Denton v. Fireman's Fund Ins. Co.
| Decision Date | 01 November 1963 |
| Docket Number | No. 9992,9992 |
| Citation | 158 So.2d 438 |
| Parties | Allen A. DENTON, Plaintiff-Appellee, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellant.
Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for appellee.
Before HARDY, GLADNEY and AYRES, JJ.
Allen A. Denton instituted this suit against the liability insurer of the Bass-Woodard Gulf Service, a filling station located at the corner of 70th Street and Linwood Avenue, Shreveport, Louisiana, for the recovery of damages arising from injuries received in a fall. After a trial on the merits, judgment was rendered favorable to plaintiff and Fireman's Fund Insurance Company, the defendant insurer, has appealed.
The facts essential to the case were established without dispute and a proper decision herein rests upon determination of liability. Perhaps the only fact concerning which there could be said to be a dispute is whether plaintiff fell because he tripped on the riser of the step which one must take going down from the office to the ground surface level, or whether he negotiated the riser and tripped on an electric cord. There were no witnesses to plaintiff's fall and he alone was informed as to exactly what did occur. Whether it was the riser, the wires, or both, that occasioned the fall is deemed to be of no legal significance.
On Saturday, December 30, 1961, at about 10:00 o'clock A.M., Denton drove his automobile into and stopped on the south side of the premises of the service station. He then turned the car over to W. O. Bass, a partner-owner of the service station, for the purpose of having the wheels balanced. As soon as proper instructions were given, Denton went into the service station office where he remained some ten or fifteen minutes attending to some business over the telephone. While the appellee was engaged with the telephone, Bass moved the automobile to a location directly in front of the office and parallel to its front. The automobile was parked near the northwest corner of the office. This position was selected to allow Bass to connect two electric cords, which were a part of the wheel balancing machine, with the source of electricity in wall sockets located on the exterior side and to the right of the door of the office. A diagram of the premises discloses that the office is erected on a riser six inches above the surface level of the station, the door of the office being approximately four feet from the riser. The automobile rested approximately eighteen inches away from the riser and while in this position Bass commenced balancing the left front wheel of the automobile. When Denton finished using the telephone he walked out of the front door of the service station office in order to put some maps and papers in his car. He turned right to as to pass around in front of the automobile and after he had taken a step or two, he fell and sustained a serious knee injury. He testified that as he stepped over the riser the wires caught his right leg above the ankle, thereby causing him to fall face down.
Counsel for appellant assigns error to the judgment in holding that Bass was under a legal duty to warn Denton of the presence of the electric cords; in failing to find plaintiff guilty of negligence that was either the sole proximate cause of the accident or guilty of contributory negligence by reason of his not looking where he was walking, for had he done so, he would have seen the electric cords.
On the other hand, the appellee's position in argument and brief is that the sole proximate cause of plaintiff's injuries was the failure of the defendant's insured to maintain the premises in a safe condition, and it is strongly urged that a service station operator owes his customers the duty of warning them of any danger of obstruction known to the operator which might not be known to his customer. The court is reminded that the burden or proving contributory negligence rests upon the party who pleads it.
Before this court, appellant contends that plaintiff has not proved any negligence attributable to the service station operator; that the latter is not the absolute insurer of the safety of persons properly on his premises, and is only required to exercise ordinary care to keep his premises in a reasonably safe condition. It is argued further that plaintiff knew that the wheels of his car were going to be balanced and the electric cords were in full view when plaintiff walked out of the office; that plaintiff also knew of the change in floor levels; that the type of wheel balancing as used by Bass was in general use and known to plaintiff; and that there was no duty imposed upon Bass to warn the plaintiff in this instance. It is pointed out that Denton admitted that as he walked out of the office door he was not looking toward the ground and frankly conceded that if he had looked where he was walking he would have seen the cords. He testified: 'I had been in and out of that station a jillion times and have been all over it * * *.' The western side of the office was enclosed in glass and the only thing that obstructed Denton's view while he was using the telephone was the coke box situated just outside the office adjacent to its northwest corner. Counsel stresses the fact that plaintiff knew of the riser between the floor of the office and the ground surface of the station, and knew he would have to pass over this step-down in order to get back to his automobile, for in truth he had crossed it just minutes before when he entered the office. At this point it should be observed that appellee upon leaving the office did not traverse the exact route he had used upon entering it, for the automobile then blocked his passage, and required that he take a different course from the door by either turning left or turning right. That the electric cords could have been easily observed and obvious to Denton if he had looked, must be inferred from photographs attached to the record. The wires were not concealed and they were of sufficient size to be noticed.
The foregoing circumstances pose the question that if, assuming arguendo, the duty rested upon Bass to warn Denton of the presence of the wires, did the failure to perform such a...
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...importance if plaintiff is guilty of contributory negligence constituting a proximate cause of the accident. Denton v. Fireman's Fund Insurance Company, 158 So.2d 438, 441--442, La.App., 2d Cir. A resume of the facts relating to the occurrence of the accident is deemed a prerequisite to an ......
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