Mercer v. Tremont & G. Ry. Co.

• Decision Date: 29 May 1944
• Docket Number: 6744.
• Citation: 19 So.2d 270
• Court: Court of Appeal of Louisiana — District of US
• Parties: MERCER et ux. v. TREMONT & G. RY. CO.

19 So.2d 270

MERCER et ux. v. TREMONT & G. RY. CO.

No. 6744.

Court of Appeals of Louisiana, Second Circuit

May 29, 1944

Rehearing Denied June 30, 1944.

Certiorari Denied Oct. 3, 1944. [Copyrighted Material Omitted]

Theus Grisham, Davis & Leigh, of Monroe, for appellant.

John R. Hunter & Son, of Alexandria, for appellees.

HARDY, Judge.

This is a tort action in which plaintiffs, as the mother and father of their minor son, Earl Mercer, seek to recover damages for injuries suffered by their said son while on premises belonging to the defendant railway company.

On October 1 1941, Earl Mercer, a 16-year-old boy, weighing about 95 pounds, employed by the Winn Parish Printing Company publishers of the Winn Parish Enterprise, made a call at the shop office of the Tremont & Gulf Railway Company located in Winnfield, Louisiana. The established purpose of the boy's visit was to solicit a subscription for space in football ads to be published in the Winn Parish Enterprise. This was in line with the boy's employment as collector and advertising salesman. It was his intention to solicit the advertising from Mr. Jesse Corley, with whom he was acquainted and with whom he had previously done some business, not, however, in the nature of advertising. Mr. Corley was superintendent of motor cars in the employ of the defendant company. It is established that Corley had no authority to contract for advertising space on behalf of the defendant company, but it was also established that young Mercer did not know this fact at the time he made the call for the purpose set forth.

Arriving at the shop office, Mercer found that Mr. Corley was engaged, and stepped outside of the office to await an opportunity to speak to him. At this point there is a conflict of testimony, which is emphasized in briefs of defendant's counsel. Mercer testified that he was told be a man in the office, whom he assumed to be an employee of the company, to step outside and wait until Mr. Corley was at leisure. However, Mercer could not identify this individual, did not recognize him to be any one of eleven employees of the defendant company who appeared at the trial, nor could he remember ever having seen the man in question before or since the occasion of which he testified.

It appears that the passageway to the shop office of defendant company leads from the entrance to the company's premises, where 'No Trespassing' signs are prominently posted, by means of a well-defined and much-used trail or pathway to the building in which the shop office is maintained. Immediately adjacent to the office, abutting on the trail, there is a substantial platform constructed of heavy timber, upon which the company has been accustomed to stack spare car wheels of varying weights, running from 700 to 900 pounds each. The method of stacking the wheels is shown to be the method commonly employed by defendant and other railway companies. At the back of the platform there is a heavy timber backstop and against this the first two wheels, upon being unloaded upon the platform, are leaned, which wheels are fixed in place by means of a 4X4, or some similar piece of timber, which is driven through the axle holes of the wheels. Additional wheels are then stacked against the first two, each wheel leaning toward the backstop of the platform. The wheels are arranged in rows by weight, and, as need arises, they are easily handled by means of a small hand-truck operated by an employee, who runs the truck up to the wheel and tilts the wheel over upon the truck.

There can be no question but that the method of stacking wheels upon the platform was adopted by the defendant company in the interest of its own convenience, and for the purpose of facilitating the handling of these heavy wheels.

Mercer's testimony is to the effect that while waiting for Mr. Corley, he stood by one of the rows of wheels examining a file of papers which comprised his advertising layout. Suddenly, and without warning, one of the wheels in the row by which he was standing fell upon his left leg, just above the knee, pinning him to the ground, and a second wheel fell upon the top of the first. The accident caused a fracture of the left leg and thigh, necessitating two separate periods of hospitalization and a long course of treatment. Damages amounting to $23,050 were claimed by plaintiffs, and after trial there was judgment in favor of plaintiffs in the sum of $2,000. Plaintiffs represent themselves as being satisfied with the amount of the judgment, in view of the fact that the injuries sustained did not have the serious and permanent results which were anticipated at the time of filing the suit. From the judgment defendant appeals.

