Fradger v. Shaffer-Stein Corp.

• Citation: 73 So.2d 612
• Decision Date: 25 June 1954
• Docket Number: No. 8154,SHAFFER-STEIN,8154
• Parties: FRADGER v.CORP. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 612

73 So.2d 612

FRADGER v. SHAFFER-STEIN CORP. et al.

No. 8154.

Court of Appeal of Louisiana, Second Circuit.

June 25, 1954.

Rehearing Denied July 16, 1954.

Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellant.

Cook, Clark & Egan and Wilson, Abramson & Maroun, Shreveport, for appellees.

AYRES, Judge.

This is an action in tort against defendant and its insurer for personal injuries received by plaintiff, a colored employee of the Shreveport Waste Paper Company, Inc.

Both the Shreveport Waste Paper Company, Inc., and the defendant were engaged in buying and selling waste paper. Plaintiff's employer sold a truck load of paper to defendant, which was only one of many similar transactions between them over the past few years. The paper was compressed into bales approximately 6X4X3 feet and weighing some 900 to 1500 pounds. Defendant sent its truck to the seller's warehouse where the bales of paper were loaded by mechanical equipment onto the flat bed of the truck. In accordance with an agreement between the vendor, plaintiff's employer, and the defendant, vendor would furnish an employee and its mechanical equipment to load the paper onto the truck and to place in proper position thereon. One piece of the equipment used was known as a hand buggy, on which the paper was loaded and transported onto the truck. After some six or eight bales were loaded, the accident occurred which forms the basis of this action.

The evidence discloses there were two holes in the floor of the truck bed, one of which was about six inches wide and twelve to eighteen inches long, and it was into that hold that the left wheel of this hand buggy dropped, jerking the handles, and striking plaintiff and knocking him off or causing him to fall from the truck approximately six feet to the pavement below.

The evidence further discloses that the front of the truck bed was clear of paper and that the holes therein were clearly visible to all those working around the truck, and were well known to plaintiff. The owners of the truck knew of its condition prior to the accident but had not caused it to be repaired. On prior occasions metal strips had been used to cover the holes.

After trial on the merits, judgment was rendered rejecting plaintiff's demands, and plaintiff has appealed therefrom.

We are informed by statement in counsels' briefs that the trial court in rendering judgment sustained defendant's plea of contributory negligence on the part of plaintiff.

Before this court defendant urges two defenses, first, that plaintiff is guilty of contributory negligence, and, second, that defendant is not a third party within the contemplation of the Workmen's Compensation Act, LSA-R.S., 23:1021 et seq., and, therefore, is not subject to a tort action.

Notwithstanding plaintiff's allegation 'That said truck of said defendant was littered with paper and trash, effectively hiding the condition of the floor of said truck from view', and the further allegation 'That as petitioner rolled said hand truck onto the bed of said truck of defendant, a wheel of said hand truck dropped into a hole in the floor of said truck, which petitioner did not know was in said truck, tipping over the hand truck he was using and throwing the bale of paper off of said hand truck onto petitioner and knocking him from said truck onto the ground,' the evidence does not establish the existence of any concealed danger of which plaintiff was unaware.

Cleve Richardson, truck driver of the defendant, testified there was no paper or debris or litter on the truck bed as it was swept before leaving defendant's place.

Mr. L. H. Craig and John Adger, witnesses for the plaintiff, likewise testified there was no litter on the truck, and, in fact, plaintiff himself gave evidence that the top of the truck bed was clean.

Plaintiff admitted that he knew the holes were in the truck bed and, in fact for some six to eight trips with the hand buggy he had surrounded or straddled the holes with his buggy. In addition to plaintiff's general and specific knowledge as to the existence of the holes on the truck, the evidence disclosed that Cleve Richardson specifically asked plaintiff whether he saw the hole at the time he was rolling the bales of paper to the front of the truck and that plaintiff replied that he sure did and asked Richardson to go ahead and push on the bale. The accident occurred during daylight hours.

With this testimony, as well as other evidence in the record, it is established that plaintiff knew of the existence and presence of the hole in the floor; that due to its size it was obvious and visible even to those present not upon the bed of the trailer; that plaintiff had passed the hole at least some twelve to sixteen times before the accident; that the top of the trailer was clear of litter and debris; and the light was sufficient to make the alleged defects clearly visible.

Under the circumstances above detailed, plaintiff at least would be considered as a person lawfully upon the premises or property of defendant, which would be his trailer. The general rule is that an owner or occupant of premises is not liable as an insurer of the safety of persons whom he has invited to enter, 38 Am.Jur. 756, 'Negligence', § 96, and 'There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant', 38 Am.Jur. 757, 'Negligence', § 97; and that also '* * * a person upon the property of another, who deliberately chooses to expose himself to danger of a patent character in the condition of the premises, which he could easily avoid with the exercise of care, may not hold the landowner liable for any resulting injuries, whatever may be the nature of his relationship to the landowner. Again, it is a valid defense, in an action brought by an independent contractor's servant against the contractee, that the perils in the conditions by which the injury for which recovery is sought was occasioned were known to, appreciated by, and assumed by the plaintiff.' 38 Am.Jur. 846, 'Negligence', § 171.

These principles were recognized by the Orleans Court of Appeal in Regenbogen v. Southern Shipwrecking Corporation, 41 So.2d 110, 112, in quoting from 45 C.J. Negligence, § 244, wherein it is stated:

"* * * The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger...