text:
    MIDDLETON v. H. M. STEVENS LUMBER CO. et al.
    No. 3252.
    Court of Appeal of Louisiana First Circuit.
    May 15, 1950.

      John P. Godfrey, Many, for appellant.
    Jackson & Mayer, Shreveport, Moss & Graham, Lake Charles, Jack L. Simms, Leesville, for appellees.
   ELLIS, Judge.

Plaintiff in this case has instituted suit against the H. M. Stevens Lumber Company, a commercial partnership composed of H. M. Stevens and Julian Stevens, residents of Vernon Parish, Louisiana, and Employers • Mutual Liability Insurance Company of Wisconsin, for workmen’s compensation for permanent and total disability. H.e is claiming the sum of Twenty ($20.00) Dollars per week for the period of his disability beginning September 2, 1947, not to exceed four hundred weeks, together with medical and hospital expenses.

The plaintiff was working under a contract for the defendant partnership, who carried a policy of insurance with the last above-named defendant, and alleged that on or about the 2nd day of September, 1947, while loading or rebinding a load of lumber preparatory to hauling, that the load split or parted and fell upon him, severely injuring him, and injured his left leg, back and chest and other injuries. He is alleging permanent and total disability by reason of the injury to the left leg as a result of this accident.

The defendants deny most of the allegations of the plaintiff’s petition and deny that he is permanently disabled at this time; specifically denying .that the defendant was an employee of the H. M. Stevens Lumber Company, but was, in fact, an independent contractor.

The defendants also allege in the alternative that if plaintiff was not found to be an independent contractor, that he was an employee of the partnership of Lambert and Reese, a partnership composed of LeRoy Lambert and John H. Reese and domiciled in Vernon Parish, Louisiana.

The defendants also affirmatively allege in their answer that under the terms and provisions of the Workmen’s ' Compensation Act of Louisiana, and particularly the provisions of Section 6 of said Act, Act No. 20 of 1914, as amended by Act No. 85 of 1926, that LeRoy Lambert and John H. Reese and their compensation insurer, Globe Indemnity Company, be called as codefendants herein to indemnify the defendants if there should be any judgment in favor of the plaintiff.

Exceptions were filed to this call in indemnity and disposed of and are no longer an issue.

The Lower Court rendered judgment in favor of the plaintiff and against the H. M. Stevens Lumber Company and its insurer in the full sum of $20.00 per week for the period of, plaintiff’s disability, beginning September 2,. 1947 and ending December 31, 1947 with 5% per annum interest on each installment from date due .until paid apd all ,costs of this suit, together with the sum of $130.00 as representing the bill of Dr. Talbert, and reserving to the plaintiff the right to sue for ad ■ ditional medical or hospital expenses that might have been incurred in treating plaintiff’s injury, and further fixing the fees, of the doctors who testified as expert witnesses in the case at the sum ,of $25.00 and taxing same as costs. There was further judgment dismissing the call in indemnity as to LeRoy Lambert and John H. Reese or the partnership composed of them, and as to their insurer, the Globe Indemnity Company.

From this judgment both plaintiff and defendants have appealed.

There is no dispute that the accident to the plaintiff actually did happen as alleged in his petition or that if plaintiff were entitled to recover as prayed for the amount of compensation would he $20.00 per week during the period of disability.

There are three questions before this Court to he decided:

1. Was the plaintiff an employee of the Stevens Lumber Company at the time he was injured or an independent contractor?

2. What is the extent of his disability and to what extent is he entitled to compensation ?

3. Are the defendants, H. M. Stevens Lumber Company, and their insurer entitled to judgment on their call in indemnity against Lambert & Reese and their insurer, Globe Indemnity Company, in the event judgment is rendered in favor of the plaintiff?

Plaintiff was engaged by Stevens Lumber Company to haul lumber from its mill for so much per thousand for a long haul, and a lesser amount per thousand for a short haul, and was also furnished labor at the lumber company’s expense to assist in the loading of heavy lumber and the loading of lumber into railroad cars when it was to be shipped. The plaintiff was to furnish his truck, pay for his own gas, oil and other expenses incidental to the hauling. As the lumber company decided that the plaintiff’s truck could not keep up with the hauling of the lumber, it engaged Reese & Lambert who received the same remuneration and hauled under the same terms as the plaintiff, however, the plaintiff was carried on the payroll of the lumber company and insurance, etc., was deducted from the hauling checks, and ail monies for hauling were paid to him, and under a separate agreement with Reese and Lambert the oil and gas expenses were deducted and the three divided the bill. This agreement was made between the three dumber haulers because some of their hauls were long and some short and they thought it fairer to handle the hauling in this manner, which was immaterial to the company.

It may be fairly, concluded from the testimony in this case that the Stevens Lumber Company pointed out the kind and character of the lumber to be hauled and directed the place of delivery and the person to whom the lumber was to be delivered or whether it was to be loaded in railroad cars, and it clearly had the right to fire or terminate the employment of the plaintiff or Reese and Lambert at any time. The Stevens Lumber Company had the right to control and supervise the hauling and the absolute right to say when and what lumber should be hauled.

Under the facts in this case, the plaintiff was an employee of the lumber company and not an independent contractor. See Litton v. Natchitoches Oil Co., La. App., 195 So. 638, and cases therein cited.

There was some dispute as to whether or not a new arrangement had been made immediately prior to the date of the accident between the lumber company and the lumber haulers but from the evidence we are of the opinion that the new arrangement had not been made with, nor communicated to, the plaintiff so as to change his relationship. The lumber company did discuss a new arrangement with Reese and Lambert just prior to the accident and as to them, possibly it was in effect. The only difference in the arrangement was that the lumber company was no longer to furnish any help in loading or unloading the lumber and they were to carry their own compensation insurance and were to be paid a slight increase per thousand feet of lumber for the hauling. Even this did not change the relationship of employer-employee as no particular lumber or stack or the entire output of the mill was agreed upon to be hauled. In fact, the lumber company still retained the right to control the manner, method and place and the kind of lumber that was to be hauled, and could have fired Reese or Lambert at any time. We are, therefore, of the opinion that they are not entitled to call Reese or Lambert or their alleged insurer in indemnity.

As to the extent of plaintiff’s disability, the lower court found that he had entirely recovered as of December 31, 1947. In this finding, the lower court accepted the testimony of Dr. Joe E. Broyles and Dr. M. W. Talbert in whom the Court expressed great, confidence in its written reasons. Plaintiff is complaining of the injury to his left leg which was lacerated and mashed at the time of the accident and was left with a scar about four inches above and at the inner side of the left knee, the tissue below the scar being depressed for approximately seven inches. The plaintiff testified that due to the weakness in that leg he can no longer operate a lumber truck or load and unload lumber.

Dr. Talbert treated the plaintiff from the time of his injury until December 31, 1947 when he considered the plaintiff to be fully recovered.

Dr. Joe E. Broyles, witness for the defendants, examined him on October 5, 1948, and testified that there was a very small difference in the measurement of the right and left legs; that the plaintiff’s reflexes were normal and that X-rays showed no injury to any of the bones of the leg; that he did find atrophy of the quad-racepe group of muscles on the left side, probably resulting from myositis. On cross-examination he was asked whether the plaintiff, in connection with his lumber hauling and truck driving operations, could perform strenuous, manual labor of loading and unloading lumber off of a truck for as much as eight or ten hours per day, and he answered: “He could do it for a certain period of time. With what he has, atrophy of that group of muscles, he would become tired. I could not see how he could have pain from it.” He estimated plaintiff’s disability at not more than 10%.

Dr. Thomas S. Whitecloud, who testified on behalf of the plaintiff, having examined him on November 2, 1948, testified that he found quite a bit of weakness in the left leg and a difference in the size of the leg as compared with the right, and the left leg seemed to be quite a bit weaker than the right in its ability to adduct, that is, to be pulled hack to the midline after being placed laterally. He also found a difference in the feeling of the skin below the site of the injury which was due to some injury to the cutaneous nerve. He testified that there was a muscular atrophy immediately below the area of the scar which he stated, in effect, was usually due to lack of exercise or continued lack of use. There was more than normal difference in the size of the right and left legs. This doctor further stated that the depressed area indicated either one or two things: either the scar tissue was binding the skin down, or there was atrophy of the normal tissue at that point, and his diagnosis was an injury to the cutaneous nerve supply of the medial portion of the lower left leg and atrophy of the muscles below the scar. He concluded that due to the weakness in this leg plaintiff was unable to efficiently and safely perform the duties of driving a heavy truck or loading and unloading lumber. He estimated the percentage of disability roughly at 25%, which he believed to be permanent.

Plaintiff, in his testimony, states that he attempted to work but could not last and cites different occasions. He could have easily proven this by some of his employees or co-employees. Dr. Reid treated plaintiff before Dr. Whitecloud and he could have taken Dr. Reid’s testimony in the matter. Also, plaintiff reserved the right at the close of the trial to take the testimony of Dr. T. M. Oxford of Shreveport. This he never did.

Taking all of the testimony, there is some atrophy to the muscles as the result of the injury and some injury to the nerve of the skin which affects the sense of feeling in that region and would have no effect on the ability of the plaintiff to work. It really leaves for decision the effect of the atrophy of the muscle.

