Gaines v. Teche Lines, Inc.

• Decision Date: 05 October 1937
• Docket Number: 1740
• Citation: 176 So. 134
• Court: Court of Appeal of Louisiana — District of US
• Parties: GAINES v. TECHE LINES, Inc

176 So. 134

GAINES v. TECHE LINES, Inc

No. 1740

Court of Appeal of Louisiana, First Circuit.

October 5, 1937

Rehearing denied Nov. 6, 1937. Writ of certiorari denied Nov 29, 1937.

Porteous Johnson & Humphrey, of New Orleans, for appellant.

Frank B. Ellis, of Covington, for appellee.

OPINION

DORE, Judge.

The suit is for damages in the sum of $ 2,183 for personal injuries which plaintiff claims to have received on September 12, 1936, at Slidell, when a trunk which plaintiff was helping to load on the bus fell on him. The cause of the fall of the trunk was the breaking of the leather handle when the truck driver attempted to pull the trunk up on top of the bus by this handle, thereby causing the trunk to fall on plaintiff, who was standing under the trunk helping to load it. The plaintiff had purchased a ticket for himself and daughter to Baton Rouge, the trunk being part of the baggage that was checked with these two passenger tickets.

The defendant and its agent, the bus driver, are charged with negligence in four particulars: (1) In failing to furnish sufficient help and proper safeguards in loading and handling the trunk; (2) the failure of the truck driver to grasp the sides and bottom of the trunk with both hands and in failing to use the strong rope with which the trunk was tied; (3) in forcefully jerking said trunk in an effort to swing it onto the top of the bus; (4) in failing to realize that a worn handle on a cheap trunk securely tied with a rope would not support the weight of the trunk, when the trunk was jerked in a forceful manner as aforesaid.

Defendant denies that it was guilty of any negligence. It admits that plaintiff purchased the tickets for himself and daughter and that it checked said trunk and was bound to transport same under said tickets. Defendant further alleges that plaintiff volunteered to assist the driver in loading the trunk on top of the bus; that the driver was on top of the bus pulling up the trunk, and plaintiff was on the ground pushing it up, and when plaintiff turned loose the trunk, the handle by which the driver was pulling it up broke and the trunk fell on plaintiff; that plaintiff assumed the risk and knew or should have known as the owner of the trunk that the handles were defective, or should have warned the bus driver not to use the handles. Defendant pleads, in the alternative, contributory negligence on the part of the plaintiff.

Judgment was rendered in favor of the plaintiff in the sum of $ 535, interest and costs. Defendant has appealed, and plaintiff has answered the appeal and asks that the amount of damages be increased to the sum claimed in the petition.

There is a dispute in the testimony as to whether the bus driver requested plaintiff to help load the trunk or whether plaintiff volunteered his services. This question is of no great importance, as it is a fact that the bus driver accepted the help of the plaintiff in the discharge of a duty placed on the defendant, i. e., the safe loading of the trunk on the bus. Plaintiff is in the same situation in this respect as he would have been had the driver requested him to help load the trunk.

The trunk was securely tied around the ends and sides with a grass rope. The trunk weighed from 100 to 150 pounds. It had to be lifted onto the top of the bus some seven or eight feet from the ground. The plaintiff and the driver lifted the trunk about halfway up and rested or balanced it on a rod or sign at the back of the bus. The driver then got on top of the bus to pull up the trunk, during which time plaintiff and a bystander whom plaintiff had called held the trunk until the driver could pull it from the top of the bus. The trunk had such leather handles on the ends as are usually found on fairly cheap trunks. So far as the record shows, there was nothing...