Lester v. Texas & P. Ry. Co.

• Decision Date: 01 July 1963
• Docket Number: No. 5937,5937
• Citation: 155 So.2d 465
• Court: Court of Appeal of Louisiana — District of US
• Parties: Mrs. Mary F. LESTER et al., Plaintiffs-Appellants, v. The TEXAS & PACIFIC RAILWAY COMPANY, Defendant-Appellee.

Page 465

155 So.2d 465

Mrs. Mary F. LESTER et al., Plaintiffs-Appellants, v. The TEXAS & PACIFIC RAILWAY COMPANY, Defendant-Appellee.

No. 5937.

Court of Appeal of Louisiana, First Circuit.

July 1, 1963.

Kantrow, Spaht & Kleinpeter, by Carlos G. Spaht, Baton Rouge, for appellants.

Breazeale, Sachse & Wilson, by H. Payne Breazeale, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

ELLIS, Judge.

Mrs. Mary F. Lester filed this proceeding seeking damages for severe bodily injuries sustained by her in a fall at the railway depot owned and operated by the defendant railroad at Addis, Louisiana on May 29, 1960. Mr. Lester joined his wife to recover the community medical expenses resulting from the injury. The trial court gave judgment for the defendant, dismissing plaintiffs' suit at their costs and plaintiffs have prosecuted this appeal.

The facts disclose that the Lesters arrived at the Addis station about 5:30 P.M. to meet Mrs. Lester's sister who was to arrive from El Paso on the 6:00 P.M. train. The Lesters entered the station waiting room to enjoy the air conditioning and while they waited, they talked with the ticket agent about rates for twenty or twenty-five minutes. Realizing that the train was almost due, they decided to wait for it outside and thus Mr. Lester attempted to leave the waiting room through the only available door.

The entrance and exit to this station is through a screen door which swings to the outside and through a heavy inner door which swings to the inside. Both doors are suspended from the same side of the door frame, and both doors are equipped with automatic pressure devices so that they will close themselves.

The top step is about two inches below the threshold. There is a 7 1/2 inch drop to the lower step and another 7 1/2 inch drop to the ground level. The top step is 12 1/4 inches wide and 48 inches long, extending beyond each side of the door. There is no landing on the outside on a level with the floor of the waiting room. A person leaving the waiting room steps out onto the top cement step, over which the screen door opens.

There were no eye witnesses to the accident other than the plaintiffs themselves. Mr. Lester testified that he opened the inner door and held it for his wife and that she pushed the outer screen door open herself. He only saw her 'stumble' and could not state what caused his wife to fall.

When asked what caused her to fall, Mrs. Lester testified that the top step was not wide enough for her to put her foot on and that her right heel had caught on the threshold and caused her to trip and miss the narrow step. She complained in her testimony that the top step was so narrow she could not get her shoe on it and that there was such a distance between the top step and 'the other one' that she just fell.

The defendants successfully proved through the testimony of their employees Ducote, Hebert and Bossier that, at the time of the accident, there were no defects in the doorway which resulted from wear and tear and that the doorway was in an adequate state of repair. It was further shown that there had been no prior accidents involving these steps, though the station had been in operation for twelve years. No evidence was offered by the plaintiffs to contradict these facts.

Therefore, if plaintiff is to recover it is necessary that she show that the architectural design of the exit constituted continuing negligence per se. The defendant has denied that the exit design is improper and has alternatively alleged contributory negligence as a bar to recovery.

We are of the opinion that the basic design of the exit did not constitute negligence per se on the part of the railroad.

The owner of a building is required to exercise only ordinary care toward persons lawfully on his premises and is not an insurer. Grelle v. Patecek, La.App., 74 So.2d 349, and Lawson v. D. H. Holmes Co., Ltd., La.App., 200 So. 163.

Plaintiff relies on alleged violations of the National Building Code and the Building Exits Code to show negligence. These codes require that there be a landing at the top of stairways and steps at least equal in width to the swing of any door opening over them and that the landing be on a level with the floor on the opposite side of the door. We are convinced that these codes were not legally in effect in Addis at the time the depot was constructed. No plans were presented to the State Fire Marshall and no building permits of any kind were required. The codes are, however, helpful to the court as an indication of the recommended building safety standards in current use in the building and architectural professions.

Architect Urban, who designed the building, and contractors Eaton and Marix testified for the defendant to the effect that, in their opinion, the code provisions above mentioned did not apply to a screen door which permitted one to observe the steps through the door itself.

There are a number of Louisiana cases dealing with situations of this type, all holding that variations in floor level are not per se negligence, especially if the plaintiff knew of the variation. Alexander v. General Accident Fire & Life Assurance Corporation, La.App., 98 So.2d 730; Van v. Teche Lines, Inc., La.App., 164 So. 267; Steer v. Orleans Parish School Board, La.App., 92 So.2d 128; Burdeaux et al. v. Montgomery Ward & Co., La.App., 192 So. 728; and Baker v. Hartford Accident & Indemnity Co., La.App., 136 So.2d 828.

In the case of Grigsby v. Morgan & Lindsey, La.App., 148 So. 506, the court found that the defect of construction was an improperly installed floor ventilator which left a small hole that had become filled with soft trash. The plaintiff's heel caught in the hole and tripped her as she walked. Recovery was allowed and we are in accord with that holding, but we do not feel that that case is authority for the plaintiff's contention that the plaintiff is relieved of a duty to detect conditions which are obviously unsafe and of which she had actual knowledge.

Plaintiff seeks to rely on several cases from other jurisdictions which under similar facts have held that certain types of steps were negligently designed. In particular is Skidd v. Quattrochi, 304 Mass. 438, 23 N.E.2d 1009 (1929) where the plaintiff looked through the window to one side of the door and saw automobiles for sale; then looked through the window on the other side of the door and saw girls working; then opened the door and fell down a flight of stairs. In that case the stairway was concealed and the court said, 23 N.E.2d at page 1011:

'The evidence discloses that the defendant left the door in question, which, as before pointed out, the plaintiff Could reasonably assume led to the office and showroom, unlocked and unguarded. The stairway was steep and made dangerous by the absence of any landing at its top.' (emphasis ours.)

There are also several cases in Louisiana dealing with steps and stairways where the plaintiff has alleged negligence per se based on the design.

For example, in Gosselin v. Stillwell, La.App., 78 So.2d 235, an employee who was familiar with the stairway on which she...