There is some evidence that probably there is a nerve injury causing the atrophy, however, there is not sufficient evidence in the record to justify a definite conclusion that such exists. We cannot decide a case on probabilities.

The judge of the lower court bases his judgment on the fact that the plaintiff has failed to bear the burden of proof showing total and permanent disability. We believe the judgment to be correct under the evidence in the case and it is accordingly affirmed.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    MONTET v. JOHNSON.
    No. 19494.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.
    Carroll Montet, in pro. per.
    Eugene Stanley, New Orleans, attorney for defendant and appellee.
   JANVIER, Judge.

This is a suit on a promissory note which the defendant denies having executed. It is alleged that the note was executed by several other persons along with defendant but she alone is made defendant.

The plaintiff is an attorney at law. The defendant is an illiterate, aged colored woman. A dispute arose among the members of the religious congregation to which defendant belongs concerning the election of a pastor, and defendant and other members who agreed with her, -thought it advisable to engage an attorney to prevent the antagonistic group from carrying out its program. Defendant was ill at home and a meeting was called there for the purpose of having plaintiff advise them so that they might take such legal action as might be agreed upon. It is possible that there were two conferences but whether one of two were held is of no importance.

Plaintiff presented to those members of the congregation who desired court action a petition for their signatures or marks and for their verification. It was at one of these conferences at the home of the defendant, Mary Johnson, that, according to plaintiff, the note sued on was executed.

Of those who are said by plaintiff to have executed the note, seven are said to have affixed their signatures and four are said to have executed the document by touching the pen when their marks were made. Defendant is said by plaintiff to have been among those who executed the document by making their marks. Defendant says that at no time did she make her mark nor touch the pen, nor do' anything else that could be construed as executing the note sued on. She says that she was not told one word about the execution of the note, nor about the fact that she was making herself liable for anything.

With the exception of plaintiff himself, every other person who testified, and there were six-all present when the note is said to have been executed-all, with absolute certainty, denied that they had ever been told that they were executing a note.

The note itself is in most peculiar form. It is printed on a small slip of paper and is pasted at the top of a large piece of paper on which most of the names and marks appear.

Counsel for defendant, without mincing words, charged that the entire transaction was a fraud and that plaintiff had never told the various persons concerned that they were executing a note and had prevailed upon them to sign the blank sheet of paper in the belief that they were signing the petition or were verifying it.

Counsel for defendant also charged plaintiff with being “a very avaricious practitioner.” Plaintiff admitted that he was and is “constantly” suing his clients. Counsel for defendant listed eleven suits in which plaintiff had sued his clients and plaintiff corrected him by calling attention to one more which had been omitted by counsel for defendant. At the oral argument plaintiff said that since this suit was filed he had filed three more suits for fees.

We are convinced that the record shows, beyond any possible doubt, .that the note, if it can be said to be a note, was obtained from the defendant and the others without any knowledge on their part that they were executing a note. The judge of the lower court so found and the record abundantly justifies such conclusion.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: McBRIDE, Judge.

text:
    KIEFFER v. LARRY & KATZ et al.
    No. 19483.
    Court of Appeal of Louisiana. Orleans.
    May 15, 1950.
    Joseph Rosenberg, New Orleans, for plaintiff and appellee.
    Gravel & Downs, Alexandria, and Louis B. Porterie, New Orleans, for defendants and appellants.
   McBRIDE, Judge.

This appeal, taken by defendants, involves a claim for damages by plaintiff. The trial judge gave written reasons for judgment, which, we find, painstakingly state the facts of the case, and comprehensively cover all of the issues raised by the parties. We, therefore, adopt the below quoted portion of the reasons for judgment as the opinion of this court.

“Plaintiff, George Kieffer, brings this suit against Lawrence J. Reynolds, as sole owner and proprietor of Larry & Katz, and against Reynolds’ insurer, The Coal Operators Casualty Company, for damages in the sum of $10,417.00 for burns which he allegedly received as a result of slipping on the floor of the toilet located in the rear of Larry & Katz, liquor store and bar room in this city.

“Plaintiff claims in his petition that the floor of the toilet was slippery and slimy, and that he fell upon entering the toilet, into a pool of caustic substance which was on the floor. He claims to have received superficial burns of the face, severe burns of the outer aspect of the right leg, right buttock and right knee, and that as a result of the particular injuries he sustained much pain and suffering and discomfort, and was confined to his bed from January 10, 1949, through February 1, 1949, and that at the time of the filing of this suit he was still under medical treatment.

“Defendant by way of answer files a general denial to the petition of plaintiff, and in the alternative there is a plea of contributory negligence setting forth that plaintiff was intoxicated to such an extent as to be unable to maintain his equilibrium; that he had lost all reasonable control of his mental faculties; that he failed to take ordinary and reasonable precautions against slipping and falling or stumbling; and that he failed to minimize his injuries by cleaning himself after falling down in' a public toilet, which failure to clean himself off aggravated the injury, if any.

“The testimony of plaintiff is to the effect that he was employed by the United States Treasury Department in the day time, and that he was a musician by night; that he played in the orchestra aboard the Steamer President, an excursion boat operating on the Mississippi River, out of New Orleans; that in the early morning hours of January 9, 1949, after working on the Steamer President, he had gone to an establishment known as Nelson & Lee’s, on Poydras Street; that he had a sandwich there and some four or five draft beers; that later Mr. and Mrs. Bolman came in (Mr. Bolman being a fellow musician) and the party proceeded in their separate cars to the establishment of Larry & Katz, arriving there at approximately 2:15 or 2:30 a. m. There the plaintiff had one or two beers and then proceeded to the toilet in the rear of the premises. Upon leaving the toilet he slipped and fell on the floor, which was wet. His band uniform which he had on at the time got wet as a result of his fall. He then returned to the bar and rejoined Mr. and Mrs. Bolman and Mr. Bolman then proceeded to the toilet. While Mr. Bolman was absent, plaintiff remarked to Mrs. Bolman that he had fallen down in the toilet and that his uniform trousers had gotten wet as a result of his fall. Plaintiff and Mr. and Mrs. Bolman continued to drink at the bar, plaintiff drinking three or four “Boiler-makers” (Bourbon whiskey with beer chaser) in all, and Mr. and Mrs. Bolman having Bourbon highballs.

“Mr. and Mrs. Bolman took the plaintiff home in their truck, plaintiff leaving his automobile parked in the vicinity of Larry & Katz’. The obvious reason for plaintiff’s being taken home by Mr. and Mrs. Bolman was that at the time the party left, about 3:30 a. m., plaintiff was in no condition, from the standpoint of sobriety, to drive his car home. Plaintiff admitted he was drunk when he left the establishment.

"Plaintiff arrived at his home some time around 4:00 a. m. His father and mother were awake at the time, and they testified that plaintiff undressed and went to bed unassisted. He awoke about 6:00 a. m. and took a bath. Upon arriving at his home he told his mother he had slipped in the toilet of Larry & Katz, and that his trousers were wet. She hung them on the rear porch to dry. When Mrs. Kieffer, plaintiff’s mother, went to the porch the next morning toi brush the trousers, they disintegrated as she brushed them. This was some time between daylight and 8:00 a. m.

“Mr. Kieffer noticed that his son was red all over and thought somebody had beaten him up, using the expression from the witness stand, ‘I thought someone had passed the post on him.’ This was explained to mean that somebody had struck him without warning.

“Mrs. Kieffer called Mr. Reynolds’ establishment about 9:00 a. m. the morning of Sunday, January 9, 1949, in an attempt to inquire what substance may have been upon the floor of the toilet where her son had slipped and fallen, because she wanted to know what sort of treatment to administer to him at the time. The proprietor, Lawrence Reynolds, wasn’t there at the time and she left her number for him to call back. Later in the day she had a conversation with Mr. Reynolds and she contends that she was told that the brewery from whom he obtained his draft beer supplied a caustic which was used to clean and sanitize the floor of the toilet of the establishment.

“Mr. Kieffer visited the establishment of Larry & Katz once or twice that day for the purpose of finding out who may have beaten his son, and on the second occasion he brought with him the uniform his son had been wearing. At the time Mr. Kieffer saw Mr. Reynolds, Mr. Reynolds agreed to buy the plaintiff a new uniform. He, Mr. Reynolds, explained from the witness stand that this was merely a gesture of good will, regardless of whether or not the accident had happened on his premises.

“Defendant and his employees all denied that any caustic substance was ever used in the establishment for the purpose of cleaning or deodorizing the toilet. They contend that the only substance used to clean the toilet was ordinary washing powder bought from a grocery store in the neighborhood; that they used Grandma Powder, Soproco, a water softener, and similar preparations. The bar tender on duty at night, and his assistant, testified that they generally hose down the bar room first and the toilet last, after the customers leave, and that on the particular morning of the accident, as the plaintiff and Mr. and Mrs. Bolman remained in the establishment until after 3:30 a. m., the toilet was cleaned at about 6:00 a. m. Mr. Reynolds, on his return from ear-ly morning Mass, inquired why the place had not been cleaned, and he was told by the bar tenders that the last party, Mr. and Mrs. Bolman and the plaintiff, had left late.

