So.2d 641 (La.1975); Whitener v. Clark, 356 So.2d 1094 (La.App. 2d Cir. 1978), writ denied 358 So.2d 638, 641 (La.1978).


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Virginia SEREAN et al. v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS, INC.
    No. 12210.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 1981.
    Rehearing Denied Nov. 20, 1981.

      Torres & Bischof, George N. Bischof, Jr., Chalmette, for plaintiffs-appellees.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, George R. Blue, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

A self-service supermarket appeals from a $1,092 judgment for this 58-year-old plaintiff’s damages from a slip and fall in defendant’s produce department. The question is whether defendant’s frequent inspections, including one in the area 12 to 15 minutes before plaintiff’s accident, discharged defendant’s duties towards plaintiff and therefore require reversal. We answer no and therefore affirm.

There is, the trial judge noted, no significant conflict in the testimony; “just about everybody did their best to tell the truth.” The facts are that plaintiff had left her self-service cart to avoid the congestion of customer and employee carts she saw by the produce area; she had left her purse with her mother. She was returning from buying oranges and peppers, not looking for other produce, when she slipped upon a four- or five-inch piece of green onion as she passed through a space about three feet wide between a produce bin and an employee who was restocking the produce section from a pushcart of produce.

We first dispose of defendant’s alternative argument that plaintiff was con-tributorily negligent because her failure to see the onion is not excusable by the typical theory of deliberate distraction by the storeowner through displays of the merchandise the shopper seeks: this shopper was not seeking merchandise; she had completed her produce purchases. We disagree. Common experience is that, exactly as the storekeeper intends when it arranges its displays (and notwithstanding plaintiff’s testimony that she was distracted by “Nothing that I can recall”), shoppers are attracted by displays of merchandise, even merchandise that the shopper had not previously intended to buy. The storekeeper cannot seek for itself the benefit of impulse buying from those displays while arguing that the shopper has a duty not to look at those displays.

Defendant’s primary argument, however, is that it was not negligent: that its frequent inspections absolve it of any liability for plaintiff’s fall. But we conclude, on the facts present, it would be an entirely reasonable inference by the trial court, and therefore an inference not subject to displacement on appeal by other equally reasonable inferences, Canter v. Koehring Co., La.1973, 283 So.2d 716, that more probably than not the green onion on the floor came from defendant’s own employee who was restocking the produce counter.

It must be observed that this is not a case of some unusual substance brought into the store by a customer. There is no reason to suppose that this green onion was brought in by anyone but the storekeeper. It is fairly the storekeeper’s burden to explain why its onion, of which it had control (see C.C. 2317), is on the floor instead of in its proper place. The storekeeper’s position entails either a supposition that another shopper dropped it or, more exactly, a re-shifting of the burden to the injured shopper to show either that the storekeeper’s employees caused the foreign substance to be on the floor or that it was on the floor so long that the employees should have removed it. But that is no longer the injured shopper’s burden: on proof by plaintiff of the presence of the store’s merchandise on the floor near its proper place, of her not seeing it and therefore stepping on it and of its causing her to slip, fall and be injured, “the duty of going forward with the evidence to exculpate the store employees from negligence shifts to the store owner.” Gonzales v. Winn-Dixie La. Inc., 326 So.2d 486 (La.1976).

Defendant did not carry that burden.

Affirmed.


author: HUGHES, Judge.

text:
    Joseph B. BROWN v. Douglas WHITE, et al.
    No. 11652.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 1981.
    Rehearing Denied Nov. 20, 1981.

      Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, for Joseph B. Brown, plaintiff-appellant.
    A. R. Christovich, Jr., Christovich & Kearney, New Orleans, for Merritt Singer, A1 Odell, and Michael Tolle, defendants-ap-pellees.
    Clarence A. Frost, Faris, Ellis, Cutrone, Gilmore & Lautenschlaeger, New Orleans, for Bill Thomson, Bernard Waller, Jr., and Kent Jones, defendants-appellees.
    Gerard M. Dillon, Michael R. Daigle, Dillon & Cambre, New Orleans, for defendants-appellees National Drying Machine and Pennsylvania Manufacturers’ Association Insurance Co.
    Roland J. St. Martin, LaPlace, for Jack Evans, defendant-appellee.
    M. Truman Woodward, Jr., James K. Irvin, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for Douglas White, Manning Riser, James Lillie, William Dove and William Frost, defendants-appellees.
    Before REDMANN, SCHOTT and HUGHES, JJ.
   HUGHES, Judge.

Joseph B. Brown brought this suit to recover damages for personal injuries sustained while working for the E. I. duPont de Nemours Company. Named as defendants were National Drying Machinery, Inc. and various supervisory personnel employed by duPont. Before trial, duPont intervened seeking recovery of benefits which it paid to plaintiff under the Louisiana Workmen’s Compensation Act. After trial, a jury returned a verdict which concluded that only one duPont supervisor, Jack Evans, and National were negligent. Evans’ negligence was deemed to be a cause of the accident, but National’s negligence was deemed not to be a cause of the accident. The jury also concluded that Joseph Brown was contribu-torily negligent and that he had assumed the risk of his own injury. A judgment was then entered dismissing the claims of plaintiff and the intervention by duPont, and costs were cast against Brown, Evans, and National. Plaintiff appealed from the adverse judgment and Evans and National answered the appeal.

Plaintiff’s allegations of error are as follows. (1) The trial court erred in refusing to charge the jury that contributory negligence is not a bar to recovery in a products liability case. (2) The trial court erred in refusing to charge the jury that an executive officer vested with responsibility for safety is required to exercise a higher degree of care than his subordinate employees. (3) The trial court erred in failing to excuse a juror who became “contaminated” by learning something he should not have heard. (4) The trial court erred in instructing the jury that assumption of risk was a bar to recovery in both the products liability and executive officer actions. (5) The jury’s conclusion that the executive officers, with the exception of Jack Evans, were not guilty of negligence is manifestly erroneous. (6) The jury’s conclusions that the plaintiff was guilty of contributory negligence is manifestly erroneous. (7) The jury’s findings that the negligence of the manufacturer and the supervisory employees of duPont were not proximate causes of the accident are manifestly erroneous. (8) The jury’s conclusion that plaintiff assumed the risk connected with the job to which he was assigned is manifestly erroneous. Plaintiff contends that he is owed damages on the amount of $591,129.00 from all of the defendants jointly, recognizing the work-mens’ compensation lien of duPont Inc. in the amount of $33,263.66.

In answering the appeal defendants contend that there was no error in the jury charge concerning contributory negligence of plaintiff nor in the refusal to charge the jury that the defendants were obliged to observe a higher degree of care than the plaintiff was required to observe for his own safety. Further, defendants contend that the Judge’s decision not to remove the disputed juror was proper and within the limits of the discretion of the Court. Evans contends it was error for the jury to find that he was negligent and that his neglect was a proximate cause of the accident.

National Drying Machinery, Inc. argues that the jury erred in finding it negligent because it was not the designer of the blower which injured the plaintiff, but only its manufacturer and because the only defects existing were design defects. National contends that this is not a strict liability situation since the machine was not being used normally, because using a pipe wrench to stop the machine was abnormal use. Finally, National contends that it could not be negligent for failing to foresee that the equipment would be used in such an unsafe manner.

