43 So. 458 | La. | 1907
Statement of the Case.
The plaintiff, as father of the minor, John Brinkman, claims, for the use and benefit of the said minor, damages to the amount of $7,000 for personal injuries received by his said son through the alleged gross negligence on the part of the defendant, and, in his own behalf, for damages to himself growing out of the said occurrence and the injuries received by his son.
In the petition filed it is averred that during the month of November, 1904, on the 24th day of said month, he brought a wagon load of cotton seed to the town-of Opelousas for sale and delivery to the said St. Landry Cotton Seed Oil Company, and that said wagon was driven by his said minor child, John. He avers that, in order to deliver said cotton seed, it was necessary for his said son to drive his aforesaid wagon to the door of the warehouse where said seed is unloaded, and then to unload, or have the same un
Petitioner avers that his said minor child was guilty of no negligence, and was unable to ascertain and know that said seed conveyor was open, and that said pile of cotton seed was as quicksand, with lurking danger concealed beneath. That the action of said St. Landry Cotton Seed Oil Company in leaving said conveyor open, when thus concealed from view, with nothing to warn the person having business in said warehouse, where the same is situated or the danger thereof or the fact that the same is open, constitutes gross negligence on the part of said corporation, and renders them .liable for the injury sustained by petitioner’s aforesaid minor child. Petitioner avers that his own means are limited, and he has been unable to educate his aforesaid son to fit him for any profession, involving upon him manual labor as a means of livelihood. That said injury caused his aforesaid son great pain and suffering and mental anguish. That he was confined to his bed for a period of three months, and is even yet suffering therefrom. That he is entitled to recover for said minor child from said St. Landry Cotton Seed Oil Company the following damages, to wit:
In the petition the damages claimed are set forth in detail.
Defendant, after pleading the general issue, averred that it admitted that the said minor, Brinkman, named in the petition, is the party who was injured and got hurt at the cotton seed warehouse of respondent; but respondent specially denies that said injury was caused in any manner by the fault, neglect, or act of respondent in any manner, and, on the contrary, declares that the said injury occurred and was due solely and entirely to the acts, the fault, the negligence, and the imprudence of the said party injured, and more especially to his want of care and prudence in unduly exposing himself to harm and injury by the machinery in said warehouse, which was fully visible, and by needlessly coming in contact with said machinery.
That the said injured-party, without asking for directions from respondent’s agent, drove his wagon into said cotton seed warehouse near the conveyor which was then in motion and being operated for the transfer of the seed to its mill, and by jumping from his wagon over said seed conveyor, and across the same, to a slanting pile of cotton seed nearby, for the purpose of getting a fork that was at the top of the skid slanting pile of cotton seed, and that his weight and the act of jumping onto the said pile of slanting cotton seed near said conveyor caused the same to slip and give way, and said injured party was thereby carried by said cotton seed in its fall to the conveyor, from which he received the injuries complained of in this suit. And that the said injury was not only due to the acts and fault of said injured party in the premises, but could have been avoided by the exercise of ordinary care and prudence on his part.
