Gaylord Container Corporation and Liberty Mutual Insurance Company v. Charley Miley
230 F.2d 177
5th Cir.
1956
Check Treatment

*1 CORPORA- CONTAINER GAYLORD Libеrty Insurance Mutual TION Appellants, Company, Appellee. MILEY,

Charley

No. 15740. Waechter, Baus, Jr., New A. John J. V. Appeals of Court States United Waechter, Walker, Orleans, La., Jones, Fifth Circuit. La., Poitevent, Orleans, Dreux & New Feb. counsel, appellants. for March Denied B, La., Orleans, Porterie, Louis New Duke, Bogalusa, La., Pittman, Dewell D. La., Davison, Orleans, New Porterie & counsel, appellee. Judge, HUTCHESON,

Before Chief CAMERON, Circuit RIVES Judges. Judge. RIVES, Circuit Aрpellee appellants sued the to recover damages twenty-four for the death of his year court, trying old son. The district judg- jury, the case without a rendered plaintiff in favor of in the ment $6,000.00. amount of compliance ‍‌‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‍52(a), Rule In Feder- Procedure, al C.A., Rules Criminal U.S. find- the district court made a full separately its of facts stated Judge, Cameron, dissented. Circuit facts so conclusions law. The found as follows: Corporation owns Container manufacturing operates paper Louisiana,

plant City Bogalusa, large occupies area of numerous city of land. Under the terms blocks obligated city ordinances, it certain itself walkway along construct formerly of what open permanently which should remain pedestrians. the use running walkway, from east to point very west, commences at a near the Along plant. most main entrance way, it is bordered on either side its fence, link wire six seven a chain strung high, wire with barbed “Q” top. there across At opening where an elec- walkway trolley crosses the tric northern side thr mill on the *2 ty That factory feet of flume does not have side. on the southern box opening gates, except kept this overhead crane. closed is passage of an electric for purpose is that of this flume gate is side northern At the on the car. along logs, from railroad cars Continuing west- station. watchman’s parallel railroad which run tracks Avenue ward “Q” the intersection flume, dropped and close to the are southwéstward, path veering operation into thе flume. When in eight tracks. railroad crosses or ten nor- the flume has a stream of water Along area, path part of the in this mally pump- deep six feet which is not side and fence is on the north ed from its southern end towards its crossing the After on the south side. purpose northern end for the floating logs point a few feet last railroad track aat dumped in- which are path roundhouse, the from a railroad machinery toit of defendant’s north, degrees right, veers 90 reaching logs, upon mill. The going north and there is a sidewalk flume, grap- the north end are path is at what 160 feet. Then the ends pled by conveyer convey- a hook continues now still Fourth large rotating ed several feet to a path. from this end of the westward purpose operation drum whose churning logs against is the “Along ‘Q’ path from each other and the sides of the drum to the roundhouse there are two so as to remove the bark from them. watchmen’s stations or One shacks. tumbled, logs, having The go after located the intersection of the grappler on another mechanical ‘Q’. is lo- and Avenue Another another short distance to a series sixty cated feеt to the eastward large whirling purpose knives whose right angle turn next pulp is to reduce the chips wood this the roundhouse. Between inch, of about one cubic more last watchman’s shack and chips proc- or less. The are further roundhouse there essed defendant’s mill into either the northern or southern paper products. various The above course of the dеscribed instrumentalities and ma- four rail- this crosses sets of chinery operated defendant road To north of tracks. simultaneously and as a continuous path, about in the middle of this ' * * * process. automatic open space of the fence between the “The flume is constructed in roundhouse and last watchman’s such operation shack, a manner that if in a man therе is sunken into the falling entrapped ground trough into it would be or flume which runs escape and could therefrom north south. The southern end help from someone without else on thirty-five of the flume commences outside on the bank of the This flume feet trough eight entirety, depth; “This mechanism its feet conveyers, flume, bark tumbler part wide in the narrow and two feet chipper op- machines were