Finney v. Banner Cleaners & Dyers, Inc.

• Decision Date: 10 March 1930
• Docket Number: 11,890
• Parties: FINNEY v. BANNER CLEANERS & DYERS, INC., ET AL
• Court: Court of Appeal of Louisiana — District of US

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

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 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 rear, causing him to fall in front of the truck, which ran over his left foot fracturing three bones. He was taken to the Flint Goodridge Hospital, where he was treated for his injuries.

Plaintiff is the only one who testified as to how the accident occurred. The party in the employment of the defendant who opened the doors or gates was not produced as a witness.

Plaintiff contends that as the employee of the defendant who opened the doors or gates knew that they opened outwardly and that the alley was a common one traversed by pedestrians and vehicles, he was guilty of negligence and carelessness in suddenly, without warning, and with force opening the door, through which he could not see, in disregard of the rights of those who might be using the alley, and therefore defendant is liable.

Defendant contends that it was not negligence on the part of its employee to open the doors or gates, as he could not foresee that anyone would be standing by them and that he did not owe the plaintiff any duty of anticipating his presence or that of the truck; that the plaintiff saw or should have seen the double doors or gates and realized that they might be used at any moment, and having assumed a position of danger, he was guilty of contributory negligence which bars his recovery; and that plaintiff assumed the risk incidental to the use of the alley.

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