Fruge v. Trahan

• Decision Date: 11 January 1967
• Docket Number: No. 1874,1874
• Court: Court of Appeal of Louisiana — District of US
• Parties: Goldman FRUGE, Plaintiff-Appellant, v. Warren O. TRAHAN and the Fidelity and Casualty Company of New York, Defendants-Appellees.

Page 478

194 So.2d 478

Goldman FRUGE, Plaintiff-Appellant, v. Warren O. TRAHAN and the Fidelity and Casualty Company of New York, Defendants-Appellees.

No. 1874.

Court of Appeal of Louisiana, Third Circuit.

Jan. 11, 1967.

Rehearing Denied Feb. 15, 1967.

Larry A. Roach, Lake Charles, for plaintiff-appellant.

Stockwell, St. Dizier, Sievert & Viccellio, by Robert W. Clements, Lake Charles, for defendants-appellees.

Before SAVOY, TATE and HOOD, JJ.

HOOD, Judge.

Plaintiff, Goldman Fruge, claims damages for personal injuries sustained by him as a result of an accident which occurred on May 18, 1964. The suit was instituted against Warren O. Trahan and his liability insurer, The Fidelity and Casualty Company of New York. Judgment on the merits was rendered by the trial court in favor of defendant, and plaintiff has appealed.

On the day the accident occurred, plaintiff was working as a foreman for R. D. Heidt Construction Compamy, Inc., and was in charge of one of their road surfacing jobs in Cameron Parish. His crew was in the process of spreading shell for use on the shoulders of a newly surfaced asphalt road. Defendant, Warren O. Trahan, had a subcontract with Heidt Construction Company to haul shell to the job site for use on that highway. Trahan owned a 1956 Ford dump truck which was being used on this job. At the time of the accident Trahan's truck was being driven by his 17-year-old son, Ernest O. Trahan.

A number of dump trucks were being used to haul shell for this resurfacing project. These trucks arrived at the job site one at a time, and after each truck was in proper position on the highway plaintiff, as foreman, customarily stood alongside the cab of the truck and gave the command for the driver to start moving his truck forward. After the truck began to move forward, plaintiff would pull down the tail gate lever on the truck, causing the tail gate to open and allowing the shell to fall to the road surface behind the moving truck. The tail gate lever is located near the left front corner of the bed of each dump truck, and a short rope is attached to the end of each such lever. The purpose of the rope was to enable the driver to reach back and perate the tail gate lever while inside the cab of the truck. Although that was the sole purpose of the rope, it nevertheless was used by others, such as plaintiff in this suit, who needed to trip the tail gate while outside the truck.

After the tail gate of each truck was tripped, plaintiff ordinarily ran alongside the truck as it was moving, or sometimes he rode on the running board or gasoline saddle tank of the truck, and while so doing he would instruct the driver as to whether to drive faster or slower in order that the shell would be spread evenly. A truckload of shell had to be spread over a distance of approximately 400 feet, so plaintiff usually ran or rode this entire distance while each truck dumped its load of shell. Sometimes, while running or riding, he would continue to hold the rope which was attached to the tail gate lever, although it was not necessary for him to do so, since the tail gate remained open after the lever had once been pulled.

Trahan's truck was equipped with an hydraulic lift bed and with a tail gate lever, this lever being located near the left front corner of the bed of the truck. A rope, about one-half inch in diameter and 14 inches long, was attached to the end of the lever, and usually the person who operated this lever would do so by holding and pulling down on that rope. The running board on the Trahan truck was constructed so that a person could not stand and ride on it while the door of the cab was closed. There was a large gasoline saddle tank attached to the left side of this truck, immediately behind the cab and near the left front corner of the bed, and photographs in the record indicate to us that this tank was of such size and location that a person could ride on it as the truck was moving.