in ground is recessed into the of it and night May 23, eration on the top, out which flares to a so that very shortly 1952, until before seven feet, is flush of six with the width o’clockA. M. when the human flesh ground. has or curved slanted It chipper found on and bones were top which are faced with at the walls screen. plate. hun- The flume is five steel forty long “About east covered dred feet ninety degrеe girder supported path makes a turn steel overhead go north next to the its northern reaches. roundhouse over crane path which for- there is a shell leaves the one hundred and The southern leaving guard- angle. degree ninety tion post admitted path at a main during forty du- goes of his the course north shell per- ty, going canteen for *3 to the point immed- fifty in the feet tо a regular as a sonal satisfaction vicinity sunken of the iate * * * employment. his path stops there. This guard guardhouse sta- May “The at the midnight on “That around pathway tion decedent, located at the Isaac 1952, the gate ‘Q’ plant the al- Miley, condi- intoxicated in an was go past seeing so did decedent anyone not see the the extent that tion to appre- his stаtion. distance, him, would even at a of mind state his infirm ciate body. inescapable de- “The fact is that gen- Furthermore, he had very cedent, Miley, passed within community reputation in the eral guardhouses of these be- few feet drinking frequent Bogalusa on point west cause he was seen at a previ- one on at least occasions and by em- of defendant's them ployеe two Gaylord’s em- own ous occasion only ap- who not trainmen acting ployees, of their in the course preciated his infirm intoxicated and employment, removed had him though was seen at a he plant when he tried police from their recognized they distance, him as condition. condition, in a drunken to enter it Miley’ ‘a work- and the one had obviously infirm In this Jungle Jitney which еd at the Store timekeeper’s Miley entered is where it was established the de- building street and at- from the cedent, Lloyd Miley, Isaac was em- through go tempted this time- ployed the time of death. at through keeper’s work- officeand pro- trainmen were on track These whereup- plant entrance to the men’s ceeding south of the from stopped of defend- on he was one mill on the north of the guards. He out ant’s was directed They first saw the de- plant timekeep- out headlights cedent on their on back to the sidewalk er’s office engine approaching the as per- was then again They from south. employees defendant’s mitted proceed very saw him at a in staggering and drunk- proximity which track along the en condition westward just crоssed as he their train follows the former staggering along an east to west was This course of Fourth Street. pathway. They even course on the perilous inescapably to a led almost obviously drunken and discussed known, or that was should have area nothing infirm condition but did known, by employees these protect perils dangerous instrumentalities contain him. area found cars, tracks, en- as railroad such gines guard guard- “The next machinery, includ- and various (the guardhouse) sawmill house camouflaged a sunken though he was in the stated guardhouse containing inadequate and it was his fencing gates, barriers, lighting, per- that unauthorized to see safety safeguards devices to plant point, at that son entered large public and this protect at decedent, Miley, hе see the did not obviously infirm indi- plant there. He enter vidual. per- he would not stated have guardhouse guard in that condi- mitted such tion, sober, trolley to have or even entered the electric station guard- point. question did that area crosses go on the north side past is located his sta- house decedent see the right opening “Decedent, Lloyd Miley, next to an Through twenty-fоur fifty years this was feet the fence. old. At opening employed pass railroad time his death he was four' sets of right Jungle Jitney run north next a Clerk at tracks which Store making end to the flume’s banks. The south a week. He lived in $30.00 thirty-five father, Charley a home the flume is with his Mi- ley, open- Complainant, I World War ing. pensioner in the amount of $75.00 father, a month. The *4 the decedent decedent, Miley, did enter and a sister of the decedent lived the mill and fell into the enclosure together; the decedent contributed through flume, flume and went the towards their mutual tumbler, belt, the first chain the bark furnishing groceries regular