The bar tender testified they proceeded to wash down the bar room and then the toilet after daylight, 6:00 a. m., and the record shows it was a foggy night. Defendant contends that the floor of the toilet was dry, even though it was a makeshift structure in the back yard, set off from a patio, and that there was a doorway but no door. None of defendant’s witnesses testified as to the condition of the toilet prior to the accident on this particular morning, that is as to whether the floor was wet or dry. One of the bar tenders did testify, however, that plaintiff’s clothes were in good condition so far as he was able to observe when plaintiff entered the establishment, but that he did not observe their condition at the time plaintiff left.

“One of defendant’s employees testified that the toilet floor was dry at 6:00 a. m. when they went out to clean it.

“Regardless of the testimony of the bar tenders anü of the defendant, Mr. Reynolds, to the effect that no caustic substance was ever used to clean the toilet room floor, nor that any was ever purchased except for a small can of lye used in an attempt to unstop a sink in the bar proper, this court believes that the conclusion is inescapable that the plaintiff fell in the toilet on the premises of Larry & Katz, into some acid or caustic substance on the floor.

“On his way home, defendant sat between Mr. and Mrs. Bolman, and whatever substance was on his clothes rubbed against and came in contact with the clothes of Mr. and Mrs. Bolman, causing white spots to appear on their clothes. Plaintiff’s shoes are in evidence and they are slightly discolored also.

"The court finds significant the testimony of one of the defendant’s witnesses that the plaintiff was sitting at the bar with his face resting upon his hand, and the fact that he suffered superficial burns of his face. He must have attempted to break his fall with his hands and his hands must have come in contact with the same substance that was on his clothes.

“Defendant cites the case of Lawson et al. v. D. H. Holmes Co., Ltd., La.App., 1941, 200 So. 163, where the court stated that Mrs. Lawson knew it was raining and that she is to be charged with knowledge of the fact that one is apt to slip on a wet surface, the defect being an apparent one; that there must be fault on the part of the store-keeper and ignorance of danger on the part of the customer.

“Defendant also cites the case of Farrow v. John R. Thompson [Co., 18 La.App. 404, 135 So. 80], 137 So. 604; The facts of this case are briefly that the plaintiff slipped on the floor of the defendant’s restaurant, which has been freshly mopped. The testimony of defendant was that there was nothing on the floor at the time of the plaintiff’s fall except some water which had fallen from a cup of hot water. One of the witnesses in that case, however, testified that the plaintiff had on high heels and that a lady of her weight would be safer on lower heels.

“Defendant also cites the case of Hendricks v. Maison Blanche Co., 5 La.App. 410, to the effect that a customer to recover from the owner of a store for an apparent defect in a building must show (his) own ignorance of the danger.

“The defendant also cites the case of Burdeaux v. Montgomery Ward [& Co., La.App.], 192 So. 728, 731, where a customer using the rest room facilities in a store entered a booth which had a raised floor and a swinging door which struck the customer on making her exit, causing her to fall and sustain injury. The court said in effect that the fact that the accident happened on the customer’s first visit to the store will not excuse her from not guarding against the effect of the door’s reaction, or not bearing in mind the presence of the step-off in the floor. This case held: ‘In the present case, as before touched upon, plaintiff made her way safely into the toilet without mishap. She was in as good, if not better position to leave it than when entering it.’

“Plaintiff testified that he fell in the toilet on defendant’s premises, and this testimony has not been refuted by the defendant. ■ Defendant simply says that he used no caustic fluids or acids on the floor of the toilet. The uniform that the plaintiff was wearing on the night of the accident has been filed in evidence. The rear of the right trouser leg of the pants of the uniform has disintegrated from a point below the pocket to the knee, and the front of the right trouser leg from the knee practically down to the ankle. There is a white color surrounding the holes in the uniform.

“This court believes that the doctrine of res ipsa loquitur is applicable to the instant case. That doctrine does nothing but shift the burden of proof to the defendant, to exculpate himself if he can from any charge of negligence.

“This court cannot believe that a caustic substance, lye or acid, was not used by the defendant on the floor of the toilet, regardless of their testimony to the contrary. Dr. Bradburn testified that the plaintiff received burns which in his opinion were caused by a caustic fluid, lye or acid. Obviously the solution was on the floor of the toilet, and this court believes it was put there by the defendant or his employees or agents. It would require too great a stretch of the imagination to say that the solution on the toilet floor was placed there by some third party, unless it was done under defendant’s instructions and within defendant’s knowledge.

“It is true that the toilet on the premises of Larry & Katz was lighted, and if the floor was wet the plaintiff could have seen it, but he had no reason to believe that the substance on the floor was some strong chemical or caustic which would injure him in the event that he did slip and fall. He had no knowledge of the dangerous substance on the floor, which caused his injuries. The testimony of the defendant and his witnesses, as well as that of plaintiff and his witnesses fails to bear out the allegation of the defendant that at the time plaintiff went to the toilet he was intoxicated.

“The record does not show that plaintiff had any reason to believe, even after he fell, that he would be burned at all, much less as severely as he was, by having come into- contact with some substance that undoubtedly was on the floor. Therefore plaintiff had no reason to take off his clothes or to take a bath before such time as he was apprised of the fact, from the burning of the chemical or caustic which came into contact with his skin due to his clothes’ being wet.

“Plaintiff got home at four o’clock; he bathed at six o’clock. His mother, Mrs. Kieffer, testified she began to apply epsom salts to the burns and called Dr. Brad-burn the following day, which was Monday. This accident happened early Sunday morning.

“Dr. W. P. Bradburn testified that the plaintiff had superficial burns of the face, more severe burns of the right leg, right knee and right buttock. The burn of the right buttock was a second degree burn. Dr. Bradburn first treated the plaintiff on January 10, 1949, and the last occasion upon which he was seen by Dr. Bradburn was June 1, 1949, for a check-up. The doctor prescribed baths and local applications. He stated that the elasticity had returned to plaintiff’s leg and knee on the day of the trial, Nov. 28, 1949.

“Dr. Bradburn testified that the plaintiff had suffered from burns from some type of fluid which was most probably caustic; that the plaintiff suffered intense pain and was given codeine from January 10 until February S, and probably one or two tablets thereafter. The doctor further testified that the burn on plaintiff’s right cheek of his buttock was about 2y2 by 2 inches, and that this was a deep second degree burn. Plaintiff also suffered a first degree burn of his right leg, extending from the junction of the middle and lower third of the outer portion of the leg to the knee, and from_ the midline at least two-thirds back to the outer circumference. He has a scar one inch by one inch, elliptical in shape, upon his knee. The burn on the left side of plaintiff’s face cleared up very rapidly.

“The doctor testified that for the first one or two or three weeks the pain was severe, and that plaintiff had pain even after he was out of bed; that the outer portion of the plaintiff’s leg was burned badly and that he prescribed baths twice a day, which was very painful; that plaintiff has no permanent disability, but the scars are permanent and will be with him for all time; that the skin still stretches on his buttock but this condition will clear up as the elasticity returns and the scar minimizes.

“There is no testimony in the record as to the plaintiff’s age, but the court judges him to be a man of about thirty years of age.

“Apparently plaintiff suffered severe and intense pain both day and night during the period of time he was confined to his bed. (Approximately eighteen days according to his own testimony.) He was unable to work at his job as a musician for three weeks, and if this was the duration of his inability to work as a musician it must be assumed that it was the duration of his inability to perform his duties on his day time job with the United States Government, Treasury Department. Dr. Brad-burn testified that he treated plaintiff while he was at home and saw him several times thereafter, one of the last times being May 6, 1949; that he saw him on June 1, 1949, for a check-up. * * * ”

Plaintiff was awarded a judgment of $3,500.00 for his physical injuries, plus loss of wages in the sum of $279.00, medical bills, $88.00, and loss of his uniform, $50.00, or a total of $3917.00.

In Horrell v. Gulf & Valley Cotton Oil Co., Inc., 16 La.App. 91, 133 So. 392, the plaintiff was allowed $3,000.00 for bums resulting from steam and caustic soda, his injuries being to the face, eyelids, eyes, and from one-fourth to one-third of the entire skin area of the body involving hands, arms, face, back, buttocks, and thighs. The plaintiff there was hospitalized for eleven days, was temporarily blind for three days, and, at the time of the trial, seventeen months after the accident, was still under treatment by an oculist.

In Schultz et ux. v. Kinabrow et al., La.App., 177 So. 450, the sum of $1,000.00 was allowed for injuries sustained by a three year old child from lye burns about the right eye, the child suffering third degree burns of a portion of the right cheek, first degree burns of the comea and conjunctiva of the right eye, and second degree burns of tbe eyelids of the right eye, with gluing of the lids.

In Cornell et ux. v. United States Fidelity & Guaranty Co. et al., La.App., 8 So.2d 364, $3,500.00 was allowed for severe burns upon a prematurely bom infant’s left shoulder, left flank of the body, and on the front and back of the left arm, as a result of contact with excessively heated water bottles.

It is a well-established principle that there is no rule or standard for fixing damages for personal injuries, and much discretion is left to the court. In the instant case, however, we believe that the award of $3,500.00 allowed plaintiff for his physical injuries is somewhat excessive, and that an award of $2,500.00 for that item of damage would do adequate and substantial justice.

