Palermo v. Orleans Ice Mfg. Co

• Citation: 58 So. 589,130 La. 833
• Decision Date: 06 May 1912
• Docket Number: 18,959
• Court: Supreme Court of Louisiana
• Parties: PALERMO v. ORLEANS ICE MFG. CO

58 So. 589

130 La. 833

PALERMO v. ORLEANS ICE MFG. CO

No. 18,959

Supreme Court of Louisiana

May 6, 1912

Appeal from Civil District Court, Parish of Orleans; Thos. C. W Ellis, Judge.

Action by Paul Palermo against the Orleans Ice Manufacturing Company. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Foster Milling, Brian & Saal, for appellant.

Philip J. Patorno, for appellee.

OPINION

LAND J.

This is a suit brought by the father and natural tutor to recover damages for personal injuries sustained by his minor son, Pascal, a child four years of age at the time of the accident.

On March 25, 1909, Pascal fell into an open gutter on Hospital street, which at the time contained hot water which had flowed from the plant of the defendant company located on the same street. The boy was scalded and burned on the left side of his body from his neck downwards.

The first defense is that one of the bolts of the defendant's boiler blew out, and the hot water escaped through the opening and flowed into the gutter, without fault or negligence on the part of the defendant. The next defense is that the defendant used due diligence in warning children in the street of the presence of hot water in the gutters, and lastly contributory negligence is pleaded.

There was judgment in favor of the defendant, and the plaintiff has appealed.

In his opinion the judge a quo said:

"The proof is that defendants, in order to keep the hot water of their ice factory out of the street gutter, had installed a large underground pipe for the harmless escape of the hot water, long prior to this accident, and that on the day of the child's injury a tube of their boiler, without any negligence on defendant's part, had exploded, and from its broken or blowed out part the hot water ran into the street gutter. It also appears that at once defendants turned a stream of cold water into the escaping hot water to cool it, and make it harmless, and that defendants also put a dam across the gutter to force the water towards the swamp, and also stationed a man at the gutter to warn the children of a nearby school, who left his post after the children were called into the schoolhouse, and also diligently went to work to repair the boiler and stop the escaping hot water.

"I find no negligence on defendant's part in all this; but even if there had been, how could defendants, with the accident to the boiler happening all of a sudden, anticipate, or expect that plaintiff's child of tender years would be allowed by its parents to wander on the streets, or that it would manage to get into the street gutter?"

The law of the case is thus stated by the judge a quo:

"That doctrine is that in order to warrant the finding that negligence is the proximate cause of the injury, it must appear that the injury was the natural consequence of the negligence, and that the defendants ought to have anticipated or foreseen, or expected it, in the light of the attending circumstances."

The statement of facts made by the judge a quo shows that, when the hot water commenced flowing into the gutter, the defendant's agents did anticipate...