REFUSAL TO EXCUSE A JUROR

Out of the presence of the other jurors and during the trial, the juror said to have been “contaminated” heard that a settlement offer had been made to plaintiff. He reported what he heard to the trial judge. The judge notified counsel and questioned the juror, himself an attorney, out of the presence of the other jurors. The juror assured the judge that he could hear and decide the case impartially in spite of what he had heard and that he had not and would not mention the remarks that he overheard to the other jurors. This juror was told that the remark he heard was not true and that he could not permit it to influence his considerations of the case. The juror was then permitted to resume his duties and the trial went on to its conclusion.

We do not view the reinstatement of this juror as reversible error. We note that the verdict was unanimous and find that there is no evidence to support a conclusion that the subject influenced the other jurors in any fashion. In other cases of alleged bias, where nine unbiased jurors agreed, their verdicts have been allowed to stand. Druilhet v. Comeaux, 317 So.2d 270 (La.App.3rd Cir. 1975), cert. den. 321 So.2d 363 (La.1975); Blandino v. Brown Erection Co., 341 So.2d 577 (La.App.2d Cir. 1977). Trial judges are vested with wide discretionary powers in determining the capability of jurors and no abuse of that discretion has been established in this case.

THE JURY CHARGES

The appellant contends that serious errors were committed in charging the jury in this case and that these errors led to what plaintiff regards as an erroneous result. There was, however, no contention made that we should remand for a new trial because of these errors. With the case in this posture, the question of whether or not the jury was properly instructed affects the weight that should be given to the jury findings. If the instructions were proper, the judgment should be reversed only for manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). On the other hand, if the instructions were inadequate or improper, we are required to reach our own factual determinations without regard to the manifest error rule. La.Const.1964, Art. 5, Sec. 10(B); Higgins v. Johnson, 349 So.2d 918 (La.App. 1st Cir. 1977); Bond v. Jack, 387 So.2d 613 (La.App. 3rd Cir. 1980). We would then be bound to render the judgment which we conclude is just, legal and proper upon the record on appeal. La.Code Civ.Proc. Art. 2164.

The trial judge refused to give plaintiff’s proposed charge Number 52 which read as follows:

You are instructed that under Louisiana Law, contributory negligence is not a viable defense in a products liability cause of action based on strict liability.

Plaintiff also sought to have the jury instructed that an executive officer has a higher degree of care than his subordinate employees. A portion of the proposed charge bearing on this was given and it read as follows:

The negligence aspect of this case involves a comparison of duties. In considering negligence and contributory negligence in a given situation, the jury should not necessarily demand identical conduct of the plaintiff and the defendants, and varying factors affect what conduct the standard of a reasonable man requires. (From Payton v. Travelers Ins. Co., 373 So.2d 1324 at 1328.)

The portion of the proposed charge that was deleted was intended to immediately follow the material above. It was also taken from Payton, ibid., and read as follows:

In the present case you are entitled to exact a higher degree of care from the supervisory employees who had the responsibility for the safety of the subordinate employees and the responsibility of furnishing the subordinate employees with safe and adequate equipment to perform expected tasks.

In place of the material that was deleted, the trial judge inserted this instruction from Miller v. Employers Mut. Liability Ins. Co., 349 So.2d 1353 (La.App. 2d Cir. 1977):

A workman cannot be supervised at every moment. His responsibility to exercise reasonable care for his own safety and protection is at least equal to that of his supervisory co-employees.

The adequacy of jury instruction by a trial court must be determined in the light of jury instructions as a whole. Higgins v. Johnson, 349 So.2d 918 (La.App. 1st Cir. 1977) writs refused 351 So.2d 161 at 162. Where small portions of the instructions are isolated from the context and are erroneous, error is not necessarily prejudicial. Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Bond v. Jack, 387 So.2d 613 (La.App. 3rd Cir. 1980). Thus, on appellate review of a jury trial the mere discovery of an error in the judge’s instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case.

Within the scope of the errors assigned by plaintiff concerning the jury instructions, only three factual conclusions of the jury could be questioned. The first involves the liability of National Drying Machinery, Inc., the second relates to the jury’s finding of contributory negligence on plaintiff’s part, and the third relates to the finding of assumption of risk on his part.

With respect to the first, assuming that the instructions on contributory negligence and assumption of risk as to National’s liability were inadequate, these errors were harmless. The jury did not reach the contributory negligence issue in reference to the claim against National because they found that National’s negligence was not a proximate cause of plaintiff’s injury and we agree with that finding.

National Drying Machinery, Inc. manufactured the fan assemblies for duPont according to design specifications provided by duPont. There is no question that a brake mechanism incorporated on the fan shaft could have prevented this accident, but no such mechanism was requested by duPont. The fans had been in use for several years and duPont never complained to National that routine maintenance of the fans or motors caused any problems.

The duPont company was in a position to have and did have knowledge that its maintenance men had problems stopping the windmilling fans if only one fan out of pair was de-energized. National cannot be held responsible for duPont’s design and its failure to properly supervise the machine’s use and maintenance. A manufacturer is not required to follow a product into the hands of informed consumers in an effort to prevent any and all possible accidents. Dixon v. Gutnecht, 339 So.2d 1285 (La.App. 1st Cir. 1976) cert. den. 342 So.2d 673 (La.1977).

The next error assigned by plaintiff concerning jury instructions relates to the jury’s conclusion that plaintiff was contributorily negligent. The specific complaint raised by plaintiff against the charge on contributory negligence is that the trial judge failed to instruct the jury that the degree of care required of an executive officer in determining his negligence is greater than that required of the workman in determining his contributory negligence. Thus, plaintiff insists that his instruction taken from Payton v. Travelers Ins. Co., supra, was required and a mixture of a portion of his requested Payton charge with defendants’ requested charge from Miller v. Employers Mut. Liability Ins. Co., supra, constituted reversible error.

Plaintiff’s approach to the problem is an oversimplification of the trial judge’s duty under LSA-C.C.P. Art. 1792 to charge the jury “on the law applicable to the cause submitted to them.” The Payton language selected by plaintiff was from a discussion of negligence on the part of those executive officers as well as contributory negligence on Payton’s part in the factual context where Payton was found to have no alternative but to manhandle a heavy engine part with the attendant risk of slipping.

In the instant case, plaintiff took it upon himself to employ a method he already discovered was unworkable and dangerous and he ignored alternative measures available to him. In arriving at the conclusion that plaintiff was contributorily negligent the jury was undoubtedly greatly influenced by the following instruction submitted by defendants from the Miller case and which is quite applicable here:

“In determining whether an employee has been contributorily negligent, you should consider the following factors:
1. Relative knowledge of the danger by the supervising employee and the injured employee;
2. Relative control over the employee’s situation;
3. The degree to which the employee’s conduct is voluntary on his part;
4. Alternatives available to the employee;
5. Obviousness of the danger; and
6. Relative ability to eliminate the danger.”

Under the facts of this case we cannot agree that the trial judge committed reversible error by including the other instruction requested by defendants from Miller, to wit:

“A workman cannot be supervised at every moment. His responsibility to exercise reasonable care for his own safety and protection is at least equal to that of his supervisory co-employees.”