It is ordered, adjudged, and decreed that the judgment appealed from be reduced to the sum of $2,917.00, and as thus amended, and in all other respects, the judgment is affirmed; defendants-appellants to pay ■costs of this court.

Amended and affirmed.


author: REGAN, Judge.

text:
    THOMAS v. G. H. A. THOMAS CO.
    No. 19465.
    Court of Appeal of Louisiana. Orleans.
    May 15, 1950.

      Delvaille H. Theard, New Orleans, for mover in rule and appellant.
    Baldwin, Haspel & Molony, New Orleans, for defendant and appellee.
   REGAN, Judge.

Plaintiff, Warren Realty Company, Inc. filed a motion in the receivership proceeding of defendant, G. H. A. Thomas Company, offering to purchase certain real estate for the sum of $200, subject to any taxes and paving liens bearing against the property, and requested that the receiver of the defendant company show cause on a certain day why plaintiff’s offer “should not be notified to all parties in interest, as provided by Act 43 of 1924”. Defendant answered and excepted on the ground “that the rule” disclosed “no right or cause of action”.

From a judgment in favor of defendant, Receivership of G. H. A. Thomas Company, maintaining the exceptions of no right or cause of action and dismissing the rule, plaintiff prosecutes this appeal.

The record reveals that the G. H. A. Thomas Company was placed in receivership on July 14, 1932.

The inventory taken in these proceedings on September 1, 1932, includes two lots, designated as lots Nos. 3 and 4 in Square 71, Gentilly Gardens, and they were appraised for the sum of $200.

On October 7, 1932, the defendant requested that the Court order these lots sold by an auctioneer at public auction. The lots in question were duly offered at auc-tion on November 17, 1932, however, the auctioneer reported on November 21, 1932, that he “did not receive any bid at all for this property and consequently withdrew same for want of a bid”.

On January 27, 1933, the receiver of G. H. A. Thomas Company, requested that the court authorize him to abandon these “lots of ground for the paving privileges and unpaid taxes existing against the same”. The court authorized-the abandonment of this property on February 8, 1933.

On November 10, 1949, the plaintiff filed a motion suggesting to the court that the defendant still owned the lots, which had never been abandoned or transferred to anyone; that plaintiff was willing to pay the sum of $200 cash for a quitclaim, “said quitclaim ,to be without any warranty whatsoever even as to the. return of the said purchase price, and said quitclaim •to be made subject to any taxes or tax sales and to any paving bearing against said property”.

The defendant answered by way of an exception of no cause of action.

.The court, a qua, maintained defendant’s exception and dismissed plaintiff’s rule, hence this appeal by plaintiff.

On April 21, 1950, the following motion was filed in this court: “On motion of G. H. A. Thomas Company, defendant and 'appellee herein, through its attorneys of record, Baldwin, Haspel & Molony, and on suggesting to this Honorable Court that the appeal taken herein by Warren Realty Co., Inc., is based upon a question which has now become moot inasmuch as the real estate which is the basis of the litigation has been sold by G. H. A. Thomas Company to Athur M. Schneider, Sr., by act before Emile A. Wagner, Jr., dated March 29, 1950, registered C.O.B. 569, folio 229; and on further suggesting to the Court that mover is desirous for that reason to have this appeal dismissed; * *

A casual reading of the title and body of this motion will indicate the obvious fact that it was not filed on behalf of the proper party defendant — the appel-lee before us on appeal — which is the Receivership of G. H. A. Thomas Company of Louisiana, but was filed on behalf of G. H. A. Thomas Company, — not a defendant-appellee before this court. Consequently for these reasons, we are of the opinion, that we cannot properly consider this motion to dismiss plaintiff’s appeal.

Considering the matter now before us, plaintiff contends that inasmuch as it was interested in purchasing the property it was, in conformity with the provisions of Act 159 of 1898, Dart’s Statutes Section 1218, a “party in interest” and therefore “had the right to come into Court and move that these two lots be put up for sale” and ultimately sold in conformity with the provisions of Act 43 of 1924, Dart’s Statutes Section 1223 et seq.

Defendant, on the other hand, maintains that the ruling of the judge, a qua, in sustaining defendant’s “exceptions of no right or cause of action” and dismissing the rule filed by plaintiff herein was correct and, therefore, should be affirmed by this Court.

Plaintiff, in support of its contention, firstly relies on the provisions of Act 159 of 1898, Section 10, Dart’s Statutes 1218, which read as follows: “Where the court has appointed a receiver and it is made to appear that there is no reasonable ground to believe that the property of the corporation can be so administered as to pay its debts, and the possession thereof restored to the corporation, the court may on application of any party at interest, after ten days’ notice of such application on the order book, if there be no opposition, or after hearing of same be opposed, order the sale of the property and the distribution of its assets in accordance with the rights of the parties in interest.”

It will be recalled that plaintiff contends that it is a “party in interest” in conformity with this section of the act of 159 of 1898, however, the section relied on by plaintiff further provides that "the court may on application of cmy party at interest, after ten days’ notice of such application on the (receiver’s) order book, if there be no opposition, or after hearing of same be opposed, order the sale of the property and the distribution of its assets in accordance with the rights of the parties in interest.”

The record is completely devoid of any evidence to the effect that plaintiff gave “ten days’ notice” of its application on the receiver’s order book, as a “party at interest” and therefore section 1218 of Dart’s Statutes makes the position assumed by plaintiff untenable.

Plaintiff further contends “that the sale (of the lots) be made under Act 43 of 1924”, Dart’s Statutes 1223 et seq., which reads as follows: “Whenever a Receiver or Receivers or Judicial Liquidators shall have been appointed to a corporation or qualified under a decree of a Court of this State; and it shall appear to the Receiver or Receivers or Judicial Liquidators that it is to the advantage of said Corporation that either a part or the whole of its assets be sold at private sale, the Receiver or Receivers or Judicial Liquidators may file in the Court having jurisdiction over the Receivership, or Judicial Liquidation a petition setting forth any special proposition previously made for the purchase at private sale of the said property; or a petition setting forth such a proposition as should be invited and accepted for the disposal of the property at private sale, and in the event there should be more than one Receiver, or Judicial Liquidator some of whom should not join in the application, then they shall be made defendants in the Rule hereinafter provided for and shall be summoned accordingly.”

It will be observed from the language used in this section of the act, that it expressly, and in no uncertain or ambiguous terms, authorizes the receiver or judicial liquidator, and no one else, to petition the court for the private sale of property when he (the receiver or judicial liquidator) believes it to be to the advantage of the corporation. It is, therefore, clear that it does not authorize the filing of a petition (or motion), in the court having jurisdiction over the receivership, for the private sale of the property, by any person, other than the receiver, or judicial liquidator.

It will be further noted that the plaintiff herein is not “an interested party” in the receivership proceedings by virtue of being a “stockholder or a creditor of the corporation.”

Consequently, sections 1218 and 1223 et seq. of Dart’s statutes, cited and relied upon by plaintiff in support of its respective contentions are of no avail and, .therefore, For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: PER CURIAM.

text:
    Succession of Mrs. Anna VALDEZ, widow by first marriage of Bernard J. Bremerman, Sr., and widow by second marriage of Charles Bianchi. Succession of Charles BIANCHI.
    Nos. 19353, 19354.
    Court of Appeal of Louisiana. Orleans.
    May 29, 1950.
    For former opinions, see 44 So.2d 151, and 215 La. 791, 41 So.2d 682.
    Connolly & Simoneaux, New Orleans, for Mrs. Alvina B. Bright and Bernard J. Bremerman, Jr., plaintiffs and appellants.
    Prowell & Viosca, and Arthur C. Reuter, New Orleans, for Mrs. Palmyre Bianchi Furlong and Charles Bianchi, defendants and appellees.
   PER CURIAM.

On joint petition of all parties, it is ordered that a rehearing he granted in this matter for the purpose of transferring it to the Civil District Court for the Parish of Orleans, in order that that Court may consider a compromise agreement which has been entered into between the parties, and, on the rehearing, it is ordered that the matter be and it is remanded to the Civil District Cottrt for the Parish of Orleans, for appropriate action by that Court.

Rehearing granted. Case remanded.


author: DORE, Judge.

text:
    H. & G. FURNITURE CO. et al. v. DUHON et al.
    No. 3254.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.

      Nicholls Pugh, Jr., Lafayette, for appellant.
    Davidson & Meaux, Lafayette, for ap-pellee.
   DORE, Judge.

This is a suit for damages growing out of an intersectional collision. The collision occurred at the intersection of Eastern Avenue and Eighth Street within the city limits of the City of Crowley, Louisiana, when a truck belonging to H. & G. Furniture Company, being driven by one of its employees, Rodney J. Henry, while acting within the course and scope of his employment, was proceeding in a northerly direction on Eastern Avenue and the defendant Howard Duhon was driving his automobile in a westerly direction on Eighth Street. The plaintiff, Calvert Fire Insurance Company, is the collision insurer of the truck belonging to H. & G. Furniture Company, and the defendant, The National Automobile and Casualty Insurance Company, is the public liability and property damage insurer of the automobile owned by the defendant, Duhon.

