Colclough v. Orleans Parish School Bd.

• Decision Date: 15 July 1964
• Docket Number: No. 1507,1507
• Citation: 166 So.2d 647
• Parties: John A. COLCLOUGH, M.D. v. ORLEANS PARISH SCHOOL BOARD, Rene C. Petz, Bert S. Titus, Mrs. Naomi G. Smith, Geoffrey A. Richard, John J. Horvath, and Board of Commissioners of New Orleans City Park Improvement Association.
• Court: Court of Appeal of Louisiana — District of US

Page 647

166 So.2d 647

John A. COLCLOUGH, M.D. v. ORLEANS PARISH SCHOOL BOARD, Rene C. Petz, Bert S. Titus Mrs. Naomi G. Smith, Geoffrey A. Richard, John J Horvath, and Board of Commissioners of New Orleans City Park Improvement Association.

No. 1507.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1964.

Comiskey & Schaff, Val A. Schaff, III, New Orleans, for plaintiff and appellant.

Samuel I. Rosenberg, New Orleans, for Orleans Parish School Bd., Rene C. Petz, Bert S. Titus and John J. Horvath, defendants and appellees.

Lemle & Kelleher, Carl J. Schumacher, Jr., David L. Campbell, and R. M. Troy, Jr., New Orleans, for Mrs. Naomi G. Smith, defendant and appellee.

Reuter, Reuter & Schott, Arthur C. Reuter, New Orleans, for Geoffrey A. Richard, defendant and appellee.

Sessions, Fishman, Rosenson & Snellings and William P. Rutledge, New Orleans, for Board of Commrs. of City Park Improvement Assn. and United States Fidelity & Guaranty Co., defendants and appellees.

Before McBRIDE, REGAN and CHASEZ, JJ.

McBRIDE, Judge.

Plaintiff's suit was dismissed on defendants' exceptions of no cause or right of action and plaintiff has appealed. The issue on appeal is one of law predicated upon the allegations of fact in plaintiff's two petitions which, for the purpose of determining the exceptions, must be taken as true. Plaintiff's well-pleaded allegations of fact are these:

On February 15, 1963, he went to City Park in New Orleans to watch his son, who was a member of a local public high school football team, participate in the last scrimmage of the then spring practice season. The scrimmage took place in an open area of City Park which had neither markings of the gridiron boundary lines nor seats or accommodations for spectators. There were no barricades around the playing field.

Besides plaintiff, other spectators numbering 25 to 30, congregated about the area in which the practice was taking place; plaintiff positioned himself and stood about 10 to 12 feet from what would be one of the side boundary lines of the field. After plaintiff had been observing the players for about 20 minutes, a play was called whereby one of the participants was to carry the ball around left end, and in the execution thereof, five of the young athletes ran in the direction in which the spectators were standing. The play began on the far side of the field from where plaintiff and the others were gathered. The young players in their zeal overran the unmarked boundary of the playing field and the 10-yard measuring chain and dashed into plaintiff knocking him to the ground and causing the alleged injuries. There are no allegations going to show that the action of the boys in running into plaintiff was malicious or wilful, and it is easy to glean from the petitions that the occurrence was purely of an accidental nature.

Plaintiff sued for damages interpleading as solidary defendants Orleans Parish School Board (see Act 57 of 1963), Board of Commissioners of the New Orleans City Park Improvement Association (and its liability insurer) and the parents of the players who allegedly ran into plaintiff, said defendants being charged with various acts of negligence. All defendants filed the exceptions which were maintained below, most of which are grounded on the fact of plaintiff having voluntarily placed himself in an unsafe place exposed to danger and in assuming the risk of being injured under the circumstances.

The established jurisprudence is to the effect that as a general rule contributory negligence, which is a special defense, must be pleaded specially and be supported by evidence; but if the allegations of fact made by the plaintiff clearly disclose his contributory negligence, the issue may be raised by an exception of no cause of action. Louisiana Power & Light Company v. Saia, 188 La. 358, 177 So. 238 (and cases therein cited); Odum v. Newstadt's Shoe Stores, La.App., 194 So. 81; Arata v. Orleans Capitol Stores, Inc., 219 La. 1045, 55 So.2d 239.

In the last cited case, the Supreme Court also said:

'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...