Plaintiff’s negligence which caused his accident was nothing more than a failure to exercise common sense like the plaintiff in Richards v. Farmers Export Co., 377 So.2d 859 (La.App. 4th Cir. 1979). Degrees of responsibility and care as between employees and supervisors have no application to every single act performed by a workman every single moment of his working day. It is applicable when some pervasive negligence on the part of an executive officer prevents the workman from using his common sense in the performance of a particular chore, but such is not the case here.

This jury made an affirmative decision that plaintiff was guilty of contributory negligence after hearing numerous witnesses over several days of trial. A careful review of the arguments presented to the jury by all counsel demonstrates that the contributory negligence issue was paramount in everyone’s mind. A Court of Appeal must exercise great restraint before throwing out a jury verdict on the suggestion that the instructions were so erroneous as to be prejudicial. Invariably, jury instructions, especially those requested by parties, are arguably incorrect, and the loser at trial can usually find some deficiencies in them. But the question is whether the jury was misled to the extent that it was prevented from doing justice. In the instant case this jury was given sufficient instructions to make the decision that plaintiff caused his own accident by plain, garden variety carelessness, and the presence or absence of a paragraph buried deep in the judge’s charge reciting some legal abstractions would not change that verdict. Any error was harmless at worst. Thus, we review the facts of the case only to determine if the jury’s conclusion that plaintiff was contributorily negligent was manifestly erroneous.

The accident occurred while plaintiff and two co-employees were attempting to repair a fan pulley in the neoprene drying process section of the plant. The neoprene drying process required movement of air around moving neoprene film. This was achieved by situating a number of fans over the drying machinery along the drying line in pairs on opposite sides of the line. The arrangement of fans was such that if one fan in a pair was turned off, the air being moved by the other paired fan would cause the de-energized fan to rotate backwards or “windmill”.

Safety rules in effect at the plant required that electrical power be cut off from machinery before repair work commenced. The cut-off switches were supposed to be tagged and locked to insure protection of mechanics working on equipment. The mechanics were not supposed to attempt repairs on moving equipment. In the situation under consideration, the fan would rotate even though its own power was cut off.

On the morning of the accident the plaintiff and two co-employees, Sam Lavigne and Jerry Robertson, were given job assignments by their supervisor and the mechanic foreman, Jack Evans. He instructed the three men to replace a cracked pulley connected to one of the neoprene dryer fan motor shafts. The pulley to be replaced drove a second pulley situated on the fan shaft. The two pulleys were connected by belts. None of the three men in the repair team had experience in stopping a windmilling fan.

After the work assignments were handed out, Lavigne and Robertson informed the plaintiff that they had to go to the plant doctor’s office for physical exams. Since it appeared that Lavigne would be back before Robertson, Brown elected then to go ahead and get things ready to begin the repair project and to wait for Lavigne’s return before actually starting. Brown’s first step in getting things ready to start work was to see a Mr. Lavourette who was the production foreman and in charge of the moving neoprene drying line. Since Brown did not know where the electrical cut-off switches were located, Lavourette took him to the switch box where Lavour-ette cut off the power to the one fan to be repaired and the two men tagged and locked the switch according to established procedures. Lavourette then escorted Brown to the fan where Brown first noticed that it was still turning. Then Lavourette left Brown alone with the machine. Brown returned to the shop area where he ran into some other mechanics whom he asked what tools were needed. Brown testified that a Mr. Boudreaux and a Mr. Marcel told him that he needed a pipe wrench and a wheel puller. However, they testified that they told him that he also needed a pry bar to stop the windmilling fan. Brown testified that he asked them if he was to use the pipe wrench to stop the fan and according to Brown, they told him “Yes, that was the way everybody did it”. Brown then took the wheel puller and the pipe wrench back to the fan and waited for Lavigne to come back from the medical department.

When Lavigne and Brown started to replace the defective motor pulley, Lavigne removed the fan belt guards. Then, plaintiff attempted to stop the rotation of the moving blower by applying friction against the outside faces of the belts by pressing a 24 inch pipe wrench against them. Plaintiff made several unsuccessful attempts to stop the rotation in this manner, but he was unable to stop the shaft and the belts. He could only slow down the equipment.

After several unsuccessful attempts had been made, Lavigne suggested throwing a wrench into the sprocket. Brown responded, “Let me do it one more time”. During this final attempt to stop the equipment, the pipe wrench somehow got caught in the fan belts and the wrench was propelled upward striking plaintiff in the face. The forces involved were sufficient to knock plaintiff upward and backward and to cause multiple facial fractures that required extensive surgery and hospitalization.

Brown testified that when he first went up to the fan’s location he thought that the situation looked dangerous, but that he could do the job without being hurt. La-vigne’s testimony is, for the most part, consistent with that of Mr. Brown. Lavigne said that he could see that Brown was not being successful in trying to slow the equipment down with the wrench. He said that Brown told him to ask other mechanics nearby how to stop the belt and they told him that they should try a “pry bar”. He testified that while Brown was attempting to slow the machinery down with the wrench, Brown stated “This is a hell of a way to do a job”, and Lavigne responded that, “I don’t believe that you can stop it like that”. He testified that after Brown made the comment, “Let me try it one more time”, the wrench slipped out of Brown’s hand and “it came up in that belt and it came back at him, it hit him in the jaw. It picked him off the ground about four foot in the air and it leveled him out and he fell on the ground”.

The evidence also established that other mechanics including the foreman, Evans, had had difficulty stopping fans such as the one that injured plaintiff on other occasions. They used metal pry bars or sometimes wooden levers to apply leverage and pressure against the fan shaft and thus caused the shaft to stop rotating. Even though it may have been suggested to Brown and Lavigne that they use a pry bar, no other foreman or mechanic experienced in stopping this machinery explained to them how the pry bar process worked.

In this case Mr. Brown acknowledged that he had a great deal of prior experience with machinery. It began when, as a child, he began cutting grass with a power lawn mower and first became aware of the danger of moving belts on machinery. Considering his training and background, we regard Mr. Brown’s decision to attempt to stop this windmilling fan with his hands and a wrench as unreasonable conduct. It is unreasonable because the danger was obvious.

The placing of one’s hand in moving equipment was held to be unreasonable in Albert v. J & L Engineering, 214 So.2d 212 (La.App. 4th Cir. 1968). In that case Judge Regan stated that for the plaintiff to put his hand inside a sugar harvester was exposure to an obvious danger. He said that danger was open and obvious “just as are a chain and sprocket on a bicycle, the turning blades of a fan or the whirling blades of a reel type lawn mower”. An attempt to work on a moving turbine was regarded as exposing one’s self to an obvious risk in Pearson v. Hartford Accident & Indemnity Company, 345 So.2d 123 (La.App. 1st Cir. 1977). It is our opinion that there is no significant difference between what Mr. Brown did and what the plaintiffs were doing in the Albert and Pearson cases. See also Richards v. Farmers Export Co., supra.

Having concluded that the jury correctly found plaintiff guilty of contributory negligence wc are not obliged to consider the finding that he assumed the risk or his arguments concerning the judge’s instructions on this issue.

It is our view that the result obtained in the trial court was correct. However, costs should not have been cast against Evans and National. All costs are taxed against the plaintiff.