The plaintiffs allege that the collision was caused solely by the negligence of defendant, Duhon, in traveling at an excessive rate of speed without maintaining a proper lookout and failing to stop at the intersection of Eastern Avenue and Eighth Street, and in utter disregard of a traffic sign warning defendant to stop, after plaintiff’s vehicle had pre-empted the intersection.

The defendants, on the other hand, allege that the defendant, Duhon, was not guilty ■of any negligence and that the cause of the accident is attributable to the sole negligence of the driver of the plaintiff’s truck, and in the alternative, if found to be negligent, the driver of the plaintiffs truck was guilty of contributory negligence in that he was driving at an unreasonable rate of speed; in failing to give any warning whatsoever of his approach at the intersection, in failing to keep a proper lookout, in failing to recognize the right-of-way of defendant’s automobile which had preempted the intersection and was approaching from the right of plaintiff’s truck, and in failing to have the truck under proper control so that he could avoid turning into the automobile of Howard Duhon which had come to a complete stop.

On the morning of the trial, defendants filed an Exception of Minority, on behalf of the defendant, Howard Duhon, after which plaintiff dismissed the suit in so far as Howard Duhon was concerned.

After the trial on the merits, the lower court rendered judgment in favor of defendant rejecting the demands of plaintiff which were in the sum of $589.95. From this judgment, plaintiffs have appealed seeking a reversal thereof.

It is submitted by plaintiffs that the lower court erred in failing to find that the plaintiff’s vehicle enjoyed a right-of-way by virtue of Ordinance No. 676 of the City of Crowley, Louisiana, or because of thé fact that the plaintiff’s vehicle had pre-empted the intersection.

The lower court in its reasons for judgment, stated that it did not feel compelled to determine which street had the right-of-way, but found that the driver of plaintiff’s truck was guilty of contributory negligence in that he was driving at an unreasonable speed, and in that there was a hedge approximately ten feet high obstructing his view of Eighth Street, which hazard he failed to observe, and further, that on entering the intersection and seeing the defendant’s vehicle, he not only did not apply his brakes, but speeded up his truck and swerved to the left.

Ordinance 676 of the City of Crowley, reads as follows: “That Parkerson Avenue, Eastern Avenue, Avenue F on the south side of First Street to the North side of Sixth Street and Avenue G from the South side of First Street to the North side of Sixth Street and all streets and avenues running East and West in the City of Crowley, Louisiana, are hereby designated as right-of-way streets and avenues.”

The contention of the defense was that the ordinance was confusing in so far as it applied to the intersection of Eastern Avenue and Eighth Street, and that Eighth Street, which runs east and west, had the right-of-way over Eastern Avenue, and, in the alternative, in the event that Eighth Street was not the right-of-way street, then said ordinance was of no effect inasmuch as it is in conflict with Act No. 286 of 1938, Sec. 3, Rule 11.

This Court is of the opinion that the question of which street was the right-of-way street is of no importance in this particular case and shall pretermit the question. However, it shall assume that Eastern Avenue was the right-of-way street and the defendant was negligent in entering the intersection without coming to a complete stop. The only question remaining is whether or not the driver of. the plaintiff’s truck was guilty of any negligence contributing as a direct and proximate cause of the accident.

The testimony in this case is somewhat conflicting and confusing, and the Court has only the 'benefit of the testimony of the drivers of the two vehicles which were involved in the accident. The driver of plaintiff’s truck testified that he was traveling on Eastern Avenue in the City of Crowley at a speed of between twenty to twenty-five miles per hour. He stated that he was familiar with Eastern Avenue where it intersects Eighth Street, and the fact .that it was a 'blind intersection. He stated that he was driving on his right-hand side of the street and when he reached the intersection of Eastern Avenue and Eighth Street, he did not apply his brakes; that he could not see to the right on Eighth Street because there were some tall hedges obstructing his view; that after he entered the intersection, he, for the first time, saw the defendant’s automobile, which was also entering the intersection; that he speeded the truck up and swerved it to the left in an attempt to avoid the accident; that the truck was struck by the defendant’s automobile at or about the right rear wheel and fender. The truck then continued, and its left wheels struck the curb of the neutral ground, somersaulted and came to rest on its left side.

An Ordinance of the City of Crowley which was introduced in evidence provides that trucks shall not be operated at a greater speed than fifteen miles per hour. While the violation of an ordinance regulating speed might not be negligence per se, still if the violation was a contributing cause oLthe accident, the plaintiff cannot recover. The lower court found in interpreting the facts, that the driver of plaintiff’s truck was driving at a much greater speed than he testified. It is well settled that the findings of fact made by the lower court will not be disturbed unless manifestly erroneous.

In the case of Harding v. Hellman, La.App., 158 So. 595, 596, it is stated: “Under the modern practice, the findings of fact by the trial court have attained great importance because, as has been so often stated, the trial court sees the witnesses, observes their demeanor on the stand, and is in a position to determine their credibility. Consequently a finding of fact by a trial court should not be disturbed unless manifestly erroneous.”

The lower court concluded from the physical facts that the driver of the plaintiff’s truck was traveling in excess of twenty-five miles per hour. By the testimony of both drivers, it is shown that the plaintiff’s truck turned a complete end-over-end .flip, and ended up facing in the opposite direction on its left side, approximately sixty-five feet from the point of impact. In the case of Facio v. Bellone, La.App., 39 So.2d 448, 449, the Court said: “The evidence shows conclusively that as Fació approachfcd the corner his speed was not excessive but that the speed of Bellone was quite high. We say that Bellone’s speed was high because after the impact, which occurred in the intersection, his car proceeded a distance estimated as great as 30 to 35. feet, turned completely around. and then turned over. The evidence is so overwhelming on this point that we have no difficulty in concluding that Bellone did not stop and that he entered the intersection at high speed when Facio’s car had either already entered it or was * * * about to enter.”

Further, the driver of plaintiff’s truck testified that he was thoroughly familiar with the intersection, and that the presence of the hedges at the intersection where the ’collision occurred obstructed his view, and in spite of this fact, he continued into the intersection at a speed of from 20 to 25 miles per hour. It is our opinion that even though one is on a right-of-way street, if his view is obstructed at an intersection, it is his duty to drive slowly as to make certain that if another vehicle is approaching he may stop in time to avoid striking it. It is this court’s opinion, therefore, that the unreasonable speed at which the plaintiff’s truck was traveling in excess of the regulation set by city ordinance into a blind intersection was a contributing cause of the accident and bars recovery by plaintiffs.

Plaintiffs further allege that their truck pre-empted the intersection and therefore their vehicle enjoyed a right-of-way. As stated, we assumed that plaintiff’s vehicle had the right-of-way and came to the conclusion that the driver was. contribu-'torily negligent. The fact that one is further advanced into the intersection at the time of the collision does not relieve -him of being contributorily negligent. In the case of Facio v. Bellone, La.App., 39 So.2d 448, the Court said: “It is very true that we have often said that in spite of the right of way provisions of the traffic ordinance, if a vehicle without the right of way enters and preempts an intersection, its driver thus acquires the right to proceed. But in ’cases in which we discussed the question of preemption we have also said, and other courts have said, that preemption does not result solely from arriving a split second ahead of another vehicle. The driver who claims preemption must show that he entered the intersection at reasonable speed so far in advance of the other vehicle that he would not be struck by the ■ other vehicle also proceeding at proper speed. See Sheehan v. Hanson-Flotte Co., La.App., 34 So.2d 657; Pancoast v. Cooperative Cab Co., La.App., 37 So.2d 452.” See also: Culver v. Toye Bros. Yellow Cab Co., La.App., 26 So.2d 296; Driefus v. Levy, La.App., 140 So. 259; Johnson et ux. v. Fabacher et al., La.App., 175 So. 129; Dow v. Brown, La.App., 193 So. 239.

Plaintiffs also contend that after the driver of plaintiff’s truck entered the intersection he did what any other prudent man in like circumstances would do; that is, he sped up and swerved the truck to the left, and the doctrine known as the sudden emergency doctrine should be applied in plaintiff’s favor. This court finding that contributing factor to the accident was the fact that the driver of plaintiff’s truck entered a blind intersection at an unreasonable rate of speed, it is unnecessary to pass upon the reasonableness of the driver’s actions after he entered the intersection.

The defendants filed an exception of no cause or right of action in this court, based on the following reasons:

1. That the assured, Howard Duhon, is not a party to this suit, he having been dismissed from these proceedings.

2. That Act 55 of 1930 grants no right of direct action to The Calvert Fire Insurance Company; that the right of direct action is limited to an injured person or to his or her heirs; that plaintiff not being in either category has no right of action on account of the payment which is claimed to have been made.

3. That under the decision of World Fire & Marine Insurance Co. v. American Automobile Insurance Co., La.App., 42 So.2d 565, writ of certiorari denied by Supreme Court of Louisiana, Jan. 9, 1950, there is no right of action in the said plaintiff;

The court having disposed of the case on the merits, there is no need to take up the exception.

For the reasons assigned, the judgment appealed from is affirmed; all costs to be borne by plaintiff.

N. S. HOFFPAUIR, Judge ad hoc, recused.


text:
    BORDENAVE v. TEXAS & NEW ORLEANS R. CO.
    No. 19368.
    Court of Appeal of Louisiana. Orleans.
    May 15, 1950.
    William J. Guste, Leopold Stahl, John Pat Little and James M. Colomb, Jr., New Orleans, for appellant.
    Chaffe, McCall, Toler & Phillips, Nsw Orleans, for appellee.
   REGAN, Judge.

