Williams v. Sewerage & Water Bd. of New Orleans

• Decision Date: 12 November 1956
• Docket Number: No. 20848,20848
• Citation: Williams v. Sewerage & Water Bd. of New Orleans, 90 So.2d 582 (La. App. 1956)
• Court: Court of Appeal of Louisiana
• Parties: Lawson WILLIAMS v. SEWERAGE & WATER BOARD OF NEW ORLEANS.

Page 582

90 So.2d 582

Lawson WILLIAMS v.SEWERAGE & WATER BOARD OF NEW ORLEANS.

No. 20848.

Court of Appeal of Louisiana, Orleans.

Nov. 12, 1956.

Samuel C. Gainsburgh, New Orleans, for plaintiff and appellant.

George Piazza, New Orleans, for defendant and appellee.

REGAN, Judge.

The plaintiff, Lawson Williams, employed as a laborer, instituted this suit against the defendant, his employer, Sewerage & Water Board of New Orleans, endeavoring to recover workmen's compensation at the rate of $30 per week for a period of 400 weeks, together with $1,000 for medical expenses, for total and permanent disability resulting from injuries which he incurred on December 28, 1953, at about 5:00 P.M., when he was struck by an automobile as he alighted from defendant's truck in Washington Avenue between S. Claiborne Avenue and Derbigny Street.

Defendant answered and admitted the occurrence of the accident, but denied that it arose out of or in the course of plaintiff's employment and alternatively denied that the injuries permanently and totally disabled plaintiff from doing work of any reasonable character since he was able to return to his employment as of March 10, 1955.

From a judgment in favor of defendant dismissing plaintiff's suit he has prosecuted this appeal.

The record reveals that plaintiff had been employed by the defendant for several years as a common laborer engaged in 'digging sewerage'.Each morning plaintiff, together with other members of his crew, would ride in defendant's truck to the job site and about 4:45 each afternoon the crew 'knocked off' and the truck to which they were assigned returned to a designated storage yard.The truck from which plaintiff and the crew worked was assigned to a yard located in Washington Avenue between Derbigny Street and S. Claiborne Avenue.

On the evening of the accident approximately twenty-five trucks returned to the yard in Washington Avenue and as was the plaintiff's custom, he rode back to the yard in truck No. 55.The trucks, as they approached the entrance to the yard, were lined up parallel to the curbing and sidewalk of Washington Avenue and were intermittently moving in the general direction of S. Claiborne Avenue before turning into the driveway of the yard.

At this point in the factual revelation of the case there is a decisive and sharp conflict in the testimony.Plaintiff contends that truck No. 55 was preparing to execute a turn into the driveway and enter the yard when he alighted from the rear thereof and was instantly struck by a vehicle moving from S. Claiborne Avenue towards Derbigny Street and that, as a result thereof, he incurred a fracture of both legs and other injuries.

Defendant, on the other hand, insists that the plaintiff alighted from truck No. 55 in the general vicinity of Derbigny Street and Washington Avenue and then walked along the sidewalk in the direction of S. Claiborne Avenue.When he neared the entrance to the yard, he then decided to run between two of the parked vehicles owned by the defendant and into Washington Avenue where he was struck by a vehicle moving in the opposite direction and since, he had left the uptown sidewalk, a place of complete safety, and run into the street, where the accident occurred, he was not then acting within the course of his employment, therefore, his injuries are not compensable.

The trial judge expressed the opinion that

'The evidence preponderates to the effect that the plaintiff was neither injured while in the act of alighting from the truck or so close in time thereafter that his injuries might be considered as an incident of the transportation; but, on the contrary, the preponderance of the evidence is that plaintiff was injured while in the act of crossing the street from the uptown sidewalk of Washington Avenue to the downtown sidewalk thereof.'

Our examination of the record fails to reveal any reversible error in the trial court's conclusion.The defendant proved that the plaintiff alighted from the truck of the Sewerage & Water Board, stepped upon the uptown sidewalk of Washington Avenue which parallels the storage yard of the defendant and was walking from Derbigny Street towards S. Claiborne Avenue and that when he reached a point approximately 35 feet from the entrance to the yard, for some unexplained reason, he left the sidewalk, ran between two trucks which were parked awaiting entrance to the yard and into Washington Avenue where he was struck by an automobile, driven by a third person, moving in the opposite direction.

Plaintiff asserts that even assuming the validity of the foregoing factual conclusions that it would make no difference, in the final analysis insofar as compensable liability is...