Jackson v. Jones

Decision Date14 December 1953
Docket NumberNo. 41138,41138
Citation69 So.2d 729,224 La. 403
PartiesJACKSON v. JONES et al.
CourtLouisiana Supreme Court

Fred G. Benton, Sr., Edward Donald Moseley, Fred G. Benton, Jr., Thomas H. Benton, Baton Rouge, for plaintiff-appellant.

Taylor, Porter, Brooks, Fuller & Phillips, Robert Vandaworker, Baton Rouge, for defendants-respondents.

McCALEB, Justice.

On April 10th, 1950, plaintiff's seven year old child, Jon Judith Jackson, a first grade pupil of North Highlands Public Grade School of Baton Rouge, fell on a pile of lumber which had been stacked on the playground by the defendant, W. R. Jones, a contractor who was engaged in building a gymnasium on the school grounds. As a consequence of the fall, the child's left leg was lacerated by coming in contact with a nail protruding from one of the planks in the pile of lumber.

Alleging, among other things, that the accident is attributable to the negligence of the contractor in stacking lumber containing protruding nails on a children's playground, plaintiff brought this suit, on behalf of the minor, for recovery of $2000 damages against Jones and his liability insurance carrier, Grat American Indemnity Company.

The defendants admitted the accident but denied responsibility therefor, affirmatively asserting that Jones was without fault in the premises and that the child's injuries were due exclusively to her own carelessness as she had been explicitly warned by the school authorities not to go on or near the portion of the schoolyard where Jones was engaged in constructing a gymnasium. And, in the alternative, they pleaded that the child was guilty of contributory negligence.

After hearing evidence on these issues, the district judge exonerated Jones of the charges of negligence holding that the accident was attributable to an intervening cause, i.e., the pushing of the child by a schoolmate and further that she was guilty of contributory negligence in not obeying instructions from the principal of the school to keep away from the construction area. On appeal, the judgment was affirmed by the Court of Appeal, First Circuit. See 61 So.2d 557. We granted certiorari.

The record reveals the following undisputed facts. Jones, having been awarded a contract by the East Baton Rouge Parish School Board for the construction of a gymnasium on the grounds of North Highlands Public Grade School, started operations sometime in September of 1949 and, by April of 1950, had almost completed the building. At that time, his workmen salvaged certain lumber from the job and stacked it on the playground near a wide concrete sidewalk which ran east and west some 60 feet south of the gymnasium. The trial judge estimated from the evidence that the pile of lumber was two feet high, four feet wide and fourteen feet long.

There were almost 1000 pupils in attendance at the school and, of these, about 120 comprised the first grade, in which Jon Judith Jackson was enrolled. On the day of the accident, this first grade class, which is divided into three sections of approximately forty pupils each, was recessed at the noon hour for play in the schoolyard and were placed under the supervision of Mrs. Norma J. Herndon, the teacher of the section to which the Jackson child was assigned. Part of this group, including the Jackson child, became engaged in playing 'follow the leader' and, in pursuing their game, walked or jumped on the pile of lumber. During this maneuver, the Jackson child was pushed by a classmate, causing her to fall on the lumber and suffer an ugly gash on her left leg between the knee and ankle. Mrs. Herndon, who was immediately informed by the children of the occurrence of the accident, went to the assistance of the child and had her carried to the office of the school principal, Mr. Jay Bailey, who brought her to her home. From there, she was taken to Our Lady of the Lake Sanitarium where nine stitches were taken in her leg.

The Court of Appeal found that the case presented three issues for determination----

'(a) Was the defendant contractor guilty of actionable negligence in permitting the lumber to be left unattended and unguarded on the school playground?

(b) If it is held that he was negligent in this respect, was plaintiff's minor child guilty of contributory negligence barring recovery herein?

(c) If the contractor was negligent, is the accident attributable to his fault or was it due to an intervening and unforeseeable cause--the push given the child by one of her playmates which caused her to fall?

After discussion, the Court of Appeal answered each proposition favorably to the defense.

We are unable to subscribe to these rulings under the facts revealed by the record. Considering each of the three questions in its respective order, we entertain no difficulty at the outset in resolving that the contractor was negligent in placing, and in permitting to remain upon the schoolyard unattended and unguarded, a pile of lumber which was inherently dangerous to children by reason of the fact that it contained protruding nails. Jones owed to the children a duty of ordinary care to see that his operations at the school did not visit injury upon them and, indubitably, he could and should have foreseen that the placing of a pile of lumber on or near the playground of the school, would immediately attract their attention and natural curiosity. Of course, if this pile of lumber provided no great hazard to the safety of the children because it was stacked evenly, was only two feet high and did not contain protruding nails, as found by the district judge and the Court of Appeal, there would not be any liability as it is essential, in this type of case (like those falling under the attractive nuisance doctrine), that the offending object be not only tempting and inviting to the child but it must also be inherently dangerous for him to climb or play on. See Tomlinson v. Vicksburg, S. & P. R. Co., 143 La. 641, 79 So. 174 and Annotation on Liability of landowner for injury to or death of child resulting from piled or stacked lumber or other building materials, 28 A.L.R.2d 218-242. Compare Salter v. Zoder, 216 La. 769, 44 So.2d 862.

However, unlike the factual resolutions of the lower courts, we think that the evidence in this case clearly justifies a ruling that the lumber contained protruding nails and it was, therefore, inherently dangerous to children.1 Hence, Jones was derelict in permitting it to remain unguarded on the playground--unless it be that he was legally excused from fault by other measures which he claims to have provided.

The Court of Appeal thought that Jones had done all that was required of him because the evidence shows that he conferred with the principal of the school, at the time he undertook performance of his contract, respecting the necessity of suitable enclosures for the places used for the storing of building material; that the principal was of the opinion that barricades would probably increase the hazard as there is a tendency for small children to climb over them in order to investigate that which is beyond their reach and that, therefore, it was agreed that it would suffice for the principal to give definite instructions to the pupils that they should keep away from the building area. The court said that, since these instructions were given, it would be unreasonable to conclude that Jones was negligent.

We think that this holding is erroneous. The fact that Jones and the principal agreed that the use of barriers would not reduce the hazard caused by the storing of materials, inherently dangerous to...

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  • State v. Straughan
    • United States
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    • 26 March 1956
    ...the Parish of Orleans for consideration and determination of the quantum of damages to which plaintiff is entitled. See Jackson v. Jones, 224 La. 403, 69 So.2d 729, and authorities therein cited. For the reasons assigned, Mrs. Lillian Wolff Thomas is substituted as party plaintiff in her ca......
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