on a up conveyer belt, the second and au- spent basis and had several weeks a tomatically and was went painting short time before his death machine, chipping consumed the * * * ”1 his father’s home. designed pulp the which is to reduce chips The wood to wood an district court’s about conclusions of law * * * quoted margin.2 square. inch the 2. “The Court property There are no feet northward Container tersection the flume ground, til Street northern distance southern which there are which runs pathway. And there are no conclusions girder system est (sic) flume or ditch which is such or was or quate lighted walk or determents summary ous: There is omitted from the “1. “There is “All of the above described the overhead point ditch Gaylord roundhouse camouflaged trap, roundhouse inadequately guarded and the from the overhead a manner as to at a The is fences or the westward across unmarked or of one hundred and nearest to the sоuthern end of flume portion night. one hundred was in close Corporation plant some appellant of Avenue ‘S’ and north pathway of law: between hereby facts, lighting on lights over its nearest for the crane crane and path crane commences.” lights along warning signs * * ‍‌‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‍* directed at Fourth the enters the There were no ade- the claims across the path, south constitute designated, west pathway flush with the following parts, proximity is a only thirty-five flume, constructed or directed at does not have lighting; on the the overhead point at that from the in- at its near- lights the roof of termination seventy-five Street and forty feet, be machinery perpetual following foregoing or other Gaylord Gaylord' but errone- hidden poorly point. for a of a path un- L.R.A. minal Co. Gaddis, Court of conditions or public its land. Lawson v. pathway works West La. 75 So. C.J.S., Negligence, er v. Hammond Lbr. ber reasonably and cation. the same as that owed land 15 La.Ann. lott, it. Godchaux son Kelly 26 La.Ann. v. Haber, Simon, 132 La. So.2d 849 servitude or goust, the sard v. “Under “The owner of of a “2. The owner Shreveport 79; public public Co., public 35 So. notes of public 169 La. 738; Thomas, Co., 7 La.Ann. 686]; Favorably 132 La. Etiе, 72 Miss. Martini v. Cowart Pippitone Appeal, 77, favor across its Louisiana law [SA-] [La.App.], the to refrain from [Id., La.App.], La.Ann. 111 La. 462; Baucum v. Pine Woods Lum 390; City close 60 So. 316; Morgan decision thereunder II dedi 11 La. easement 352, v. Iberia Vermilion R. right entrapments. Lepnick Waterworks roadway 166 La. duty Torris [Torres] v. Fal particular Civil property adjacent Builliard v. N. O. Ter 652; 125 So. [12 proximity dangerous 1027; 60 So. 394; [497] 57 So. 577. 166 So. Shreveport premises free Co., 35 So. La.App. Code, publicly running Cleris v. public owes a ordinary care, Fish [Fisk] v. 23 So.2d Shreveport passage along 500; Kohn v. Bel 269; 141 La. creating [La.App.], So. 213 [26 Co., individual of 795; 117 So. invitee Article 743 390; 640; giving Lombard, 635], dedicated owes to duty with the Tieman, 111 La. duty Lawson Water Brous Ander Lani 655; [65] to in a 573; Co., La. v. use, trespasser Gaylord he to whom became that appellants concede n owedto duty owed of refrain- Miley of main- causing wantonly willfully reasonably taining pathway safe in a injury.3 n he insist Appellants departed for his the doc- available insist charged n will be followed and 888; should be have seen the decedent act Wheadon gleston App., Beverly, 2d er and cuit App. 115; was not avoid lic stances and almost mentality. who dition, erating ly, Ry. rоad Louisiana Courts puy drunken condition contributory negligence vent was that his condition as to an care ly seen in such cases and Navigation not been borne owed case. and the defendant has it ers is Lbr. ment and instrumentalities. “4. “These cases “3. The substantive “Defendant’s “5. Defendant’s Porter negligence intoxicated 610; 183 La. Service accordingly Co. Court of La. injured this doctrinе would be Co., was owed decedent’s, Lloyd to a child. Gouzien recovery Blackburn v. favorably injury Commission The Louisiana placed upon of ordinary person Veazey [La.App.], inescapably ability v. Louisiana & A. the doctrine of discovered with 183 La. 860, [65] Inc., proceed down a avoided. explaining why v. Porter [La.App.], Grennon v. Black, potentially to a Tillman v. Public observed [10 was not seen and the to is the same an Appeals seeing 181 So. 215 La. C.J.S., 