Hendricks v. Maison Blanche Co.

• Citation: 5 La.App. 410
• Decision Date: 17 January 1927
• Docket Number: 10,169
• Court: Court of Appeal of Louisiana (US)
• Parties: HENDRICKS, Appellant, v. MAISON BLANCHE CO

5 La.App. 410

HENDRICKS, Appellant, v. MAISON BLANCHE CO

No. 10,169

Court of Appeals of Louisiana, Orleans

January 17, 1927

Appeal from Civil District Court. Hon. Wm. H. Byrnes, Jr., Judge.

Action by Mrs. M. Hendricks against Maison Blanche Company.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

Jos. H Brewer, of New Orleans, attorney for plaintiff, appellant.

Gordon Boswell, M. B. Williams, of New Orleans, attorneys for defendant, appellee.

OPINION

CLAIBORNE, J.

This is a damage suit for falling from a shoeshine stand.

The plaintiff made the following allegations:

That she is "above the full age of majority"; "that on March 15, 1924, she entered the department store operated by defendant herein for the purpose of making certain purchases and that while therein she noticed a shoeshine parlor or stand being operated by the defendant herein, said shoeshine parlor or stand being open to the public accordingly petitioner mounted the shoeshine parlor or stand which extends upwards, the seat being several feet above the ordinary floor level".

"Your petitioner alleges that she instructed one of the employees of the defendant herein to shine her shoes and that the employee of the defendant carried out her instructions, and a little later, having been told by the employee assigned to the shining of shoes in this department that the shining of said shoes was completed, your petitioner deeming it safe to get down from said stand proceeded to do so, when suddenly and without any warning whatsoever or negligence on her part she fell violently to the floor and sustained the following damages: * * * Your petitioner avers that the said accident was caused solely by the negligence of the defendant's employee assigned to said shoe-shine parlor or stand, first, in not aiding and assisting plaintiff from the said stand, and second, by the negligence of the defendant in not providing a more suitable and safer stand for the shining of shoes; third, that she used due care and diligence in getting off of said stand, but that in spite of her care and diligence she fell and was injured."

She prayed for $ 40,375 damages.

The defendant excepted that plaintiff's "petition does not recite, set out, or disclose a right or cause of action".

The exception was sustained and the suit dismissed. Plaintiff appealed.

We are of the opinion that the judgment is correct. The negligence charged to the defendant is twofold:

1st. That defendant's employee did not assist plaintiff from the stand.

There is no allegation that assistance was necessary, or customary, or that plaintiff asked it and was refused. On the contrary, the plaintiff alleged that she was "above the full age of majority". The presumption arises that she was able to take care of herself.

It is not ordinarily the duty of a carrier to assist a passenger in alighting in the absence of notice that he needed assistance.

"A mere general allegation that it is the duty of a conductor to assist a female passenger in alighting from a car is subject to a special demurer." 80 S.E. 626; 2 L. R. A. Digest 1282; Hutchinson on Carriers, Sec. 1127; 10 C. J. 830.

"If, owing to physical peculiarities of the plaintiff it was unsafe for her to use the appliances (steps of a street car) which are altogether adequate for ordinary passengers, she ought to have called the attention of the employee of the defendant company to that fact and asked for assistance. It is not, in such circumstances, negligence for the employees of the company to fail to volunteer their assistance." 71 Pa.Super. 103; 24 N. C. C. A. 621. See also Freeman vs. N. O. Public Service Inc., 1 La.App. 600; Bass vs. Ill. C. Ry. Co., 4 La.App. 175.

2nd. There was no allegation that the "stand was defective in its construction", except that it "stands several feet above the floor level," nor that it was constructed in a manner different from or more dangerous than other stands. At any rate that danger, if it was one, was apparent, and which plaintiff, by due care, could have guarded against. The defendant was bound only to use ordinary care in furnishing the stand to its customers. Yet where employees have been injured under similar circumstances the rule is that masters are bound only to furnish them such places or appliances as are reasonably safe and are in general use. 26 Cyc. 1107; Jones vs. Jahncke Service, 3 La.App. 270.

In the case of Flynn vs. Sporl, 3 Orleans App. 441, it was so decided. The plaintiff was an employee; she slipped upon the steps and alleged that there was a defect in their construction. The court said:

"The alleged defect was apparent and the plaintiff assumed the risk; the employer was bound to give only the reasonable safe appliances in accordance with the nature, custom, necessities of the business."

In support of its opinion the court cited Carey vs. Sellers, 41 La.Ann. 500, 6 So. 813, in which it was said:

"To maintain an action by a servant against a master for an injury resulting from defective buildings, premises or appliances, two elements must concur, viz.:

"Fault or knowledge on the part of the master; innocence of fault or ignorance of the danger on the part of the servant."

"However gross the fault of the master in subjecting the servant to risk from such causes, yet when the servant knows the defects and danger and still knowingly and without protest consents to incur the risk to which he is exposed thereby, he is deemed to assume such risk and to waive any claim for damages against the master for injury resulting therefrom." 1 Labatt S. 274; ...