Finney v. Banner Cleaners & Dyers, Inc., 11,890

CourtCourt of Appeal of Louisiana (US)
Writing for the CourtHIGGINS, J.
Citation13 La. App. 101,126 So. 573
PartiesFINNEY v. BANNER CLEANERS & DYERS, INC., ET AL
Decision Date10 March 1930
Docket Number11,890

126 So. 573

13 La. App. 101

FINNEY
v.
BANNER CLEANERS & DYERS, INC., ET AL

No. 11,890

Court of Appeals of Louisiana, Orleans

March 10, 1930


Rehearing Refused April 7, 1930.

Writ of Certiorari and Review Refused by Supreme Court May 5, 1930.

Appeal from the Civil District Court for the Parish of Orleans, Division "A." Hon. Hugh C. Cage, Judge.

Action by Charles Finney against Banner Cleaners & Dyers, Inc., et al.

There was judgment for defendants and plaintiff appealed.

Judgment reversed.

John C. Hollingsworth, of New Orleans, attorney for defendants, appellees.

Eraste Vidrine, of New Orleans, attorney for plaintiff, appellant.

OPINION

[13 La.App. 573] HIGGINS, J.

This is an action to recover damages for personal injuries which plaintiff alleges he sustained on March 23, 1927, at 8:30 a. m., when he was suddenly, violently, and without warning struck from the rear by a heavy door or gate which one of defendant's employees opened, causing him to fall in front of an autotruck which ran over his left foot fracturing three of the metatarsus bones. The suit is against the owner of the truck and the owner of the property, which was also the employer of the party who opened the door, in solido.

The respondent owner of the truck was dismissed from the suit on an exception of no cause of action, on the ground that the allegations in the petition showed that the driver of the truck was free from fault or negligence. Plaintiff did not appeal from this judgment.

The other defendant, which was the owner of the property where the gates or doors were located and the employer of the party who opened the gates or doors, filed an exception [13 La.App. 574] of no cause of action which was overruled. It then answered denying liability and pleaded contributory negligence on the ground that the plaintiff was negligent in failing to observe the doors or gates and in standing too close to them; and further pleaded assumption of risk on the ground that a building of the defendant was being repaired by third persons who used the alley and that plaintiff assumed the risk incidental thereto.

On the trial of the case on the merits there was judgment in favor of defendant dismissing the suit, and plaintiff has appealed.

The record shows that there is a paved alley 11 feet 7 inches in width running from Camp to St. Charles street between Julia and St. Joseph streets, this city. The rear of defendant's property abuts the alley. Four years before the accident double solid doors or gates were constructed which opened into the alley. At the time of the accident, defendant was having its building repaired and remodeled, and plaintiff, a negro 64 years of age, was engaged as the foreman by the subcontractor who had a contract for repairing the roof on the building. It appears that the alley is a common one for the use of the owners of property abutting it, and that it is used both by vehicles and pedestrians. The plaintiff was engaged in preparing tar and necessary tools for the crew that was to go on the roof of the building and had taken these tools and buckets from a building on the downtown side of the alley, and observing that there was a truck coming into the alley from Camp street, he stepped across the alley to which he considered a place of safety. He placed the buckets on the ground and his back was towards the double solid gates or doors located on defendant's property. When the truck was in close proximity to him and while in a stooping position, the double doors or gates were suddenly, forcefully, and without warning opened, striking the plaintiff from the...

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4 practice notes
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...the result of passion and prejudice occasioned in large part by the wrongful conduct of the plaintiff. Finney v. Banner Cleaners & Dyers, 126 So. 573. Schultz & Bodney and Walter A. Raymond for (1) The defendants' respective demurrers to the evidence were properly overruled as a submissible......
  • Lynch v. Fisher, 7021.
    • United States
    • Court of Appeal of Louisiana (US)
    • March 27, 1947
    ...v. Hochfelder, 153 La. 183, 95 So. 598; Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670; an Finney v. Banner Cleaners & Dyers, 13 La.App. 101, 126 So. 573. We make no attempt to minimize the unusual and improbable character of the incident which is alleged to have occurred in the ca......
  • Preuett v. State Through Dept. of Highways, No. 7852
    • United States
    • Court of Appeal of Louisiana (US)
    • January 7, 1953
    ...v. Hochfelder, 153 La. 183, 95 So. 598; Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670; and Finney v. Banner Cleaners & Dyers, 13 La.App. 101, 126 So. 'We make no attempt to minimize the unusual and improbable character of the incident which is alleged to have occurred in the case ......
  • Williams v. Employers Liability Assurance Corp., Ltd., No. 18340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 17, 1961
    ...liability under Article 177; the citation of the article was a genuflexion to the civil law. In Finney v. Banner Cleaners & Dyers, 1930, 13 La.App. 101, 126 So. 573, 574, the plaintiff brought suit against the owner of a building to recover damages for injuries he sustained when one of the ......
4 cases
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...the result of passion and prejudice occasioned in large part by the wrongful conduct of the plaintiff. Finney v. Banner Cleaners & Dyers, 126 So. 573. Schultz & Bodney and Walter A. Raymond for (1) The defendants' respective demurrers to the evidence were properly overruled as a submissible......
  • Lynch v. Fisher, 7021.
    • United States
    • Court of Appeal of Louisiana (US)
    • March 27, 1947
    ...v. Hochfelder, 153 La. 183, 95 So. 598; Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670; an Finney v. Banner Cleaners & Dyers, 13 La.App. 101, 126 So. 573. We make no attempt to minimize the unusual and improbable character of the incident which is alleged to have occurred in the ca......
  • Preuett v. State Through Dept. of Highways, No. 7852
    • United States
    • Court of Appeal of Louisiana (US)
    • January 7, 1953
    ...v. Hochfelder, 153 La. 183, 95 So. 598; Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670; and Finney v. Banner Cleaners & Dyers, 13 La.App. 101, 126 So. 'We make no attempt to minimize the unusual and improbable character of the incident which is alleged to have occurred in the case ......
  • Williams v. Employers Liability Assurance Corp., Ltd., No. 18340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 17, 1961
    ...liability under Article 177; the citation of the article was a genuflexion to the civil law. In Finney v. Banner Cleaners & Dyers, 1930, 13 La.App. 101, 126 So. 573, 574, the plaintiff brought suit against the owner of a building to recover damages for injuries he sustained when one of the ......

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