Plaintiff, Mrs. Marguerite R. Bordepave, a passenger in an automobile owned and operated at the time of the accident, by-Walter Johnson, brought this suit in the amount of $39,769.38, as damages for personal injuries sustained by plaintiff by virtue of a collision between Johnson’s automobile and one of the trains of the defendant, Texas & New Orleans Railroad Company.'

Defendant answered and denied that it was guilty of any negligence in the premises and that the “sole proximate cause of the accident” was the gross negligence of Johnson, the driver of the automobile, “in crossing the tracks in disregard of defendant’s train”, and, in the alternative, defendant pleaded contributory negligence.

Plaintiff’s suit was consolidated with that of Walter Johnson, by the Judge, a quo, and, after a trial on the merits, there was judgment in favor of defendant, dismissing the suits of plaintiff and Johnson. From that .judgment plaintiff, alone .has prosecuted this appeal.

The record reveals that the accident 'occurred on October 17, • 1946, a clear, cool, dark night, between 10:15 and 10:25 p. m., at which time plaintiff was seated in the right front seat of Johnson’s 1939 Chevrolet automobile, which was, immediately preceding the accident, being driven along the riverroad in the vicinity of Southport, toward the City of New Orleans. Their route into the City was by way of Oak Street, which, incidentally, was the same route they had followed out of the City some hours before. Plaintiff and Johnson both knew that this route necessitated the crossing, of a number of railroad tracks. These tracks, being six in number, inter-. sected Oak Street, in which plaintiff and Johnson were proceeding at an angle of about forty degrees, the obtuse angle being on the right of a motorist approaching the City; simultaneously, defendant’s yard engine, moving backward and pulling three pullman cars and a caboose, was approaching Oak Street at a speed of between twelve and fifteen miles per hour, (maximum permissible speed on this section of tracks, 25 miles per hour) on the Public Belt Railroad tracks which parallel the levee. The automobile came to a stop a short distance from the first track and thereafter proceeded slowly across the tracks intersecting Oak Street at Leake Avenue, it was then struck by defendant’s engine on the fourth track and was pushed or dragged a distance estimated from sixty to one hundred feet. The only mechanical warning device 'was a ‘Small blinker light, which intermittently flashed red with considerable rapidity, and it was located on the telephone pole near the street light and it was clearly visible to vehicular and pedestrian traffic.

Plaintiff, whose testimony was taken before a Notary Public, stated that realizing Johnson had to cross the railroad tracks, she looked for warning signs, but observed none; that the automobile was brought to a complete stop, before proceeding upon the tracks, at which time, her vision being excellent, she could see down the tracks; she looked in all directions “left and right, and-right in front of me”; she did not ebserve the defendant’s train approaching; she saw no lights from the train, nor did she listen for the approach of a train; and that her hearing was excellent, but she heard no whistle or bell emanating from defendant’s engine. Plaintiff’s version of the accident is substantially corroborated by Johnson, who maintainéd, as did plaintiff, that they were unaware of defendant’s train until after the collision had occurred.

There is evidence in the record to the effect that there are two advance warning signs placed by the Highway Department on each side of the street, well in advance of the crossing and “cross buck or cross arm railroad crossing signs nearer the tracks”, and “a small” red “blinker light located on the telephone post on the right-hand side of the crossing just in advance of the first track”; and that a motorist, who approached these tracks, coming from the Parish of Jefferson, as Johnson and the .plaintiff did on this occasion, would first observe that their view of the tracks to the right was obstructed by a building known as Bensel’s Garage, which is situated about twelve feet to the right of the road and eight' feet from the first rail of the first track, but upon reaching a point where their bumper was about six feet from the first rail of the first track, they would have an unlimited and unobstructed view to their right down the tracks which intersect Oak Street.

Defendant’s employees in command of the train on the night of the accident, substantially corroborate each other. However, there was only one person who testified that he actually saw the accident and that was defendant’s engineer, Harley G. McCall. McCall testified that the train was approaching the crossing, at Oak Street, not over fifteen miles per hour, with the engine’s headlight burning; the regular crossing whistle was blown as the engine approached the Oak Street intersection; the bell was ringing automatically and an alarm whistle was given just before the accident; that the automobile was first observed by him as it emerged from behind Bensel’s Garage and it was then about seventy-two feet away from the track upon which the engine was proceeding; at which time and until the car had traversed about one-half the distance to the tracks upon which the engine was moving, the engineer continued to assume that the car which had increased its speed, would stop before proceeding into the path of the train; defendant’s engine was approximately one hundred and ten feet from Oak Street when the automobile was first observed and about thirty feet when the engineer realized that the car would not stop, at which moment he set his alarm whistle and applied his emergency brakes; thereafter the automobile continued into the path of the train which, in turn, struck the automobile and pushed or dragged it about seventy to one hundred feet and, at this point the engine came to a complete stop.

As stated heretofore, only one person testified that he actually saw the accident and that was defendant’s engineer, McCall. The testimony of plaintiff, and of the operator of the automobile is essentially negative in character. Plaintiff stated that she never saw the train. Johnson testified to the same effect that he did not see the approaching train. Therefore, the record reflects no serious factual conflict relative, to the manner in which the collision occurred.

E. B. Wyman, employed by the Texas and Pacific Railroad Company as claim agent, testified that he was visiting the Southport Club on the night of the accident and had just emerged from the Qub when the accident occurred. He stated that the Qub was about one and one-half blocks from the crossing at Oak Street, the situs of the accident; he heard the engine whistle several times before reaching the crossing and heard it blow a series of alarm blasts, “short, quick blasts of the whistle”; he saw the engine’s headlight coming towards him or “coining towards Oak Street”, and “just after the alarm blast I heard a thud, an impact of hitting something * * * I hastened down to Oak Street” and found “the engine was in backup position”, the head end of the locomotive (rear in point of movement) on the north or left edge of Oak Street with its rear headlight (front in point of movement) burning, the street light on the right of the road burning, the red blinker light flashing and the automobile about seventy to seventy-five feet north of Oak Street with its head and taillights burning, and. that “all the windows on the car were closed. The right front windshield glass was broken, but all other windows were closed”.

Plaintiff contends that:

“1. That plaintiff, a guest passenger was free from any negligence;

“2. That defendant was negligent when its Engineer did not apply his brakes as soon as he saw the automobile;

“3. That defendant- was negligent in operating its train over this crossing without automatic signal;

“4. That defendant was negligent in that the Engineer did not approach the crossing with caution prepared to stop, as he was required to do under the safety regulations governing his operation of the train.”

In connection with the contention designated above as “3” plaintiff introduced in evidence a certified copy of Ordinance No. 14,114 CCS, City of New Orleans, which she specifically pleaded. Section 2 of that ordinance requires that “ * * * every railroad company operating within the city limits of the City of New Orleans shall, at all points where its rail or rights-of-way cross or intersect a paved street situated in said city limits provide and maintain automatic signal lights of an approved design, which shall be kept in constant operation at all times”.

In connection with the contention designated as “4” plaintiff refers us to a document labeled “Safety First, New Orleans Public Belt Railroad of the City of New Orleans, Employee’s Time Table No. 13, effective August 1, 1946”, which was introduced in evidence. One half of the document is taken up with special instructions and the first paragraph thereof sets forth the employees subject thereto, including those of the defendant. The last paragraph of the document, under the section heading “Railroad Grade Crossings” reads as follows: “All trains, yard cuts and/or engines must approach all highway and street crossings at grade with caution prepared to stop, crossing whistle sounded and bell ringing until engine passes over crossing.”

Defendant, on the other hand, maintains the following:

“1. Defendant was free from any negligence causing, contributing to or connected with the accident.

“2. The sole proximate cause of the accident was the gross negligence of the driver of the automobile in which plaintiff was riding in crossing the tracks in disregard of defendant’s train.

“3. Even if defendant was guilty of negligence proximately causing the accident, plaintiff was guilty of contributory negligence barring her recovery.”

It is obvious that the first question posed by virtue of the facts adduced and the pleadings filed herein is whether the defendant was guilty of any negligence in connection with the accident?

The evidence reveals that, as the train approached Oak Street, it was in charge of a competent crew, its braking system was functioning properly, the train was being operated at a speed of fifteen miles per hour, the headlight brilliantly illuminated the track ahead, the engine bell was ringing continuously by automatic control, and the conventional crossing whistle (consisting of two long blasts, a short blast and a long blast) was blown. Its approach to the crossing was thus both visible and audible-

Both the engineer and the fireman were in their respective seats maintaining a continuous and attentive lookout ahead. When the engine was approximately one hundred and ten feet away from the Oak Street crossing, the engineer (from whose side it approached) observed the automobile in which plaintiff was riding as it cleared Ben-sel’s Garage. The automobile being then seventy-two feet away from the track on which the train was proceeding and there being nothing unusual or alarming in the-driver’s actions — both plaintiff and the driver testified that the car was brought to a complete stop at this point — the engineer assumed that he would behave in a normal, rational manner and heed the warning signals and the locomotive itself so as-not to proceed in its path. Continuing to observe the automobile, defendant’s engineer still assumed, as he was justified in doing, that it would stop short of the track on which the train was moving — as it could have; the reasonableness of this supposition is borne out by plaintiff’s and the driver’s testimony that the automobile started very slowly, in first gear. Still continuing to observe the automobile, which had at first increased its speed while still several tracks away, then 'had slowed down again, defendant’s engineer saw the car accelerate again and, when the engine was slightly more than thirty feet from the street crossing, immediately realized that he could no longer count on its stopping; whereupon he immediately gave an alarm signal on the engine’s whistle and set the brakes in emergency, thus doing everything in his power to avert the collision which would occur if the automobile did not stop. The engine came to a stop approximately seventy to one hundred feet beyond the crossing, having covered a distance of one hundred and twenty to one hundred and fifty feet in stopping which, according to the testimony of an expert, constituted an excellent stop under the conditions. Clearly these actions of defendant’s engineer constituted the performance of everything that he could reasonably be expected to do to avert the accident.