AMENDED AND AFFIRMED.


author: SCHOTT, Judge.

text:
    Kimberly KIRKPATRICK v. CITY OF NEW ORLEANS, New Orleans Police Department, James Parsons, and John Doe.
    No. 12230.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 1981.
    Rehearing Denied Nov. 20, 1981.
    Charles J. Pisano, New Orleans, for plaintiff-appellant.
    Salvadore Anzelmo, City Atty., George L. LaMarca, Asst. City Atty., George R. Sim-no, III, Deputy City Atty., New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This is an appeal by plaintiff from a dismissal of her tort suit for damages she sustained while on duty as a New Orleans police officer. Defendants-appellees are the City of New Orleans, its police department, and James Parsons, police superintendent. The issue is whether, under the allegations of plaintiff’s petition, her workers’ compensation remedy is exclusive, or, conversely, has she stated a cause of action against defendants for intentional tort.

When plaintiff’s brief was filed in this court in January, 1981, she properly relied on Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980) which supported her theory of liability against Parsons. However, this court’s decision in Bazley was subsequently reversed by the Supreme Court, 397 So.2d 475 (La.1981) and before oral argument plaintiff was ordered to reconsider her position.

She now contends that her allegations are sufficient under the Supreme Court’s Bazley ruling to state a cause of action against Parsons as well as the city and its police department because of her inclusion of the words “willfully and recklessly” as applicable to defendants’ actions. We disagree.

Plaintiff alleges she was injured while attempting to make an arrest. She states:

“X
The aforementioned accident and injuries suffered by the petitioner were solely a result of the negligence of the defendant, City of New Orleans, New Orleans Police Department and James Parsons in the following manners:
(A) Willfully and recklessly sending the petitioner on night patrol without a partner and without a cage in the patrol car when they knew that such a practice was ultra-hazardous.
(B) Sending the petitioner on night patrol alone in an area known by them to be a high crime district.
(C) Failing to provide enough patrol cars with cages to the 1st District, a known high crime area, which, if done, would have prevented this accident.
(D) Others too numerous to mention which will be brought out during the trial.”
“XIII
At all times pertinent to this suit the defendants, James Parsons, and John Doe were acting within the course and scope of their employment with the City of New Orleans and therefore the City of New Orleans is responsible for their negligence under the doctrine of respondent superior.”

We have concluded that these allegations are not sufficient to allege intentional tort on the part of Parsons as discussed by the Supreme Court. However, considering C.C.P. Art. 934 and assuming that plaintiff can allege facts establishing that Parsons intended to injure her, we will allow plaintiff an opportunity to amend her petition to state a cause of action against Parsons.

However, as to the city and department Art. 934 is not applicable because we cannot conceive of an amendment which could remove the grounds of the objection.

Act 147 of 1976 amending R.S. 23:1032 did not affect the employer’s tort liability for intentional tort, Guidry v. Aetna Casualty & Surety Co., 359 So.2d 637 (La. 1st Cir. 1978). Plaintiff contends her petition states a cause of action against the city and the department for vicarious liability for Parsons’ intentional tort. Such cases as Miller v. Keating, 349 So.2d 265 (La.1977) and Lebrane v. Lewis, 292 So.2d 216 (La.1974) are examples of employers being held liable for employees’ intentional torts but the circumstances in these cases were highly unusual and in no way similar to the instant case. Even if plaintiff can somehow allege facts which will support the legal conclusion that Parsons’ alleged tort against her was intentional, such facts could not support a conclusion of vicarious liability on the part of the city and the department.

Accordingly, those portions of the judgment sustaining the exceptions of no cause of action and dismissing plaintiff’s suit against the City of New Orleans and the New Orleans Police Department are affirmed. That portion of the judgment dismissing plaintiff’s suit against James C. Parsons is reversed and set aside. The case is remanded to the district court where plaintiff may amend her petition in accord-anee with C.C.P. Art. 934 to state a cause of action against James C. Parsons.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


author: CULPEPPER, Judge.

text:
    Louella Cain MILLER, Plaintiff-Appellant, v. Virgle E. MILLER, Defendant-Appellee.
    No. 8123.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Come & Block, Gerald J. Block, Lafayette, for plaintiff-appellant.
    William J. F. Gearheard, Howard Martin, Lafayette, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   CULPEPPER, Judge.

This is a suit for partition of community property. The defendant answered denying the listed movables and immovables were community property and asking for various set-offs and counter-claims against the community. After a hearing, a post-trial conference was held in the judge’s chambers and plaintiff and defendant agreed to the inclusion of certain items in the community and a division thereof, and to the payment of certain amounts to each party out of the sale of community assets. A few issues could not be agreed on by counsel, and the court ruled on those separately. A minute entry was made on May 2, 1980 setting forth the 11 items agreed upon and the three items upon which the court decided. Pursuant to this minute entry, judgment was rendered on June 2, 1980. Plaintiff appealed as to one item. Defendant answered the appeal as to certain other items.

ISSUES PRESENTED ON APPEAL

The plaintiff contests only one of the trial court’s rulings, the holding that plaintiff is entitled to one-half of the amount deposited to Mr. Miller’s account in the Gray Tool Company Profit Sharing Plan but not to one-half of the earnings from these deposits. The defendant’s answer to the appeal presents eight issues which will be discussed in the order listed in his brief.

GENERAL FACTS

Mr. and Mrs. Miller were married on January 23, 1962. A petition for judicial separation was filed on August 2, 1974 and the community was dissolved as of that date. A judgment of separation was subsequently rendered containing an alimony pendente lite award in favor of Mrs. Miller in the sum of $75 per month. Appellee’s brief states the alimony pendente lite award was later disallowed in a judgment on a new trial on about July 5, 1977, but this is not clear from the record, since neither of the judgments referred to is in the record before us. The parties were divorced by judgment dated August 10, 1977. This suit for partition of community property was filed on July 26, 1978.

PLAINTIFF-APPELLANT’S CLAIM TO THE PROFIT SHARING PLAN

On appeal, Mrs. Miller contests only the portion of the judgment decreeing that she is entitled to one-half of the deposits in Mr. Miller’s account in the profit sharing plan but not one-half of the earnings therefrom. The evidence shows Mr. Miller was employed by Gray Tool Company on November 13, 1961. The employer made all contributions to the plan on behalf of the employee. By the time of the termination of the community between plaintiff and defendant on the date the suit for separation from bed and board was filed, August 2, 1974, a total of $8,137.54 had been paid into the fund by the employer for Mr. Miller’s account. The trial judge awarded plaintiff $4,068.77, i. e., one-half of the total amount deposited to Mr. Miller’s account as of August 2, 1974.

The record shows that under the plan an employee must participate for 12 years before acquiring a vested right to receive 100% of the contributions to his account. Up until that time, he has a vested right to receive a lesser percentage, depending on the number of years of his employment. The administrator of the plan testified that Mr. Miller was only 90% vested as of the date of dissolution of the community, since he had been employed by Gray Tool Company for only 11 years. If his employment had ceased on the date of dissolution of the community, he would have had a right to draw 90% of the deposits contributed to his account, or the sum of $7,323.79.

The money contributed to the account is placed in an investment program by the employer. For contributions and earnings the plan year ends September 30. From the date of Mr. Miller’s employment on November 13, 1961 to September 30, 1978, the end of the last plan year before the trial in 1979, the $7,323.79 to which Mr. Miller had a vested right earned the total sum of $10,102.53. The total of these two sums is $17,426.32, of which Mrs. Miller contends she is entitled to one-half, or the sum of $8,713.16. We agree.

