Sons v. New Amsterdam Cas. Co.

• Decision Date: 02 May 1966
• Docket Number: No. 2209,2209
• Citation: 186 So.2d 375
• Parties: Leslie SONS v. NEW AMSTERDAM CASUALTY COMPANY and Louis Battistella d/b/a Battistella Marina.
• Court: Court of Appeal of Louisiana — District of US

Page 375

186 So.2d 375

Leslie SONS v. NEW AMSTERDAM CASUALTY COMPANY and Louis Battistella d/b/a Battistella Marina.

No. 2209.

Court of Appeal of Louisiana, Fourth Circuit.

May 2, 1966.

Bernard S. Dolbear, New Orleans, for plaintiff-appellee.

Lemle & Kelleher, Paul B. Deal, New Orleans, for defendants-appellants.

Before SAMUEL, HALL and JANVIER, JJ.

SAMUEL, Judge.

Plaintiff filed this suit for personal injuries sustained by him in a fall from a wharf. The two defendants, the owner of the wharf and his liability insurer, answered denying any fault on their part and alternatively pleading contributory negligence and assumption of the risk on the part of plaintiff. Defendants have appealed from a judgment awarding plaintiff $400 for his injuries and $80.50 for medical expenses.

The accident happened at a marina in Empire, Louisiana, where the defendant-insurer rented dock space to charter boat operators. More particularly insofar as this case is concerned that defendant rented dock space to the operator of the boat Sea Queen. Plaintiff was a member of a group who had chartered the Sea Queen for the purpose of going fishing. Arriving at Empire shortly before 4 a.m., they inquired at the marina office as to the location of the Sea Queen but were unable to find out exactly where the boat was moored.

Plaintiff and two other members of his party then began walking on a canal wharf looking for the Sea Queen. They passed a large, well lighted charter boat, the Miss Mississippi, moored in the canal parallel to the wharf and proceeded into a darker area. The next boat they came to had been backed into a slip, which slip had been cut into the wharf from the canal at an angle, and moored. After passing this boat they came to another boat similarly moored in a similar slip. Plaintiff stepped off the wharf and fell into the slip between the stern of this last mentioned boat and the land end of the slip, sustaining an injury to his ankle.

The trial court judgment is based on a finding that, by reason of inadequate lighting only, the defendant-owner failed to discharge his duty of providing to the plaintiff-invitee a wharf which was reasonably safe and that the plaintiff was not guilty of contributory negligence. We deem it expedient to consider first the plea of contributory negligence. If the record shows there was negligence on the part of plaintiff which contributed proximately to his accident, it becomes unnecessary to determine whether the defendants were guilty of primary negligence, Dyer v. Travelers Insurance Company, La.App., 159 So.2d 788, and cases cited therein.

The only persons who saw the occurrence of the accident were plaintiff and the two members of his party on the wharf with him. Two of these, the plaintiff and one of those two members of his party, appeared as witnesses on behalf of plaintiff and their testimony constitutes all of the evidence contained in the record relative to the manner in which the accident happened.

On this point plaintiff, who was employed as a general foreman of outfitting docks by a shipbuilding concern, testified: The boat occupying the first slip after they had passed the Miss Mississippi had been backed in and moored so that its stern was snug against the land end of the slip. He assumed all the boats in the slips, particularly the one moored in the slip into which he fell,...