The jurisprudence in Louisiana is to the effect that those in charge of a railroad train may presume that an individual or vehicle approaching a crossing will stop in time to avert an accident and that, consequently, there is no negligence in their failure to anticipate that this will not be done. This rule recognizes the practical fact that many pedestrians and motorists approach the nearest point at which they can stop with safety before halting to permit a train to pass; it also incorporates the practical rule that it would not be possible to operate trains on time or even on a reasonable schedule if they were required to stop or to prepare to stop each time an individual or vehicle was seen to approach a crossing.

Recently, in Matthews v. New Orleans Terminal Co., La.App., 45 So.2d 547, 553, wherein the plaintiff sought to recover damages for injuries sustained when his automobile was struck by the defendant’s train, the contention was made that the locomotive was not timely stopped. We reviewed the testimony, which was that the operator of the locomotive saw the automobile

“ * * * approaching at about thirty miles an hour, at a considerable distance away from the tracks, when the locomotive had reached * * * about 230 feet from the point of impact, and that he expected the automobile to stop before going upon the tracks.

“When the train was at about the middle of the neutral ground, some sixty feet from the crossing, Flores then realized that the automobile was not going to stop, and he immediately applied the emergency brake, but the stopping distance was too limited, and the collision ensued. Flores stated that when an automobile is observed approaching the tracks, an engineer cannot determine whether the driver will stop for the crossing, until the car has reached close proximity to the tracks and the driver’s intention becomes manifest.”

In resolving the question of whether the expectation that the car would stop constituted negligence on the part of the railroad, we pointed out that “it is a well-known fact that an automobile can be stopped more quickly than a train * * *

It thus appears that our jurisprudence is well settled that where the crewmen in charge of a train see an automobile approaching the tracks on which the train is operating, they are not negligent in assuming that it will stop unless such assumption is unreasonable under the circumstances. It necessarily follows that if they persist in this belief and this belief continues to be reasonable until it is no longer in their power to avoid the accident, there is no negligence on their part and no liability attaches to the railroad company.

In Barnes v. T. & N. O. Railroad Company, La.App. 1943, 16 So.2d 600, 602, cer-tiorari denied 1944, the decedent was standing between the rails of the track adjoining that on which the train was operating and suddenly turned and attempted to dash across the main line track: “The fireman, at his post in the locomotive of the train, testifies that he first saw Jennie Wallace standing between the rails of the passing track when the train was about a half mile from her position; that she continued to .stand at this point until the locomotive was about 300 feet away, at which time she turned and attempted to dash across the main line track. He testifies that he cried out to -her and signaled to the engineer, who made an emergency stop; bringing the train, which was traveling at a speed of about thirty miles an hour, to a stop some twenty car lengths south of the point of impact”.

The court expressed the opinion that the plaintiffs could only hope to recover by bringing the facts of the case within the doctrine of last clear chance or discovered peril: “In order to justify the application of the discovered peril theory in this case, it would be necessary to definitely establish the fact that, perceiving the actual peril, the members of the train crew failed to exercise every possible means at their command to avoid injury to the person in peril. This necessitates the establishment as a corollary proposition that the danger was discovered in time for precautionary measures to be taken. In our opinion neither of these predicates is satisfactorily established by the facts in this case.”

The court concluded that the deceased undoubtedly heard and saw the approach of the train and referred to the jurisprudence that such contributory negligence, even though continuing down to the moment of the accident, did not absolve the defendant of liability if the peril was actually or should have been discovered by it. It emphasized that the defendant was charged with the duty of saving the person in danger even from the consequences of his own negligence and went on to say: “But, it is also true that a defendant is not liable in those cases where accident could not be avoided after the existing peril was, or should have been, discovered. * * * There is nothing in the case before us which, even in the slightest degree, would indicate anything in the action, appearance or position of Jennie Wallace which would serve to warn the members of the train crew that she was in danger.”

The court pointed out that it would be thoroughly unreasonable to require the train crew to bring the train to a stop to avoid an accident which could only be contemplated as possible and not as imminent.

That the speed of the engine in the instant case was not faster than the permitted rate, but on the contrary was reasonable and proper, is clearly established by the testimony of the engineer, McCall, the fireman, Brechtel and the switch foreman, Heit-meier. They all testified that the speed of the train was between twelve and fifteen miles per hour.

According to the Public Bell Time Table, the maximum permissible speed was twenty-five miles per 'hour so that, in the absence of special circumstances, the speed of the train was manifestly proper.

It is no less evident from the testimony of the various witnesses that the engine was being properly operated and was under ■full control.

The testimony is clear and uncontro-verted that the engine headlight was burning in the direction in which the train was moving.

Although it appears that the engine was being properly operated, plaintiff contends that there was a failure to comply with the Public Bell Time Table requirement that: “All trains, yard cuts and/or engines must approach a highway or street crossing at grade with caution prepared to stop, crossing whistle sounded and bell ringing until engine passes over crossing.”

This contention is based apparently on plaintiff’s interpretation of this rule as requiring trains and engines to 'be so operated that they can ibe brought instantly to a stop at a crossing at any time, no matter how short the notice or how sudden the emergency. In our opinion the intent of this rule is merely that trains and engines anticipate the necessity of stopping for a blocked crossing, in contradistinction to trains and engines operating on main lines which may and must operate in the expectation that crossings will be open, and that this train was prepared to stop.

Here defendant’s train did approach the crossing with caution and its speed of fifteen miles per hour was consistent with its being prepared to stop if the crossing should not have been free of obstacles. It will be recalled that the stop was actually made in a distance of approximately one hundred twenty feet to one hundred fifty 'feet, a distance well within the limit of the headlight’s illumination.

The testimony is also clear that defendant’s employees in charge of the train were maintaining a proper lookout and exercised reasonable care, including the giving of warning signals, to avoid striking the automobile in which the plaintiff was a passenger.

It will be noted that the plaintiff and the driver of the automobile, Johnson, did not testify that no whistle was blown and no bell rung, but merely that they did not hear any warning signal. The rule is well established that negative testimony of this sort will not prevail against positive testimony to the contrary. See 32 C.J.S., Evidence, § 1037(c), p 1084; Natal v. L. & A. Ry. Co. 1931,18 La.App. 50, 137 So. 600; Helman v. Pan American Life Ins. Co., 1935, 1936, 183 La. 1045, 165 So. 195; Hutchinson v. T. & N. O. R. Co. La.App. 1947, 33 So.2d 139, 142.

It will he observed that there was no lack of adequate warning signs and signals. The occupants of an automobile approaching the trains as plaintiff’s vehicle was would first have their attention called to the presence of the railroad tracks by the highway warning signs on both sides of the road. Next they would be warned by the large wooden crossbuck signs on both sides of the highway approximately ten feet from the nearest rail of the first track. Finally, they would be warned by the continuous blinker light called for by City Ordinance No. 14,114 CCS on the telephone pole next to the crossbuck sign, which red light, flashing on and off, could not possibly be interpreted as anything other than a warning to be careful.

Plaintiff also contends that defendant failed to protect the crossing in the manner required by New Orleans City Ordinance No. 14,114 CCS dated 20 June 1934, Section 2 of which reads as follows: “Section 2. Be It Further Ordained, Etc., that every railroad company operating within the city limits of the City of New Orleans shall at all points where its rails or right-of-way cross or intersect a paved street situated in said city limits provide and maintain automatic signal lights of cm approved design, which shall be kept in constant operation at all times, provided at crossings where watchmen are stationed continuously by any such railroad company, it shall not be necessary to provide such automatic signal lights.” (Italics ours.)

The ordinance requires the provision and maintenance of “automatic signal lights of an approved design” and their constant operation. Precisely what constitutes “an approved design” does not appear 'from the language used in the ordinance.

Pretermitting the question of whether the light was proper to afford plaintiff help, the failure on defendant’s part to comply with municipal ordinances relative to crossing protection (such as having' a light which flashed only at the approach of a train as defendant contended) would have to be accompanied by a showing that plaintiff and the driver would have done more to insure their safety than they actually did. Here, both plaintiff and the driver testified that the car was stopped and that they looked for a train; can it logically be said that with a different type of signal they would have done more than they did ? Would they not still have stopped and •looked for a train? And having actually ■failed to hear the whistle and bell signals or to see the brilliant headlight, can we assume that any type of signal light would have averted this accident? We think not.