Louisiana Civil Code Article 2334 classifies as community that property acquired by the husband and wife during marriage. C.C. Article 2402 adds to the definition of community property:

“. . . the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may require during the marriage, either by donations made jointly to them, or by purchase, or in any other similar way, . . . . ”

The above rule applies even if the acquisition is made only in the name of one of the spouses. In that case, the time of the acquisition controls rather than the one who made it. Finally, Article 2406 is the authority for division of the assets of the community into equal portions between the husband and wife at the dissolution of the marriage.

In support of her position that she is entitled to share in the earnings of the account, as well as the contributions, plaintiff relies upon T. L. James & Company, Inc. v. Montgomery, 332 So.2d 334 (La.1976); Sims v. Sims, 358 So.2d 919 (La.1978); and Lane v. Lane, 375 So.2d 660 (La.App. 4th Cir. 1978). The Supreme Court in T. L. James, supra, settled the question of whether an account in a pension or profit sharing plan consisting only of contributions from the employer is community. The court answered in the affirmative, decreeing that when a community is dissolved, the employee’s spouse is entitled to be recognized as owner of one-half of the value of the right-to-share, insofar as attributable to the contributions paid into the fund as deferred compensation to the employee during the existence of the community. The case concerned both a defined benefits plan with specific guaranteed benefits and a defined contributions plan in which a separate account was kept for each employee as the sole source of payments of benefits. The defined contribution plan, the type with which we are dealing in the instant case, involves a fund which fluctuates in value depending on market value, gains, income and forfeitures within the plan. The employee had died, so that benefits were payable and the amounts due were ascertainable. The court did not make a distinction between the types of plans nor did it consider the effects of the plans’ vesting provisions of the right to share. To classify the funds in each plan as belonging to the first community, separate estate of the husband or second community, the court utilized a straight proportionate interest approach, such that the value of the right to share proportionately in the fund, acquired by virtue of each contribution, falls into the community during which the contribution was made. From this the resultant method of apportionment was reached by the court:

“The value of each contribution paid into the fund shall be a share of the fund of the same proportion that the contribution’s amount bears to the total amount of all contributions paid into the fund to the employee’s account.”

Sims v. Sims, supra, involved a Federal Retirement Plan in which both employer and employee made matching contributions to the fund. The annuity was based not on contributions, but on average pay, number of years of creditable service and age. The court in a footnote recognized that this was a defined benefits plan and noted the suggestion of Professor Gerald LeVan in Allocating Deferred Compensation in Louisiana, 38 La.L.Rev. pg. 35 that allocation in such a plan should be determined on the basis of benefits purchased during the community rather than the amount of the community’s contribution, since there is no relation between contributions and benefits. It was noted there that the community interest stems not only from contributions made by community funds, but also by reason of any right to receive proceeds attributable to such employment during the community. To support her position that she is entitled to a one-half interest in the earnings on the funds in Mr. Miller’s profit sharing, plaintiff argues that implicit in Sims is the recognition that “a wife’s interest in an annuity or pension not payable until some future date should include the earnings on that portion considered a community asset.” This position comports with the principles of Louisiana Civil Code Article 2402 quoted above.

The trial and intermediate courts in Sims had held that the wife’s interest in the husband’s pension rights was limited to one-half the cash contributions at date of dissolution of the community, as did the trial court in the instant case. The Supreme Court reversed the decision and specifically overruled Langlinais v. David, 289 So.2d 343 (La.App. 3rd Cir. 1974), which had taken the same approach, holding that the wife was entitled to receive one-half of all benefits payable to the husband. It further held that the right to receive benefits under a retirement plan is a community asset to the extent attributable to employment during the community, and that the wife was entitled to present recognition of her interest in pension rights when they became payable to or for the husband. The community interest in the payments was defined as the proportionate part of them resulting from the spouse’s employment or contributions during the community expressed in the following ratio:

Portion of pension attributable to credit-
able service during existence of community
(19 years, 6 months)_ X X annuity (or
Pension attributable to total creditable lump-sum payment)
service (still not determined) “

The Sims equation has been utilized in at least two subsequent decisions by intermediate courts, including Thrash v. Thrash, 387 So.2d 21 (La.App. 3rd Cir. 1980), writ denied, La., 393 So.2d 745, and Kennedy v. Kennedy, 391 So.2d 1193 (La.App. 4th Cir. 1980).

Plaintiff further relies on Lane v. Lane, 375 So.2d 660 (La.App. 4th Cir. 1978), decreeing that income from the community from the time of dissolution of the community until final partition was to be divided equally between the parties.

Defendant’s brief merely states that he agrees with the trial court’s disposition regarding the profit sharing plan. He cites no cases in support of his position. Indeed, with the overruling of Langlinais, supra, by the Louisiana Supreme Court in Sims, supra, there is little or no jurisprudential support for awarding the non-employee spouse only one-half the contributions to a pension or profit sharing account. Thus, there appears to be little doubt that the wife is entitled to have recognized her one-half interest in the entire amount shown attributable to the community, including earnings, according to the authority in T. L. James and Sims, supra.

Here, as in T. L. James, we have a defined contribution plan. The employee continues to be employed such that benefits are not yet payable and the amount thereof is unascertainable. The portion of the account on which the employee is entitled to draw is determined by the number of years of service, as in Sims. However, Sims involved a defined benefit plan rather than a defined contributions plan. There is, therefore, a basis for distinguishing this case from Sims and going back to the straight proportionate interest approach under T. L. James, which would disregard the fact that the husband was not entitled to draw on 100% of his account. In that case, the wife would be entitled to recognition of her one-half interest in the full amount of $8,137.40, plus the earnings thereon. There was no testimony as to the exact amount of earnings on this figure. There may have been none attributable to the remaining 10% of the account in which defendant did not have a vested right. By the same token, there may have been earnings attributable to the remaining $813.61, which should be included under this approach. If so, it would be improper to fail to include them. The other alternative is to disregard the distinction between this case and Sims and take into account the percentage of the funds from which the husband was entitled to draw at the date of dissolution of the community. The result would be, as plaintiff is seeking, recognition of the wife’s one-half interest in 90% of the account, plus the earnings on that amount testified to by the company representative. We agree.

DEFENDANT’S CONTENTIONS IN ANSWER TO THE APPEAL

We will now discuss in the order presented in his brief the eight contentions by defendant in answer to the appeal.

The first of defendant’s eight contentions is that the trial judge failed to allocate between the parties the proceeds received from the rental of the community home. This is in error. Both the minute entry reflecting the agreement of the parties at the post-trial conference and paragraph 5 of the judgment appealed state that the family home is to be sold “and rentals received from the rental of the aforesaid house are to be divided equally between the parties after payment of commission and the fee for preservation of the premises as reflected by the records of Mr. Joseph Anzalone.”

Defendant’s second contention is that he is entitled to a credit against the community for a total of $2,625 in alimony pendente lite of $75 per month which he paid to plaintiff under the judgment of separation, before this alimony was disallowed on a new trial. This argument has no merit. In Gondrella v. Gondrella, 347 So.2d 938 (La.App. 4th Cir. 1977), the court stated the general rule that previous pay-merits of alimony pendente lite do not form the basis for a credit to a husband from community funds, because the obligation to pay such alimony arises from the marriage and is not a debt of the community. Although under special circumstances the court has the discretion to diminish or eliminate alimony retroactively, as for instance in Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978) where the court found the wife had concealed her fulltime employment, no such special circumstances are shown by the record before us in the present case. The general rule is therefore applied.

