Alexander v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 10 March 1975
• Docket Number: 10177,Nos. 10176,s. 10176
• Parties: Alton W. ALEXANDER v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al. HANOVER INSURANCE COMPANY et al. v. Lee SISTRUNK d/b/a Mid Parish Roofing Company et al.
• Court: Court of Appeal of Louisiana — District of US

Page 139

312 So.2d 139

Alton W. ALEXANDER v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.

HANOVER INSURANCE COMPANY et al. v. Lee SISTRUNK d/b/a Mid Parish Roofing Company et al.

Nos. 10176, 10177.

Court of Appeal of Louisiana, First Circuit.

March 10, 1975.

Rehearings Denied May 20, 1975.

Writ Refused June 23, 1975.

Lonnie Myles and Jesse P. Lagarde, Amite, for appellants.

Tom H. Matheny, Hammond, for appellees.

Before LANDRY, BLANCHE and YELVERTON, JJ.

LANDRY, Judge.

Defendant, liability insurer of Lee Sistrunk, d/b/a Mid Parish Roofing Company (Sistrunk), St. Paul Fire and Marine Insurance Company (St. Paul), appeals judgments awarding plaintiff, Alton W. Alexander (Alexander), damages for personal injuries sustained in a fall from a ladder erected by Sistrunk at a construction site and awarding plaintiff, Hanover Insurance Company (Hanover), judgment in subrogation for workmen's compensation benefits paid Alexander, as compensation insurer of Alexander's employer, Ragusa Brothers Inc. (Ragusa), a building contractor. The trial court rendered judgment in favor of plaintiffs upon finding the doctrine of res ipsa loquitur applicable. We reverse and render judgment for defendants in each case.

The accident occurred June 17, 1970. Alexander is a carpenter who had been employed by Ragusa for approximately 17 years prior to the accident. For the last two and one-half years of his employment, Alexander was a working foreman earning $4.50 hourly. The accident occurred while Alexander was working on the roof of the Hammond State School near Hammond, in Tangipahoa Parish, Louisiana. Ragusa had a contract to install air conditioning units in the school. The work required that holes be cut in the roof. Alexander and one helper, Anthony C. LaMarca, were assigned by Ragusa to perform the carpenter work necessary to cut and frame the holes. Ragusa sub-contracted to Sistrunk the task of repairing and waterproofing the roof after Ragusa made the required openings.

On the day in question, Sistrunk and his crew, consisting of Jesse W. Sibley, Howard Gorsuch and Charles Miller, reported to the job site at approximately 7:30 A.M. The roof deck of the school building was approximately 13 feet above the ground. Sistrunk's equipment included, inter alia, an aluminum extension ladder. The ladder was extended its maximum length and placed against the building to provide access to the roof. During the workday which followed, the ladder was used jointly by Sistrunk's crew, plaintiff Alexander and his helper, LaMarca.

Alexander marked the locations of the several holes to be cut in the roof. Sistrunk and his crew cleared the marked areas of the then existing roofing materials, following which Alexander and LaMarca cut holes in the roof decking. After the holes were cut and framed, Sistrunk and his crew then reapplied paper and tar around the framed areas to make the roof waterproof. The reroofing process required the use of melted tar which was provided by a 'tar pot' situated on the ground and manned by Miller, who served as the ground man of Sistrunk's crew. At some time during the day, a pulley was attached to the underside of the ladder (between the ladder and building) by affixing it to a rung of the ladder above the roof. The device was used to raise buckets of hot tar up to the workmen. To hoist a bucket of tar, a workman on the roof held the ladder away from the building with one hand while taking hold of the bucket with the other hand and bringing the bucket up between the building and the ladder over the eave and onto the roof. The ladder in question was 17 feet, 3 inches, in length when fully extended. There is some dispute concerning the height of the ladder above the roof when the ladder was adjusted to its maximum length. Alexander and LaMarca testified the ladder extended from four to six feet above the roof deck. Sistrunk and his crew testified that it extended between three and four feet above the roof. The record conclusively establishes that the ladder could not extend more than 3 1/2 to 4 feet above the roof deck when positioned at a safe climbing angle. During the day, the ladder was used by all workmen. At approximately 4:15 P.M., as Alexander was descending the ladder, after completing the work of framing and covering the holes, he fell to the ground and sustained serious injury to his left ankle.