At about 1:00 p.m. on the date of the accident, young Trahan drove his father's dump truck, loaded with six cubic yards of shell, to a designated point at the job site on the highway. Fruge then gave him the order to begin moving the truck forward, and shortly thereafter Fruge tripped the tail gate. After the truck had moved forward 25 to 50 feet, it was determined that the shell was not being spread evenly, so at Fruge's direction the truck was stopped and the tail gate chains regulating the flow of shell were adjusted. The bed of the truck was re-elevated about half-way up, and Fruge then ordered the driver to 'take off.' Plaintiff ran alongside the truck for several feet after it began moving forward before he pulled on the rope which was attached to the tail gate lever. After pulling on the rope and tripping the tail gate, however, plaintiff either fell or was 'jerked up' by the rope and his body struck the left side of the truck. There is a conflict in the evidence as to whether the accident occurred immediately after the tail gate was tripped, or whether the truck continued to travel for some distance after the lever had been pulled and before the accident occurred. At some time after the tail gate was tripped, however, the rope which plaintiff had been holding broke, and Fruge fell on the gasoline saddle tank of the truck. He attempted to cling to this tank, but was unable to do so and he then fell to the ground in front of the rear wheels of the truck. The truck was brought to a stop after the wheels had rolled partially over his right leg and thigh. He sustained serious injuries as a result of this accident.

Plaintiff contends that the driver of the truck was negligent in failing to keep the vehicle under proper control and in failing to maintain a proper lookout. He also contends that the owner of the truck was negligent in failing to provide a qualified operator for that vehicle, in failing to maintain a properly equipped truck, and in failing to warn plaintiff of the hazardous condition of that vehicle. Alternatively, he argues that he is entitled to recover under the doctrine of 'res ipsa loquitur.' Defendants deny that the driver of the truck was negligent, or that there were any defects in the truck which could be related to the accident. They contend that the doctrine of res ipsa loquitur is not applicable here. And, alternatively, they plead that plaintiff is barred from recovery because of his own contributory negligence and because he assumed the risk of injury in running alongside the truck while holding the rope on the tail gate lever.

The trial judge concluded that there were no defects in the truck which in any way contributed to the accident, and that the doctrine of res ipsa loquitur is not applicable here. He made no determination as to whether the driver of the truck was negligent, but he held that plaintiff is barred from recovery because he 'voluntarily exposed himself to the dangers that existed and having assumed the risk thereof would be barred from recovery by reason of his contributory negligence.' Judgment thus was rendered rejecting plaintiff's demands.

We will consider first the question of whether the driver of the truck was negligent. Young Trahan was 17 years of age and he did not have a chauffeur's license at the time the accident occurred. Plaintiff, among other arguments, contends that the defendants were negligent in providing an inexperienced and unqualified driver for that vehicle. The evidence shows that in spite of the boy's age, he had been driving and operating a dump truck for some time. He, in fact, had worked for Fruge on other road jobs before this one, using the same truck, and according to Fruge he had done the work right. Regardless of his age or past experience, however, we agree with the trial judge in his conclusion that 'it was not shown that the driver's age or inexperience gave rise to any act of omission or commission that was the proximate cause of the accident.' The evidence shows that the driver complied strictly with Fruge's orders in starting his truck shortly before the accident occurred, and that he was driving the truck at the speed indicated by Fruge when the tail gate lever was pulled and when the accident occurred. Trahan estimated his speed at 15 miles per hour, while others stated that the speed was such that Fruge had to travel at a fast walk or a fast trot to keep up with the truck. Immediately after plaintiff was thrown or fell against the side of the truck, however, the brakes of that vehicle were applied, and the truck was brought to a stop within ten feet thereafter. We find nothing in the evidence which tends to show that the driver of the truck failed to maintain a proper lookout or failed to keep the truck under proper control. And we note that in a deposition of plaintiff taken prior to the trial, when asked whether the driver was doing anything wrong in operating the truck, Fruge replied, 'I don't think he done anything wrong.' The evidence, therefore, fails to show that the driver of the truck was negligent.

The next issue presented is whether there were defects in the truck which caused or contributed to the accident. Plaint...