Defendant’s third contention is that he should be given credit for one-half of an alleged promissory note in the sum of $4,400 allegedly given by defendant to his sister to obtain funds to make the down payment on the community home. This and some of the other claims by defendant fail for lack of proof. The only evidence is the testimony of the defendant that the funds were borrowed during the marriage and were used for the down payment on the home. The trial judge stated the evidence was not sufficient to show defendant was entitled to this credit. The trial judge was not clearly wrong in this finding of fact.

Defendant’s fourth contention is that the amounts of attorneys’ fees paid by him to his three attorneys, namely, Kenneth May-ers (apparently defendant’s attorney in the separation proceedings) in the amount of $800, Howard Martin (apparently defendant’s attorney in the divorce proceedings) in the amount of $1,830, and William Gear-heard (defendant’s attorney in the present partition proceeding) in the amount of $7,378.47 should be paid from assets of the community. In the judgment appealed in this partition suit, the trial judge ordered that attorneys’ fees in the amount of $5,000 be awarded to J. Minos Simon, Ltd., attorney for Louella Cain Miller, and that an equal sum of $5,000 be paid to William J. F. Gearheard, attorney for Virgle E. Miller, said attorneys’ fees to be paid from the assets of the community. This was not an item agreed to by the parties in the post-trial conference, as shown by the minute entry. Defendant agrees that the sum of $5,000 should be paid to plaintiff’s attorney, but he argues that this $5,000 should be added to the amounts shown above which defendant actually paid to his three attorneys, making a total of $15,008.47, and that defendant should receive one-half of that amount, or $7,504.24, from the community assets.

The question of attorneys’ fees is confusing. In the first place, the law is clear that neither plaintiff’s nor defendant’s attorney is entitled to any fees for services rendered in connection with this partition proceeding, since it is contested. Talbert v. Talbert, 199 La. 882, 7 So.2d 173 (1942); Lane v. Lane, 375 So.2d 660 (La.App. 4th Cir. 1978); Donica v. Donica, 347 So.2d 1259 (La.App. 1st Cir. 1977); LSA-C.C.P. Article 4613. The law is also clear that neither plaintiff nor defendant is entitled to recover from the community attorneys’ fees for services rendered in the divorce proceedings, where the community had been previously extinguished in the separation suit. Palmatier v. Palmatier, 394 So.2d 731 (La.App. 3rd Cir. 1981). Thus, the only attorneys’ fees which either plaintiff or defendant are entitled to recover from the community assets are those for services rendered in the separation proceedings. The record before us does not show the amount of such fees. Perhaps we could assume that the $800 paid to defendant’s first attorney, Kenneth Mayers, is the amount actually paid to him for services rendered to defendant in the separation suit. However, it would be unjust to award defendant his fee and not make an award to plaintiff for the services of her attorney rendered in the separation proceedings. Of course, we could remand the case for the establishment of the amounts of these fees for the attorneys for both plaintiff and defendant. However, neither party has requested a remand. It may be that the attorney’s fee to which each is entitled is about the same, and the parties would not desire a remand with the consequent delay and expense. Accordingly, we will deny all attorneys fees to both parties. If either party wishes a remand, he or she can ask for it in an application for rehearing.

Defendant’s fifth contention is that he is entitled to a credit of one-half of the sum of approximately $2,200 which he paid on community debts to Sears-Roebuck, Montgomery-Wards and Foley’s Department Store. The trial judge rejected this claim also for lack of sufficient proof. The trial judge is not clearly wrong in this finding of fact.

The sixth contention by defendant is that he is entitled to be reimbursed by the community the sum of $14,681.50 representing his separate and paraphernal funds in his bank accounts at the time of marriage and used during the existence of the community to purchase 500 shares of stock in Texaco, Inc. and 500 shares of Gulf Oil Company, Inc. The community still owned these stocks at the time of its dissolution and the judgment appealed orders the division of the stock and dividends one-half to each party. Although defendant argues in his brief that the district judge failed to rule on this claim, the minute entry containing the decision by the trial judge on the contested issues shows he states that based on his evaluation of the credibility of the witnesses and the evidence adduced, the claim (by defendant) for restitution of separate funds is denied. The rule is that where the husband claims restitution from the community of separate and paraphernal funds used to purchase community assets, the mere fact that the husband possessed the funds at the time of the marriage is not sufficient proof. In the similar case of Succession of Hotard, 248 So.2d 30 (La.App. 1st Cir. 1971) the husband testified he had $10,-000 in bank accounts at the time of the marriage, but he produced no records to corroborate this testimony. The court held the husband’s uncorroborated testimony as to the fact that he owned the funds at the time of the marriage and that he used the funds while still separate to purchase community assets, was not sufficient. See also Vicknair v. Vicknair, 284 So.2d 836 (La.App. 4th Cir. 1973), citing Roussel v. Lindsey, 262 So.2d 516 (La.App. 4th Cir. 1972). In the instant case, as in Vicknair, supra, the only evidence is the testimony of the husband that he had the separate funds and used them to buy the community stock. There is no other evidence as to the disposition of the funds. The trial judge states that based upon the credibility of the witness (defendant) and the lack of any other evidence, the right to this refund is not sufficiently proved. This factual finding by the trial judge is not clearly wrong.

The seventh contention by defendant is that he is entitled to one-half of the purchase price, $1,750, of a 1971 Ford Tori-no, which the wife retained after the dissolution of the community. Under the general rule, the defendant would be entitled to a credit against the community for one-half of the value of the automobile. However, the actual value of the vehicle is not proved. Moreover, the record shows that there was a dispute not only as to this automobile but as to several other items of movable property. The minute entry shows movable effects sold by both parties for the sum totaling $3,962.30 are to be divided equally between the parties, or $1,981.15 each, with Mrs. Miller owing Mr. Miller the additional sum of $813.20. The judgment appealed contains a similar provision. It is our understanding of the record that this compromise settlement as to the movable effects includes the automobile. There is nothing in the record to the contrary.

The eighth contention by defendant is that he is entitled to a credit against the community for one-half of the amount of the loss on 400 shares of W. T. Grant Company stock and 700 shares of Sterling-Ho-mex stock purchased during the community. The loss on the W. T. Grant Company stock was $6,075.61 and on the Sterling-Ho-mex stock $5,906.38, or a total loss of $11,-981.99. Defendant argues that since the court allowed the community to retain the gains on other stocks, defendant should receive a credit for one-half of the loss on these two stocks. This argument is difficult to follow from an accounting and settlement standpoint. The W. T. Grant stock and the Sterling-Homex stock were community property. After dissolution of the community, the stock was sold by Mr. Miller at a loss of approximately $10,000. This loss was suffered by the community, not by Mr. Miller’s separate estate. Therefore, Mr. Miller’s separate estate is not entitled to any credit from the community by virtue of the loss, as Mr. Miller individually lost nothing in the sale of the stock. Moreover, the minute entry showing the items as to which the parties agreed states in paragraph 4 that “stock in Sterling-Homes (sic) and W. T. Grant Company, which have both declared bankruptcy since the date of separation, are of no issue.” (Emphasis supplied) The judgment does not mention thee two stocks. Thus, the trial judge apparently understood the parties had agreed there would be no issues arising out of these stocks. We think this is correct.