We recently observed that, even if the lights provided at the crossing were not entirely in compliance with the requirements of the ordinance, such noncompliance would not dispense with the necessity of the exercise of care by drivers and occupants of vehicles approaching the crossing. In Matthews v. N. O. Terminal, supra, the plaintiff contended that the defendant’s flasher-light signals were not operating at the time of the accident in which his automobile was struck by defendant’s train. We concluded in that case: “No useful purpose whatever would be served by resolving the question whether the crossing signal lights were properly operated, or for that' matter if they operated at all. However, assuming arguendo that the lights were not flashing, such fact of itself would not relieve plaintiff of the duty imposed upon him by law to stop, look, and listen for approaching trains, and by the exercise of prudence and vigilance to avoid placing himself in a position of imminent peril.” [45 So.2d 551]

We reviewed the plaintiff’s testimony as to his having stopped, looked and listened and concluded that there was no perceptible reason why he should not, by the exercise of his senses of sight and hearing, have became cognizant of the approaching train. We pointed out that one approaching a railroad crossing' “ * * * must see that which may be seen, and hear that which may foe heard, and he is held to have seen that which he could have and should have seen” and we concluded that the plaintiff's own testimony was convincing' that:

“ * * * he did not in the least take those precautionary steps which the law expected of him and which common sense and prudence dictated were proper under the circumstances prevailing at the crossing.

“ * * * we have reached the conclusion that the proximate cause of the collision was plaintiff's own negligence.

Assuming arguendo that failure to provide even greater protection at this crossing constituted negligence ori the part of the railroad company, a view most fa-vorafele to the plaintiff, we are still of the opinion that plaintiff cannot recover for it is a fundamental concept of tort liability that there must foe a causal connection between the negligence complained of and the injury sustained, and that, if the injury is not the natural and probable consequence of a defendant’s negligence and could not have been foreseen or reasonably anticipated as the probable result of such negligence, there can be no recovery. 44 Am.Jur. pp. 635-637, Railroads, Sec. 420.

In view of the fact that we find no negligence on the part of defendant herein, we conclude that it is unnecessary for us to pass upon the question of whether plaintiff, as a guest passenger, was free from negligence.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: LeBLANC, Justice.

text:
    217 La. 418
    DUCROS v. WILLIAMS et al.
    No. 38791.
    Supreme Court of Louisiana.
    April 24, 1950.
    Charles Janvier, New Orleans, for plaintiff-appellant.
    Chaffe, MdCall, Toler & Phillips and Leon Sarpy, New Orleans, and Harry McCall, Jr., New Orleans, for defendants-appellees.
   LeBLANC, Justice.

This is a suit by a mother against the estate of her deceased son. The real defendants are plaintiff’s daughter-in-law, widow of her deceased son, and her grandchild, a seven year old minor. The widow is sued in her capacity as widow in community and as legatee under a will and also as the tutrix of her minor child. She had accepted her husband’s succession unconditionally for herself and her child and had been placed in possession of his estate by judgment of 'Court. '

The demand is' based on a promissory ■note executed by Henry T. Chalaron, plaintiff’s deceased son, on October 5, 1945. The note was for the principal sum. of $3,100.00 .payable two years after date and bore interest at the rate of 6% per annum, interest payments being due monthly commencing November 1, 1945. Payment of $100.00 and of all interest due to October 1, 1946 is acknowledged in plaintiff’s petition and judgment is prayed for in the sum of $3,-000.00 with interest from that date.

The defendant, in answer for herself and as tutrix, admitted the execution of the note by her deceased husband, as alleged, but denies any indebtedness due thereon except the interest from November 1, 1946, to December 5, 1946, which was duly tendered to the plaintiff without any admission of liability on the principal amount of the note.

The defense, as appears from the-answer filed by the defendants, is to the effect that at the time the note was executed, the decedent, Henry T. -Chalaron, agreed with his mother that he would take out a policy of life insurance on his own life to secure the same, and accordingly on October 5, 1945 he did take out a five year term life insurance policy on his life ih the amount of $3,000.00 with The Union -Central Life Insurance Company of Cincinnati, Ohio, in which he designated his mother, the plaintiff, as beneficiary. It is averred that the first premium on the policy was paid by the deceased when the policy was issued and that the second premium was paid by his widow on November 4, 1946, with funds advanced to her by her family. It is also alleged that the policy was delivered and placed in the possession of the plaintiff as security for the indebtedness, which purpose was well known to the plaintiff and that upon the death of her son, plaintiff presented the policy to the local office of the insurance company for payment and payment was made in the amount of $3,000.00 to the plaintiff under the terms of the policy. It is further alleged that the policy was at all times in the possession of the plaintiff as creditor and pledgee for the security of the debt that had 'been incurred by her deceased son, ánd upon its payment, the note that he had executed in her favor had become extinguished.

In the Court below there was judgment in favor of the defendants dismissing the plaintiff’s suit at her costs, whereupon she took and is now prosecuting this appeal.

The sole contention of the plaintiff is that there was no pledge or assignment of the life insurance policy to secure the note sued on, which is the only basis on which its proceeds could have been applied to the payment of plaintiff’s indebtedness. It is urged that under the provisions of Act No. 189 of 1914, as last amended by Act No. 155 of 1934, the proceeds of all life insurance policies are exempt from, all liability for any debt unless the policy has been pledged, assigned, or advances made thereon, and inasmuch as there was no pledge or assignment of, nór were any advances made on the policy in question, its proceeds cannot be applied to the payment of the note sued on.

The point of law raised by counsel for plaintiff is not disputed but the contention of the defendant in this case is that there was a pledge of the policy, which formed an exception to the provisions of the statute under which plaintiff is seeking to have its proceeds exempted. The main issue is one of fact from which the Court will have to resolve whether or not there was a contract of pledge by which the decedent delivered to his mother the policy of insurance as security for the debt which he had' incurred. Revised Civil Code, Article 3133.

The facts reveal that at the time of the execution of the note 'by her son, he and the plaintiff did discuss the matter of taking out an insurance policy on his life but, according to her testimony, there was nothing definite that resulted from the discussion unless it be that there was some doubt whether he was in a physical condition to be insured. The only other allusion that was made to the matter,' according to her testi1 mony, was some months afterwards when she inquired of him what he had found out about it and his answer was something to the effect that he was in the habit of keeping his promises. The facts otherwise show that on October 8, 1945, three days after the execution of the note, he did take out a policy in which he designated his mother, Mrs. Emilie D. Chalaron, as the primary beneficiary and his wife, Mr. Ida F. W. Chalaron, as contingent beneficiary. Mrs. Chalaron testifies that she was in utter ignorance of the existence of the policy until it was discovered by her in her private armoire at her home after the death of her son, and after she had been informed by a letter from an attorney who was handling her son’s estate that the policy had been taken out in her favor. Her only explanation for its presence there is that she occasionally gave her son access to the armoire when he asked her for the key and, it may be that on a particular occasion when she was leaving home to go on an errand she gave him the key and told him to go over her papers to see what should be discarded and what should be kept to be placed in the bank. She surmised that it was' on that day that -he put the policy in her armoire but says that he never told her anything about it.

It is the contention of counsel that this was not sufficient to constitute the contract of pledge under the terms of Article 3133 of the Civil Code for the reason that the required delivery of the policy did not take place. The pertinent Articles read as follows :

Article 3133. “The pledge is a contract, by which one debtor gives something to his creditor as a security for his debt.”

Article 3152. “It is essential to the contract of pledge that the creditor be put in possession of the thing given to ,him in pledge, and consequently that actual- delivery of it be made to him, unless he has possession of it already by some other right.”

It may be that upon the testimony of the plaintiff alone the actual contract by which her son gave her the policy as security for his debt is not shown but her testimony is greatly weakened by that of members of her own family, including her son and daughters, to the effect that she virtually admitted to them in conversations with them, a day or two following the death of Henry Chalaron, that he had taken out a policy to protect her. • We are satisfied that the trial judge was correct in the conclusion he reached, after analyzing all of the testimony in the case', that it was the intention of the decedent in taking out the policy of insurance to secure the note that' his mother -held against him.

All of the circumstances of the case otherwise tend to support the finding of the trial judge. The discussion that took place between plaintiff and her deceased son regarding the taking out of a policy to protect her, the actual taking out of the policy for the exact amount of the loan three days after he had executed the note, making his mother the primary beneficiary under the policy when it appears that she was in no way dependent upon him, are all matters which tend to convince us of the intention of the parties. These circumstances together with the actual placing of the policy in the private armoire of the plaintiff -constituted the delivery -contemplated under Articles 3133 and 3152 of the Civil Code and resulted in the confection of a contract o-f pledge between them.

Counsel for plaintiff refers to the lack of assignment of the policy but as we construe the statute which exempts the proceeds of life insurance policies from the payment of any debt, there are three exceptions stated and if any one exists, that is all that is necessary. Among the three is- the one of a pledge of the policy and inasmuch as we hold that there was a valid pledge in this case it is unnecessary for us to -consider any of the other exceptions. The case was properly disposed of by the judgment of the lower Court, and for the reasons assigned it is hereby affirmed at the costs of the plaintiff appellant.