An exception of no cause of action was filed by defendant directed at the point that plaintiffs' petition failed to allege all of the essential elements of duty, breach of duty, and injury, in that, while injury was alleged, neither duty nor breach of duty were sufficiently set up. The exception was overruled by the trial Court, which ruling we find to be correct.

An examination of plaintiffs' petition discloses the allegations that the wheels fell without any fault or negligence on the part of the injured youth; that the injuries suffered as the result were directly attributable to the gross fault and negligence of the defendant; that the accident came under the doctrine of res ipsa loquitur; that the path was used by the general public to the knowledge of defendant, which amounted to an invitation, and that at the time of the accident it was being used by Earl Mercer at the suggestion of agents or employees of the company, and without warning as to the dangerous condition of the path by reason of its immediate proximity to the stacks of car wheels.

Other allegations of the petition, to which we do not find it necessary to call attention in detail, add to the ones above noted, and, in our opinion, plaintiffs' petition is amply sufficient to state a cause of action.

The points urged on behalf of defendant in brief on the exception of no cause of action are emphasized and reiterated in the briefs and arguments on the merits, and are unquestionably the decisive factors of the case. Since these questions of law are fully covered in this opinion, and since they are applicable to the exception, as well as to the merits, we see no need for elaborating our reasons for agreement with the ruling of the exception.

The doctrine of res ipsa loquitur is the doctrine invoked in aid of a plaintiff in instances where the occurrence of the accident itself serves to make out a prima facie case of negligence on the part of a defendant. When the circumstances surrounding the accident indicate that such accident would not ordinarily occur without some particular act of omission or commission on the part of a defendant, the mere fact that the accident took place is sufficient to create a presumption of negligence. The theory of the doctrine is intended to protect the rights of an injured person under circumstances surrounding the happening of an accident which leave the cause thereof unknown to the injured party. The law then presumes the superior knowledge on the part of the owner, possessor or operator of the instrumentality causing the injury. Jones v. Shell Petroleum Corp., 185 La. 1067, 171 So. 447; Loprestie v. Roy Motors, Inc., 191 La. 239, 185 So. 11; Pizzitola v. Letellier Transfer Co., La.App., 167 So. 158; Rome v. London & Lancashire Indemnity Co. of America, La.Ap., 169 So. 132; Gershner v. Gulf Refining Co., La.App., 171 So. 399.

It is true that the doctrine of res ipsa loquitur is not proof and does not supply a want of proof, but, nonetheless, the application of this rule of evidence creates a presumption of negligence on the part of defendant, which presumption must be rebutted by the defendant in order to relieve him from liability flowing from presumptive negligence. Smith v. United States, 5 Cir., 96 F.2d 976; Asprodites v. Standard Fruit & Steamship Co., 5 Cir., 108 F.2d 728; Daroca v. Metropolitan Life Ins. Co., 5 Cir., 121 F.2d 917.

Under the facts of the instant case, there is no question as to the applicability of the doctrine. The allegations of the petition negate any action on the part of the injured boy which could have caused the accident, and any knowledge on the part of the plaintiffs as to an explanation of the cause of the particular accident. Clearly, therefore, this case calls for the application of the doctrine, and the burden was upon defendant to clear itself of responsibility.

Coupled with the question of res ipsa loquitur, this case gives rise to another proposition of law, namely, the capacity and character in which the injured youth was present on the premises of the defendant at the time of the accident. Upon the answer to this question, of course, depends the degree of care required of the defendant.

Unquestionably, Earl Mercer was present on the premises of the defendant company at the time of the accident as a trespasser, a licensee, or an invitee. There is no contention that Mercer was a trespasser, but there is a serious argument as to whether he occupied the status of licensee or invitee. It is contended on behalf of plaintiffs that the injured boy was an invitee, and, in the alternative, even if he were a licensee, that the facts demonstrate defendant's neglect of the duties owed to licensees. On the part of defendant, counsel urges that Mercer must be considered as a mere licensee, taking the premises as he found them them, and that defendant was not liable for any breach of duty to him as a licensee.

The jurisprudence of Louisiana, as well as other states, has very definitely designated the limits of the obligations and responsibilities of an owner...