For the reasons assigned, the judgment appealed is amended so as to decree that Mr. Miller’s account in the profit sharing plan of Gray Tool Company is a community asset and that plaintiff is entitled to one-half of the total sum, both contributions and earnings, in the account of defendant at the time of trial, the total in the account being proved to be $17,426.32, and plaintiff’s one-half being $8,713.16. The judgment is further amended to decree that the awards of attorneys’ fees in the amount of $5,000 to J. Minos Simon, Ltd., as attorney for Louella C. Miller, and $5,000 to William J. F. Gearheard, attorney for Virgle E. Miller, are reversed and set aside. Otherwise than as amended, the judgment appealed is affirmed. All costs of this appeal are divided equally between plaintiff and defendant.

AFFIRMED, AS AMENDED.


author: GUIDRY, Judge.

text:
    Roland RODGERS, Plaintiff-Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.
    No. 8307.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Hudson, Potts & Bernstein by B. Roy Liuzza, Monroe, Gahagan & Gahagan, M. F. Gahagan, Natchitoches, for defendant-appellant.
    Brittain & Williams, Jack 0. Brittain, Charles Seamen, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, FORET and SWIFT, JJ.
   GUIDRY, Judge.

This is a suit for property damages. Plaintiff, Roland Rodgers, filed this suit against defendants, Missouri Pacific Railroad Company (hereafter, MoPac), W. B. Lindsey, and Lindsey Plumbing, Inc., to recover property damages resulting from a collision between a train owned and operated by MoPac and a 580 B. Case Tractor (more commonly referred to as a “backhoe”) owned by the plaintiff and leased to Lindsey Plumbing, Inc. MoPac filed a third party demand against R. L. Grisby, the operator of the backhoe, contending that if MoPac is held liable to the plaintiff, it is entitled to contribution from Grisby since his negligence proximately contributed to the accident.

On or about August 10, 1979, plaintiff leased a 580 B. Case Tractor (backhoe) to Lindsey Plumbing, Inc. at a rate of $15.00 per hour. Lindsey Plumbing, Inc. thereafter contracted with defendant, MoPac, to provide the backhoe and an operator, R. L. Grisby, to assist in the repair of a railroad crossing. On August 15, 1979, at approximately 1:00 p.m., during a lull in the crossing repair work, Grisby parked the backhoe as close to the railroad crossing barrier as possible, and went to his truck to take some medicine. Approximately three minutes after parking the tractor and without any prior warning, Grisby heard one of the work crew members yell that a train was approaching the crossing. Upon seeing the oncoming train, Grisby immediately ran to the backhoe to move it to a position of safety. Grisby testified that the tractor is equipped with a starting gear and that in his haste to start the engine, he missed the gear and was unable to move the machine. Shortly thereafter, Grisby jumped to safety at the urging of his co-workers. Although the front of the train did not strike the tractor the backhoe was damaged when a handrail extending from the locomotive struck the bucket of the backhoe resulting in extensive structural damage to the machine.

The trial court held in favor of the plaintiff and against MoPac awarding damages in the sum of $9,459.79. The trial court dismissed plaintiff’s demands against Lindsey Plumbing, Inc., and as well, dismissed MoPac’s third party demand against R. L. Grisby. Costs of the trial court proceedings were assessed to MoPac. MoPac appeals from that judgment. The plaintiff and other defendants have neither appealed nor answered the appeal of MoPac.

The issues presented on appeal are: (1) Was MoPac guilty of any negligence? (2) Was Grisby, the operator of the backhoe, guilty of any negligence? (3) Was the trial court’s award of damages to plaintiff for loss of income due to the inoperativeness of the machine excessive?

The trial court concluded that Mo-Pac had an obligation to warn Grisby and its other employees, doing repair work at the crossing, of the approach of oncoming trains and that its failure to do so on the occasion in question was the sole proximate cause of the accident. MoPac contends that the trial court erred in concluding that it had a duty to provide advance warning to Grisby and his co-workers of the approach of oncoming trains and that its breach of such duty was the cause-in-fact of the accident.

In Williams v. City of Alexandria, 376 So.2d 367 (La.App.3rd Cir. 1979), writ denied, 378 So.2d 432 (La.1979), our court stated:

“Negligence is conduct which creates an unreasonable risk of foreseeable harm to others. Negligent conduct becomes a cause in fact of harm to another if it was a substantial factor in bringing about that harm. Negligence is determined by the existence of a risk or hazard and by the violation of a duty to protect certain individuals from such risk. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970). Where the risk of harm encountered by a plaintiff falls within the scope of protection to which a defendant is under a duty to extend, and where there is a breach of that duty, the defendant then becomes liable for any injury resulting to the plaintiff arising from the particular risk or hazard which exists. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976).”

The record reflects, and MoPac concedes in brief, that it is the established policy of MoPac to provide workers engaged in the repair and maintenance of railroad crossings with advance warning of approaching trains. This policy is carried out by a warning being delivered to the Section Foreman a reasonable time prior to the arrival of a train. The Section Foreman upon receiving such notice in turn warns his work crew and makes certain that all equipment and personnel are sufficiently clear of the tracks prior to passage of the train. R. L. Grisby, the operator of the baekhoe, testified that he had worked at other crossings on several previous occasions and that each time he and other crew members were given advance warning of approaching trains. Billy Jennings, Section Foreman for MoPac on the day of the collision, testified that he had been advised on the morning of the accident to expect a train at an unspecified time later that day. However, Jennings stated that he received no subsequent information regarding the location of the subject train and that he did not remember giving Grisby any warning regarding the expected arrival of the locomotive at the subject railroad crossing.

The approach of a train to a crossing being repaired, without prior warning to those individuals engaged in the repair work, clearly creates an unreasonable risk of harm to the men and equipment engaged in the repair work. The risk of foreseeable harm posed by failing to warn work crews in advance of oncoming trains was recognized by MoPac in that it had an established policy requiring such warning. The record reflects that MoPac assigned to their Section Foreman the task of warning the repair crew and cheeking the tracks to insure that all equipment and personnel were clear of the tracks long prior to the arrival of a train at the crossing. Although the usual practices and policies of a company are not conclusive or controlling when determining if sufficient care has been exercised, it is certainly a factor to be considered.

Under the circumstances of this case we conclude that MoPac had a duty to Grisby and its other employees to provide advance warning of the approach of any train to the crossing being repaired. MoPac violated this duty.

Defendant contends that the trial court erred in concluding that MoPac’s failure to warn Grisby of the approach of the train was the cause-in-fact of plaintiff’s damages.

In Stewart v. Gibson Products Co. of Natchitoches Parish, La., Inc., 300 So.2d 870 (La.App.3rd Cir. 1974), our court in discussing cause-in-fact stated:

“Liability does not attach unless the conduct complained of bears a causal connection in fact to the occurrence of the accident. Craig v. Burch, 228 So.2d 728, 729 (La.App. 1 Cir. 1969). If the acts of defendant were necessary antecedents to the consequences in question, they are a cause in fact of those consequences. This has become known as the ‘but for’ or sine qua non rule. Arnold v. Griffith, 192 So. 761, 763 (La.App. 2 Cir. 1989); LaCas v. Hartford Accident & Indemnity Company, 152 So.2d 644 (La.App. 2 Cir. 1963). In determining cause in fact in a negligence case, causation should be considered by the trier of fact without reference to policy overtones that are involved in the case, and if plaintiff can show that he probably would not have suffered the harm complained of but for the defendant’s conduct, he has carried the burden of proof on this question. Malone, Ruminations, supra, pp. 370-73. ...”