Subject ladder is composed of two 9 foot sections, extendable to the maximum length noted. The ladder rungs are made of aluminum tubing welded into aluminum channel rails. The ladder is extended by adjusting the upper section to rungs of the lower section by means of two jaw-like hooks installed inside and parallel to the railings of the extension section. The upper or load bearing part of each 'jaw' fits over and closes around a ladder rung of the lower section to maintain the ladder at a desired length. The lower part of the 'jaw' or hook closes the 'jaw' by pivoting on a pin inserted through the load bearing arm of the 'jaw' . The lower portion of the 'jaw' is counterbalanced and/or spring loaded to maintain the hook in a closed position to prevent the load bearing hook from engaging a rung when the ladder is lowered in height. To shorten the ladder one or more rungs, but not to its minimum length, the hook must be manually opened by applying upward pressure to the outer underside edge of the lower 'jaw' part. This causes the opposite or inside edge of the lower part to pivot and drop or open, thereby exposing the open 'hook' and permitting the 'hook' to engage the desired rung. To increase height, the extension portion is simply pushed upward to the desired rung. The hooks are so contrived that pushing upward causes the hook to engage each successive rung, without locking, so long as upward pressure is applied. When the desired rung is reached, the extension is made fast by exerting a slight downward pressure which causes the under part of the 'jaw' to close and lock the ladder securely in place. As noted, to keep the hook open when the ladder is being lowered, pressure must be applied to the outer under edge of the lower jaw part, otherwise the 'jaw' closes and prevents the hook from engaging any rung as the extension is lowered. In short, this provides a convenient means of completely reducing the ladder to its shortest length. Theoretically, at least, the latching device is so constructed that when it is properly operating, the extension cannot engage a rung while being lowered unless manual pressure is applied to the lower part of the device as above mentioned.

On the day in question, the ladder was installed before work began in the morning. The evidence preponderates to the effect that it was fully extended, and some time during the day, when the use of tar became necessary, the pulley was attached to the second rung from the top by one of Sistrunk's crew. Although the precise time of its removal is not made clear, it is certain that the pulley was removed in the afternoon by one of Sistrunk's men after it was no longer needed to hoist tar to the roof. During the day, the ladder was used repeatedly by plaintiff, Alexander, and LaMarca.

At the end of the day's work, Sistrunk's crew consisting of himself, Howard Gorsuch, Jesse W. Sibley and Charles Miller, all descended the roof before Alexander and LaMarca. Neither Sistrunk nor his men recalled who removed the pulley from the ladder. Those who testified, namely, Sistrunk, Gorsuch and Sibley, stated the pulley had been removed before they descended for the last time. Sistrunk and Gorsuch were the last of the Sistrunk crew to return to the ground. There is some divergence of view concerning whether Sistrunk or Gorsuch was last to come down. It is undisputed that Alexander and LaMarca were alone of the roof when Alexander fell.

Sistrunk testified he made an uneventful descent shortly before Alexander fell. He walked to his nearby truck, heard a noise from the direction of the ladder, turned and saw the ladder slip to the left, and saw plaintiff fall to the right. He also stated the ladder did not fall to the ground.

Gorsuch testified that when he descended, he went toward Sistrunk's truck to ask Sistrunk about the next day's work. He stated that as he proceeded towards Sistrunk's vehicle, he heard the ladder 'make a kind of squeaking noise'. He turned and saw plaintiff falling to the ground. He did not recall seeing the ladder. He rushed to plaintiff's aid. He saw LaMarca come down the ladder after Alexander fell. Gorsuch also stated that the accident happened about five minutes after he descended the ladder. He did not recall whether the pulley was still on the ladder when he used it for the last time.

Jesse W. Sibley testified he came down before Alexander, but did not see the accident. He saw plaintiff on the ground after the fall. He did not know whether or not the ladder fell to the ground in the accident.

Plaintiff, Alexander, testified that to the best of his knowledge, the pulley was removed from the ladder before the accident. He believed the ladder had been lowered from a height of four to six feet above the roof to only one or two feet over the roof deck. When he approached the ladder, he grasped the side rail with his left hand and swung his right foot over without looking or without testing the ladder. He swung his foot around to contract the ladder, and saw LaMarca standing about two or three feet away. As his foot contacted the ladder,...