The case was tried before the district
The district judge gave extended reasons for the judgment which he rendered. In doing so he said:
“The facts are: The defendant operates a large cotten seed oil plant at the town of Opelousas, and in connection therewith has a large seed house for the storing of its seed just north of the mill proper. That a conveyor system is operated in said seed house, which the evidence shows is a necessity to the handling of the large quantity of seed used in the milling operations, and the court is satisfied from the evidence that said conveyor system is not constructed or operated in a manner to endanger the persons or the patrons of the mill, and that it is in fact located at the only place, and operated in the only manner, in which it can prove serviceable in economizing the handling of its seed. The fact that it has been operated as it was on the day of the accident for the past five or six years, without accident or injury to the hundreds of persons unloading seed through it and near it, save in the one case now at bar, is mute but strong' evidence that its construction and use is not dangerous to the person exercising ordinary care and prudence. The conveyor in which the accident occurred is situated on the east side of the wide wagonway running through the seed house, and consists of a large spiral augur inclosed in a box 18x18 inches, at an average level of about two feet six inches above the floor of the driveway. That a line of posts in the driveway on the side of the conveyor box prevents a wagon from coming nearer than about two feet from this box, and that the system of unloading seed at defendant’s seed house is for the wagoner entering the seed house to drive as near as he can to the conveyor box, and from his wagon to unload his seed, or have it unloaded by the employes of the mill, at his option, into apertures or holes in th,e conveyor box, 18x18 inches in size, where it comes into contact with the conveyor augur, and is carried into any part of the seed building at a rapid rate, and as fast or faster than it can bo unloaded at the aperture in the conveyor box. Now, under this system, it is unnecessary for the wagoner to leave his wagon, or at least the driveway, even where he exercises the option of unloading his wagon, for which the mill pays 15 cents for an average wagon load. The driveway is entirely safe to the wagoner, and the only danger that he can incur after entering it is by coming into contact with the conveyor in the box at the side of the driveway. That this conveyor is dangerous to a person coming into contact with it at one of the apertures is clearly obvious to the ordinary observer from its size, the rapidity of its revolutions, the whirr and grinding noise clearly audible from the driveway, and by the view of the machinery and driving gear to be seen on entering the driveway at the south end of the seed house. The court has no doubt, besides, that the location of this conveyor, its operation, and the danger of coming into contact with it,, was well known to the injured boy, and was well known to him, as he admitted having during several seasons hauled seed to this seed house, and unloaded his own wagons into the conveyor. He must be presumed, therefore, to have known that it was not safe to attempt to leave the wagon driveway, and to attempt to cross the conveyor while it was in motion; and, while there is some conflict in the testimony as to whether the conveyor box was entirely or only partially covered by the seed to the east of the conveyor box, yet, even conceding it to have been entirely covered, the movement of the driving gear at the entrance of the seed house, the noise made by the conveyor itself, and his previous trips to the seed house must have apprised him that the conveyor was in motion, and that it lay a few feet at most from the outer edge of the driveway and between the driveway and the pile of seed where the fork was, that he says in his testimony he was attempting to reach when the accident occurred.
“Now on the morning of the accident, the elder Brinkman carried two wagon loads of seed to defendant’s seed house. The injured boy drove the front wagon, and entered the driveway of the seed house on the right-hand side, but had to wait in the driveway a short while, as a wagon was unloading into the conveyor 'box on the same side, which was being unloaded by a Mr. Kamy. The Brinkmans, father and son, state that Ohachere, the superintendent of the seed house, instructed him, the boy, to move into Kamy’s place, when he should have unloaded, and unload in the same place, and the elder Brinkman, towards the close of his testimony adds that he also instructed him to use the same fork that Kamy was using. Ohachere denies this statement in toto, but the conflict is, in the opinion of the court, not material or important. After Kamy had unloaded, he threw the fork he had been using on a pile of seed on the further and east side of the conveyor, and the injured boy states that he then drove up his wagon into the place occupied by Kamy, and attempted to cross the conveyor and get the fork on the other side of it, when his foot fell into the conveyor and was badly mangled. The case pivots upon the facts occurring at this time and place, and they have been carefully considered and weighed as all-important. Were any of these acts the acis of the defendant, or induced or authorized by it, or commanded by it? Were they, on the other hand, the purely voluntary acts of the injured party? In the opinion of the court they were the latter’s acts, voluntarily done, unnecessarily done, with a knowledge of the risk, and give him no legal ground for an