Defendant argues that the machine operator, Grisby, was negligent in parking the backhoe and that his negligence, not Mo-Pac’s, was the cause-in-fact of the collision. In this regard, defendant avers that Grisby was fully cognizant of the likelihood that trains would pass through the subject railroad crossing, yet despite this knowledge, he parked the backhoe in such a position as to be afoul of the tracks. In support of its argument, MoPac avers that Grisby testified at trial that at the time he parked the machine, he thought that it was sufficiently clear of the tracks. Further, defendant argues that since Grisby stated at trial that had he had advance warning of the oncoming train, he believed that he would have parked the backhoe in the same position as at the time of the collision, then obviously, MoPac’s failure to warn was not the cause-in-fact of the accident. We reject defendant’s argument.

Initially, we observe that Grisby was reasonable in assuming, based upon past experience, that MoPac’s Section Foreman would provide him with sufficient advance warning of the approach of any train to the crossing so that he could make sure that his tractor was not afoul of the tracks. Acting pursuant to this assumption, Grisby acted both reasonably and prudently when he parked the backhoe since he positioned the tractor as close as humanly possible to the railroad crossing barrier, some three feet from the tracks. Also, we note that Grisby intended only to leave the machine in that position for a few minutes while he went to his truck for medicine. Further, we conclude in light of the facts, that Grisby’s statement at trial regarding his positioning of the machine was obviously an afterthought since at the time, immediately pri- or to the collision, when Grisby first became aware of the imminent arrival of the train at the crossing, he, without hesitation, ran to the tractor and attempted to move it clear of the tracks. Surely, if Grisby was confident that he had parked the backhoe clear of the railroad tracks, he would not have placed himself in a potentially dangerous position by running to the backhoe and attempting to start it and move it to safety. Thus, we conclude that Grisby’s actions immediately prior to the collision more truly reflect his perception of the situation existing immediately prior to the accident than does his testimony at trial over one year after the accident.

Additionally, MoPac contends that Grisby was negligent in failing to shift the backhoe into its starting gear, thus, preventing him from moving the machine to a position of safety. Testimony at trial indicates that the subject backhoe was difficult to shift into its starting gear under the best of conditions. We cannot conclude that Grisby’s failure to immediately engage the machine into its starting gear while he was in a position of imminent peril, constitutes negligence. The courts have recognized previously that one who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. See Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). Therefore, we conclude, in light of the record, that Grisby acted reasonably and prudently in parking and subsequently, attempting to move the baekhoe. In summary, we discern no manifest error on the part of the trial court in its factual conclusions that Grisby was not negligent and that the defendant’s negligence was the cause-in-fact of plaintiff’s damages. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

DAMAGES

MoPac contends that the damages awarded to plaintiff for loss of income due to the inoperativeness of the baekhoe are excessive.

In fixing the award in this case, the trial court relied upon a repair estimate furnished by Red River Equipment of Shreveport, Louisiana, which estimated the cost of repairing the baekhoe to its condition prior to the collision as $6,717.64. The accuracy of this estimate is supported by the testimony of Dale Pendleton, Service Manager of Red River Equipment, and the plaintiff. MoPac does not contest the trial court’s award for the cost of repairing the tractor. However, defendant does question the amount awarded to plaintiff by the trial court for loss of income during the period in which the baekhoe was inoperative.

The record reflects that the plaintiff’s earnings from rental of the machine during the 7V2 month period preceding the collision was $8,226.45 or an average of $1,096.85 per month. We observe that the trial court awarded plaintiff the sum of $2,742.15 for loss of income. Presumably, the trial court concluded that two and V2 months was a reasonable period of time in which to repair the tractor and thus, awarded plaintiff 2 and V2 times his average monthly income derived from rental of the machine. We conclude that the trial court’s award to the plaintiff should be reduced.

There is nothing in the record to support the trial court’s conclusion that two and one-half (2V2 months was a reasonable period of time in which to repair the baekhoe. Quite to the contrary, Dale Pendleton, Service Manager for Red River Equipment, estimated that it would require one hundred (100) hours to repair the machine to its prior condition. Even considering a five (5) hour workday, the repairs could be accomplished within twenty (20) days. In addition, the plaintiff, himself, testified that once he began repairing the tractor, it was put in operable condition within twenty-one (21) days. In this connection, we note that plaintiff testified that he did not begin to repair the damaged machine until October 9, 1979. Rodgers stated that he did not have the time to devote to the backhoe’s repair nor did he have the funds to pay Red River Equipment for such repairs. We do not believe that MoPac should be penalized for plaintiff’s failure to commence repairs within a reasonable time. In Blum v. Allstate Insurance Co., 351 So.2d 283 (La.App.3rd Cir. 1977), writ denied, 353 So.2d 1036 (La.1978), our court stated:

“Where the plaintiff himself is negligent in having the repairs completed promptly, he cannot recover for loss of use beyond the time which should have been reasonably necessary to accomplish the repairs. Desselle v. Wilson, et al., supra [200 So.2d 693 (La.App.3rd Cir. 1967)]; Miller v. Travelers Insurance Company, supra [303 So.2d 924 (La.App.3rd Cir. 1974)]; Carimi v. Saia, 301 So.2d 895 (La.App. 4th Cir. 1974); Broadview Seafoods, Inc. et al. v. Pierre, et al., 173 So.2d 37 (La.App. 4th Cir. 1965), affirmed [248 La. 533] 180 So.2d 694; Alderman v. Henderson, et al., 130 So.2d 157 (La.App.2d Cir. 1961); Voitier v. Farrelly, 320 So.2d 581 (La.App. 4th Cir. 1975); Blashfield Automobile Law & Practice, Vol. 15, page 32.”

In light of the above, we conclude that allowing plaintiff damages for loss of income for one and one-half (IV2 months or $1645.28 is reasonable. We so conclude because the record shows that repairs could have been completed within twenty (20) days and we consider twenty-five (25) days post-accident as a reasonable time in which to secure the necessary parts and commence repairs.

For these reasons, the trial court’s judgment will be amended accordingly.

For the above and foregoing reasons, the judgment of the trial court is amended so as to reduce the award in favor of plaintiff from $9,459.70 to the sum of $8,362.94. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are taxed one-half (V2) to appellee, Roland Rodgers, and one-half (V2) to appellant, Missouri Pacific Railroad Company.

AFFIRMED IN PART; AMENDED IN PART.

      . During repair work, the crossing was closed to the traveling public by means of lowered cross-arms which extended across the roadway. Just prior to the collision, Grisby was digging up asphalt in the crossing at the direction of MoPac’s Section Foreman.

      . The record reflects no disposition of this matter as to the defendant, W. B. Lindsey. In this connection, we observe that defendant Lindsey filed an exception of no cause of action to the demands of plaintiff, however, the record reflects no ruling on this exception.