Tolle v. Higgins Industries
| Decision Date | 26 May 1947 |
| Docket Number | 38302. |
| Citation | 31 So.2d 730,212 La. 173 |
| Court | Louisiana Supreme Court |
| Parties | TOLLE v. HIGGINS INDUSTRIES, Inc., et al. |
Rehearing Denied June 16, 1947.
W. S. Rowned, of Hammond, S. S. Reid. of Amite, and Reid & Reid, of Hammond, for plaintiff-applicant.
Carroll Buck, of Amite, and Montgomery, Fenner & Brown, of New Orleans, for defendants and respondents.
The plaintiff, Mrs. Mary Hays Tolle, individually and as natural tutrix of her minor daughter, Mary Ann Tolle, brought suit against the defendants, the Higgins Industries, Inc., Higgins Plastics, Inc., and the Maryland Casualty Company, insurer seeking to recover damages in the amount of $45,000 for herself and the amount of $15,000 for the use and benefit of her minor daughter. The suit is based on the ground that the death of Albert Elmer Tolle, the plaintiff's husband, was occasioned by the negligent operation of the defendant's tug or towboat, 'Oxduzer,' which was pushing a barge of logs in such a manner as to cause dangerous swells that capsized the skiff or rowboat in which Tolle and his companion Roy Ridnour, were returning from a fishing trip resulting in the death of Tolle by drowning. The defendant denied that there was any negligence in the operation of the towboat and in the alternative interposed a plea of contributory negligence on the part of the deceased.
Upon trial the lower court gave judgment awarding the plaintiff $17,500 for the damages suffered by her and $9,000 for the damage occasioned her minor daughter. On appeal, the First Circuit Court of Appeal reversed the judgment of the lower court and dismissed the plaintiff's suit. One of the members of that court vigorously dissented to the holding. The plaintiff applied for and obtained a review. The matter has been submitted for our determination.
It appears that the judgment of the Court of Appeal is based on the ground that the plaintiff failed to carry the burden of proof resting on her to show that the death of Tolle was caused through any negligence or fault on the part of the operators of the towboat and barge. The Court of Appeal were of the further opinion that if there was any negligence on the part of the operators of the towboat or barge that the contributory negligence of Tolle barred recovery.
On August 30, 1944, Roy Ridnour and the deceased engaged a skiff or rowboat at the Rome's Ferry Bridge on Tickfaw River in Livingston Parish to go fishing. They attached a 4 1/2 horse power outboard motor to the skiff to propel it. The skiff was equipped with the usual safety appliances, including life preservers. It was painted orange in color and was 14 feet long by 3 or 3 1/2 feet wide, with a well in the center. After they obtained the skiff, they proceeded down Tickfaw River fishing to a point about 2 1/2 or 3 miles below the bridge. Sometime around 3:30 in the afternoon, they decided to return to the bridge because it had started raining. When they had reached a point about 2 1/2 miles below the bridge, they attempted to pass the 'Oxduzer,' a towboat that was coming down the river, pushing a barge 28 feet wide by 100 feet long, loaded with some 300 logs. The logs were stacked so high on the barge that it was impossible for the operator of the towboat to see ahead of him or the course he was pursuing. Ridnour and the deceased attempted to pass the towboat on its west side approximately 150 feet from the barge and were capsized by the swells or displacement of water caused by the barge or the propellor of the towboat. Ridnour swam safely to the bank. Tolle, who was dazed because of an injury received to his head by the capsizing of the boat, drowned.
Ridnour was the only eyewitness who testified in the case. The operator of the towboat and the deckhand, who was supposed to be on top of the logs as a lookout, did not see the skiff capsize or the drowning of Tolle. Their testimony is negative in character. The defendants produced witnesses who testified to experiments performed in the Industrial Canal which it claims produces a stronger wash on account of the canal being narrower than the Tickfaw River.
We can not agree with the Court of Appeal in not giving full credence to Ridnour's testimony. He was the only eyewitness and a man highly respected in the community in which he lived. He held the position of manager of the Southeast Division of the Louisiana Power and Light Company. The fact that he was a friend of the deceased does not, in our opinion, weaken his testimony. There was undoubtedly gross negligence on the part of the operator of the towboat and the deckhand. While the operator of the towboat and the deckhand both testified that the deckhand was on top of the load of logs as a lookout, yet it is seemingly strange that they did not see the skiff capsize or Tolle drown.
The evidence shows that Tolle was drowned. His body was recovered near the point that Ridnour testified that he was drowned. There is nothing in the evidence whatsoever to show that Tolle was drowned in any other way than that testified by Ridnour. The defendants' deckhand admitted that when they arrived at Manshac, some 3 1/2 hours later, that he was informed of the drowning of Tolle. This, in our opinion, shows that the news of Tolle's drowning had travelled some distance and the only reasonable conclusion is that Ridnour, as soon as he reached the bridge, reported the manner of the drowning. This, in our opinion, strongly corroborates the testimony given by Ridnour on the trial and refutes any idea of Tolle having been drowned in any other manner.
As we appreciate Ridnour's testimony: He saw the barge and towboat in ample time to reach safety, if he had been aware of the dangerous swells, but he did not see the dangerous swells until they were in such close proximity that it was impossible for them to reach safety; the deceased turned the skiff to meet the waves, which is the proper way to meet a wave wash. If the deceased had attempted to turn the skiff towards the bank, the waves would have struck it on the side and have more casily capsized it. If the deckhand had been acting as a lookout on this heavily loaded barge, it is seemingly strange that he did not see this orange-colored skiff coming up the stream on the starboard side of the barge. He should have been the skiff coming upstream and the waves thrown out by the barge. As a matter of fact, he did not see that he should have seen. Ridnour testified that as soon as he saw the danger of the waves, he waved at the barge and screamed a warning. The operator of the barge and the deckhand were extremely negligent in not observing the signal or hearing the warning. The operator of towboat, according to his own...
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...basis of a factual finding that defendants were not proximately negligent. Tolle was reversed by the Louisiana Supreme Court (212 La. 173, 31 So.2d 730 (1947)) and recovery was allowed pegged on a factual finding that defendant was the sole negligent party. The result in each of these cases......
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