Arata v. Orleans Capitol Stores

• Decision Date: 05 November 1951
• Docket Number: No. 40121,40121
• Citation: 55 So.2d 239,219 La. 1045
• Court: Louisiana Supreme Court
• Parties: ARATA v. ORLEANS CAPITOL STORES, Inc. et al.

Page 239

55 So.2d 239

219 La. 1045

ARATA v. ORLEANS CAPITOL STORES, Inc. et al.

No. 40121.

Supreme Court of Louisiana.

Nov. 5, 1951.

Ainsworth & Ainsworth and Harold R. Ainsworth, all of New Orleans for plaintiff.

Henry B. Curtis, City Atty., Alvin J. Liska, Asst. City Atty., New Orleans, for City of New Orleans, defendant-appellee.

Bienvenu & Culver and P. A. Bienvenu, all of New Orleans, Orleans Capitol Stores, Inc., and Massachusetts Bonding and Insurance Co., for defendants-respondents.

HAMITER, Justice.

Hypolite A. Arata, individually and for the use and benefit of his minor son, Thomas C. Arata, instituted this suit to recover damages allegedly resulting from injuries sustained by the son when the bicycle on which he was riding encountered a defective portion of the concrete sidewalk bordering Canal Boulevard near its intersection will Weiblen Place in the City of New Orleans. Named as defendants are the City of New Orleans, the Orleans Capitol Stores, Inc. (the abutting property owner and hereinafter sometimes referred to as the Store), and the Massachusetts Bonding & Insurance Company (the Store's liability insurer).

The district court sustained exceptions of no cause of action filed by the several defendants and, as a consequence, dismissed the suit. The Court of Appeal for the Parish of Orleans affirmed the judgment, assigning as its reason therefor that the facts set forth in the petition clearly establish contributory negligence on the part of the son which bars recovery. See La.App., 47 So.2d 119.

On plaintiff's application we granted the writ of certiorari.

According to the allegations of fact of the petition (as supplemented), which are to be taken as true in considering the sustained exceptions of no cause of action, the Store, on April 26, 1948, and for several years prior thereto, engaged in the food business at the corner of Weiblen Place and Canal Boulevard in the City of New Orleans. Along the Boulevard frontage there existed a public concrete sidewalk, across which the Store maintained a driveway that served vehicle using the parking lot situated on its property. This crossing was continually traversed by the Store's delivery trucks and by vehicles of its customers. About six o'clock P.M. of the above mentioned date plaintiff's ten year old son went to the store on his bicycle for the purpose of purchasing merchandise, but he found it closed. As he was returning to his home the front wheel of his bicycle struck a defective part of the concrete vehicle crossing, causing him to be thrown to the ground and severely injured. Both the Store and the City of New Orleans knew or should have known of the crossing's disrepair.

Additional allegations made by plaintiff are the following:

'That the vehicle crossing of the sidewalk of concrete paved material became and remained much broken and out of repair for many months, the exact period being unknown to your petitioner, so as to make and render it dangerous for the general public use; the said broken portion being a depression of the level of the original paved concrete sidewalk about three (3) feet in diameter and six (6) inches in depth and contained broken concrete and uneven shells from the property occupied by the defendant, Orleans Capitol Stores, Inc.; the property occupied by the Orleans Capitol Stores, Inc. likewise contained a large depression of about ten (10) feet in diameter and eight (8) inches in depth, which sloped into the depression on the sidewalk and caused the bicycle operated by Thomas Arata to proceed into the depression in the sidewalk.

'That the vehicular traffic constantly moving to and from Orleans Capitol Stores, Inc.'s place of business and repeatedly passing over the crossing was the cause of this continuing condition, together with the failure of the defendant, Orleans Capitol Stores, Inc., to keep the property, on which it was inviting the public to come and engage in the transaction of business, in good and proper repair, particularly in its permitting the depression in the ground to exist as immediately hereinabove described, likewise causing the undermining and breaking down of the foundation of the sidewalk, which would not have occurred except for the negligence of the defendant, Orleans Capitol Stores, Inc., in permitting such depression and hole to develop without filling same to the surface or grade of the remainder of the property.'

Under their exceptions of no cause of action all defendants are united in the position, sustained by the Court of Appeal, that the petition conclusively shows contributory negligence of the minor.

In reaching its decision the Court of Appeal took into consideration the established jurisprudence to the effect that as a general rule contributory negligence, being a special defense, must be pleaded specially and be supported by evidence; but if the allegations of fact of the petition clearly disclose its existence the issue may be raised by an exception of no cause of action. Louisiana Power & Light Company v. Saia et al., 188 La. 358, 177 So. 238 (and cases therein cited); Odum v. Newstadt's Shoe Stores et al., La.App., 194 So. 81.

It is also well settled, however, with respect to such issue, that inasmuch as a plaintiff is not required to negative contributory negligence in his petition the exception should not be maintained unless the alleged facts establish affirmatively the existence of negligence on his part proximately causing the accident. To warrant the upholding of the exception, in other words, it is necessary that the allegations exclude every reasonable hypothesis other than that the proximate cause of the accident was negligence of the plaintiff. Gibbs v. Illinois Central Railroad Co., 169 La. 450, 125 So. 445; Burmaster v. Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans, La.App., 174 So. 135; Pittman v. Gifford-Hill & Co., Inc., La.App., 188 So. 470; West v. Ray, 210 La. 25, 26 So.2d 221; Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720.

In the instant case, it is true the petition alleges that the accident occurred during daylight hours and resulted from the bicycle's striking a depression in the concrete sidewalk (about three feet in diameter and six inches in depth); and these allegations, when taken alone, would indicate inattention on the part of plaintiff's son in traversing the vehicle crossing. But there are other allegations to be considered also, the most important of which are that the encountered sidewalk defect contained broken concrete and uneven shells and that situated on the Store's property was a 'large depression of about ten (10) feet in diameter and eight (8) inches in depth, which sloped into the depression on the sidewalk and caused the bicycle operated by Thomas Arata to proceed into the depresion in the sidewalk.' And when these averments are taken into consideration it cannot be said with certainty that the minor was inattentive or careless in the operation of his bicycle. From them it might well be inferred that because of the depression leading to the sidewalk he was unable to avoid the defective portion. Or possibly the dangerousness of the sidewalk defect was not readily apparent by reason of the broken concrete and shells therein contained; and on encountering it the contents moved, causing his being thrown.

Accordingly, the allegations of the petition, viewed in their entirety, do not affirmatively disclose neglience of the minor proximately causing the accident; which is to say that they do not exclude every reasonable hypothesis other than that he failed to use ordinary care. This is particularly true when it is remembered that such minor, as shown by the allegations, was only ten years of age. Some children of that age, unquestionably, can be guilty of contributory negligence. However, as stated in 38 American Jurisprudence verbo Negligence, Section 204: 'The exact cautionary measures that must be taken by children cannot be expressed, of course, by any general rule; they must, in connection with the circumstances in each case, depend upon the intelligence, capacity and judgment which the child is shown by the evidence to have possessed.'

Perhaps after a trial of the merits, when all of the circumstances surrounding...