Kramer v. Etie

• Decision Date: 15 July 1963
• Docket Number: No. 891,891
• Citation: 155 So.2d 478
• Parties: Myrtle Weaver KRAMER, Plaintiff-Appellant, v. Alba J. ETIE, Sr., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 478

155 So.2d 478

Myrtle Weaver KRAMER, Plaintiff-Appellant, v. Alba J. ETIE, Sr., et al., Defendants-Appellees.

No. 891.

Court of Appeal of Louisiana, Third Circuit.

July 15, 1963.

Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellant.

Cunningham & Cunningham, by W. Peyton Cunningham, Jr., Natchitoches, for defendants-third party defendants-appellees. Gahagan & Gahagan, by Marvin F. Gahagan, Natchitoches, for defendants-third party plaintiffs-appellees.

Before TATE, FRUGE , and HOOD, JJ.

FRUGE , Judge.

Plaintiff instituted this suit against Travelers Insurance Company, liability insurer of L. H. Johnson, seeking to recover damages in tort for an injury to her right great toe allegedly caused by the negligence of an employee of the defendant's insured, L. J. Johnson Wholesale Company. Additionally, plaintiff seeks to recover workmen's compensation benefits from her employer, Alba J. Etie, Sr., for the same injury. The defendant, Alba J. Etie, Sr., filed a third party demand against Travelers Insurance Company in which it contends that the injuries to plaintiff were caused by the negligence of the employee of L. H. Johnson Wholesale Company and seeking judgment against Travelers Insurance Company, as the responsible third party, in the event a compensation judgment was rendered on that portion of plaintiff's demand. The trial court rejected both of plaintiff's demands, and she has appealed from that judgment.

Although plaintiff disputes certain inferences drawn by the trial judge, there is no disagreement as to the facts surrounding the accident sued upon. With the approval of both defendants, the trial judge adopted plaintiff's brief, insofar as these facts are concerned, and since plaintiff's brief accurately and succinctly sets forth these facts, we quote in extenso from the trial judge's written reasons, as follows:

'On February 2, 1961, while carrying out the duties of her employment as a waitress at the Towne House Restaurant in Natchitoches the plaintiff, Myrtle Weaver Kramer, sustained an injury to her right foot when she accidently struck a metal box which had been placed in one of the aisles of the restaurant by an employee of L. H. Johnson Wholesale Company of Natchitoches, Louisiana. At the time of the occurrence of the accident Mrs. Kramer was busy waiting on a private party in the private dining-room of the restaurant, and she was going back and forth using the regular route or access to the private dining room which was a passageway or aisle approximately four or five feet in width and on each side of which were located the restaurant tables in the main dining room where customers were served. The employee of L. H. Johnson Wholesale Company was servicing a vending machine owned by his employer and the metal box that he had with him, and which he placed in such a manner as to protrude into the aisle, was described as about the size and shape of an ordinary fishing tackle box and was believed by Mrs. Kramer to the the box that receipts or money from the vending machine was carried in.

When the described accident occurred Mrs. Kramer was carrying a large serving tray which was loaded with coffee cups that she was going to use to serve the guests of the restaurant in the private dining room. The original injury, though perhaps quite painful, would have been probably of little consequence except for the fact that as a result of the force of the blow, her right great toe nail was driven backwards into the flesh surrounding the nail, and as a result the toe became seriously infected and Mrs. Kramer developed blood poisoning and as a result was required to submit to minor surgery.'

In addition to the facts as stated above, it should be noted that the tray, which plaintiff was carrying, was about two feet long and one foot in width.

Plaintiff's claim in tort.

The trial judge held, under the above mentioned facts, that the employee of Johnson was negligent in placing the metal cash box in the aisle, but denied recovery because of plaintiff's contributory negligence. Insofar as plaintiff's tort claim is concerned these are the sole issues before us.

In Larned v. Wallace, La.App., 146 So.2d 434, 437, this court defined 'negligence as conduct creating an unreasonable risk to others.' Therein we quoted with approval from 65 C.J.S. Negligence, § 1, page 313, as follows:

'It has been held that negligence does not exist unless there is a reasonable likelihood of danger as a consequence of the act complained of, and it must be measured in the light of some danger that is reasonably to be anticipated. The duty to use care is based on the knowledge of danger, and negligence or want of ordinary care includes reasonable anticipation of harm. So negligence has been defined as conduct which creates an undue risk of harm or injury to others; the failure to use such care as is necessary to avoid a danger which should and could have been anticipated, by reason of which plaintiff has suffered injury.'

Similarly, in Brown v. Liberty Mutual Ins. Co., 234 La. 860, 101 So.2d 696, our Supreme Court announced:

'Liability for damages under Article 2315 of the Civil Code is founded upon fault and whether or not fault exists depends upon the facts and circumstances presented in each particular case. In determining fault, a common-sense test is to be applied--that is--how would a reasonably prudent man have acted or what precautions would he have taken if faced with similar conditions and circumstances? The degree of care to be exercised must always be commensurate with the foreseeable dangers confronting the alleged wrongdoer.'

In the instant case, we think it obvious that the employee of L. H. Johnson created a dangerous situation by placing a metal box in a travelled passageway, and that he should have reasonably foreseen the danger which caused plaintiff's injuries. However, as held by the trial judge, we think that plaintiff's recovery is barred by her own contributory negligence.

It was recently enunciated by this court in the case of Sloan v. Flack, La.App., 150 So.2d 646, 647, that:

"Negligence involves conduct which is fraught with unreasonable likelihood of harm to Others. Contributory negligence involves such likelihood of harm to Oneself or to One's own interests', 2 Harper & James, The Law of Torts (1956), Section 22.10 (p. 1227). 'Negligence as it is commonly understood is conduct which creates an undue risk of harm to Others. Contributory negligence is conduct which involves an undue risk of harm to The actor himself.' Prosser on Torts (2nd Ed., 1955), Section 51, p. 285. (Italics Supplied). 'The distinction lies in that negligence involves any risk to another, whereas contributory negligence involves a risk of injury to the one injured', 65 C.J.S. Negligence § 116, pp. 707--708. (Italics Supplied).

"Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of duty which the law imposes on persons to protect Themselves from injury', 65 C.J.S. Negligence § 116, p. 706. (Italics supplied.) 'Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to which he is required to conform For his own protection. In general, it resembles negligence, except that the element of duty to another does not enter', Prosser, Section 51, p. 282. (Italics Supplied).'

Counsel for plaintiff urges, correctly we think, that no one is contributorily, negligent simply because he fails to anticipate the negligence of another. However, notwithstanding that one may assume that others will not subject him to unreasonable risks of injury, it is well established that a person cannot recover for injuries caused by his own failure to see a danger which would have been apparent to a reasonably prudent and observant person, and which could have been recognized by the exercise of reasonable care. Jumonville v. Calogne, La.App., 141 So.2d 430; Fradger v. Shaffer-Stein Corp., La.App., 73 So.2d 612.

In the instant case, the evidence shows that the metal cash box was in the aisle and clearly visible. True, plaintiff was carrying a tray loaded with coffe cups. However, considering the size of the tray, her view of the aisle was far from being obstructed. Additionally, she knew that the employee of L. H. Johnson was servicing a vending machine adjacent to the very aisle through which she was passing. While she...