action against the defendant. In the first place, he voluntarily chose to unload his own wagon. Admitting that Ohachere instructed him to unload the wagon in the same place that Kamy had unloaded, this did not justify him in attempting to cross the convey- or, which could be seen and heard to be in motion, and which his previous acquaintance with*841 the surroundings had apprised him to be dangerous, and which this previous experience likewise apprised him, he would have to cross in order to get the fork. Chachere was unaware of his rash' attempt to cross the conveyor, for the Brinkmans themselves say that, after giving his instructions, he left the seed house and went to unload some cars on the railroad switch. Now, as Chachere had left the scene before Kamy had unloaded, can he be held accountable for Kamy’s throwing the fork into the seed on the farther side of the conveyor or for the younger Brinkman attempting to cross ■ the conveyor to get it, even conceding as true the elder Brink-man’s statement that Chachere instructed his son to use this same fork? This contingency was evidently not contemplated by Chachere, even conceding the stated instructions were given ; and to hold the defendant liable for the accident would be to stretch those instructions beyond their literal import and meaning, and construe them into a command to the injured party to get the fork, even if he had to cross the conveyor to get it, and this would convict Chachere of criminal wrong and negligence, for he says he had at all times done all he could to warn persons of the danger of these conveyors. On the other hand, the injured boy, who was in his wagon just behind Kamy, could have readily obtained the fork from Kamy by asking for it, and, even after it was thrown across the conveyor, he could have'procured one of the employes of the mill, who the evidence shows was working on that side of the conveyor where the fork was thrown and about 30 feet away, to get it for him, or he could have asked and called for another one. He did none of these things, and voluntarily took the risk of crossing the convey- or. The choice on his part was unfortunate and deplorable, but the court knows of no principle of the law of negligence, and has .been referred to none, by which the consequences of this act can be legally fastened on the defendant. It is therefore ordered, adjudged, and decreed that the demands of plaintiff be rejected, and his suit dismissed at his costs.”
Opinion.
We attach to this opinion for reference a résumé of what we consider to be the pivotal testimony in this case. It would be of no benefit to the profession to embody it herein. A number of witnesses were examined on both sides, and the testimony was exceedingly contradictory upon some points. The district judge says he did not think it necessary to discuss that testimony, so that the case comes to us free from any conclusions on those points. The point of view from which the judgment of the district court was rendered was that, for reasons assigned, the proximate cause of injury to the boy was his own fault and imprudence. As the result of that conclusion, no discussion of the situation quoad fault or negligence on the part of the defendant was made by the judge. Under the view we take of the testimony, it is necessary that this should be done. In our opinion the trial judge has ascribed to the injured boy a knowledge of the situation and position of the working machinery at the place of the accident and its method of operations ; also a familiarity with the surroundings of the place greater than he justly could be presumed to have had, in view of his connection and relations with the mill property. 1-Ie was not an employé of the defendant, working in and about the mill, but a farm boy sent occasionally by his father to the mill to unload and deliver from the cart he was driving cotton seed which his father had sold to it. Under such circumstances, he would have no special concern in the mill, and not likely either to make. inquiries regarding it, or to notice conditions there. His father, who had gone more frequently than his son had done to the mill for the same purpose, had derived no knowledge of the same from his trips, and it was very natural that neither should have done so. The spiral conveyor was hidden from view, inclosed in a wooden boxing, and no one could form any opinion, without actually seeing it, how it was worked, or where it was placed. The fact that openings might be seen in the boxing would not convey to the mind of a person unfamiliar with machinery that there was a spiral conveyor inside of the boxing and opposite the hole which would make it dangerous to insert one’s foot into the boxing. The noise of the machinery might inform persons entering the said room that there was machinery at work, but it would not indicate to them the danger points connected with the same. The first testimony which we turn our atten
For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the judgment of the district court be and the same is hereby annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the plaintiff, for the use of and on behalf of his minor son, John Brinkman, do have and recover judgment for the sum of $4,000, with legal interest thereon from the date of the judgment herein, against the defendant, the St. Landry Cotton Oil Company, until paid.
It is further' ordered, adjudged, and decreed that the plaintiff do have and recover judgment for himself against-the defendant, the St. Landry Cotton Oil Cpmpany, for the sum of $235,'with legal interest from the date of this judgment until paid. It is further decreed that defendant pay the costs of both courts.