774; to avoid harm to him or throw under employees saw to him; permitting obviously against higher 203 F.2d him. prevent the defendants in this employees Louisiana [La.App.], does not amount La. Such a what he could Cassar v. 69 So.2d by Negligence, Rottman [La.App.], by the in New Orleans Pub law is such that 165 So. (sic) observed, 195; law of Louisiana dangerous equip- then a Jackson v. a defendant which will Texas & than that a defendant within Isaac 153; 641], 63 So.2d injury ‍‌‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‍41 So.2d circumstances drunken con- Ry. Feraci, like 80 So. 708. Rottman v. burden has Railway applied Fifth Cir Belt defendant, burden 153; 610; defendant or should 42 So.2d Mansfield obviously Wheadon decedent, 576. its Co., obvious as that Miley’s, circum to oth- instru Bever Pacific injury Cook, guilty Rail owed 57. pow 209; have peril 756; pre Du- Eg La. La. op So. led to to & peоple near way dition in an obvious drunken and decedent, travelled safeguard specific trapment take and are with vices, power from its misleading of a unguarded, dangerous entrapping as the means to do so dealing traps, contained numerous all of their between virtue of death; see what house, entrapments injured ful prevent twenty-four years death. ty-five yeаrs personal so, groceries seen. Citing "Defendant “Defendant’s “Defendant “Defendant’s “Defendant’s his son’s compensate, helping negligence. having “(Sgd) camouflaged proximity took an any precautions seeing led an award of into father, decedent, Lloyd Mills v. Complainant, injury duties father and condition led original relationship for the common having public from the main instrumentalities those instrumentalities. life. contributed in life and the natural in view of directly what constitutes wanton and an old at the time of his son’s properly. “U. S. District Herbert W. entering created created a to actual course instrumentalities of where the main insofar as to observe and employees permitted guards employees Isaac household could and the maintenance of lived charged hazardous Heidingsfield, La.App., a proximity in an old at the time of his they plaintiff, son, helpless person hidden, $6,000.00 to within a few and this dangers, his with his father to avoid been observant Miley, was their mill could have seen camouflaged en- failed in their misleading decedent’s just father, the same upkeep, with and failed to money Christenberry by furnishing unlighted and failed part maсhinery. within their should have to a for the loss 90 as did is in order to Miley, misleading situations, Judge.” failing virtue and wil- was charged prevent proceed *5 degrees heavily sunken as well to can do affinity which death path- being homo con- was and de- fif- to to applica- contrary, placed of last clear chance is not On him in the trine ease, position of a child—or of those un- blе to because: “(A) precedent to able to take As a care of themselves condition doctrine, part application called more the plaintiff caution on prove defend- others. Horsthemke New Or- must that the negligent Ry. Light Co., leans in this case & ant was negligence [931,] 932, proof So. 210.” there is ‍‌‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‍Gaylord’s part; See, also, Ry. Blackburn v. Louisiana & “(B) The clear dоctrine of last Nav. La. 80 So. only applies chance situation Grennon v. New Orleans Public Serv- defendant is in control ice, 120 So. moving, dangerous instrumentali- In Tillman v. R. Public Belt R. Com- ty or force and where the failure mission, 888, 891, 42 So.2d the Court of move- the defendant to arrest Appeal Louisiana, Division, Orleans inevitably results ment of that force peril reviewed the doctrine of discovered injury plaintiff.” expounded in cases from the Louisiana general well rule is estab Supreme Court and stated: “And we see lished Supreme no reason to believe that abutting up- possessor “A of land Court would not hold that the doctrine of public highway subject li- on a apparent peril applied should also be ability bodily caused harm against against any a railroad or dеfend- *6 young children an excavation operating dangerous potentially ant strumentality.” in- maintained other artificial condition high- him thereon so close open flume way unreasonable it involves flowing deep, stream of water six their to such children because risk pressure, pumped under churn high- tendency to deviate ing against other, moving each toward a Torts, Restаtement, 369.4 way.” 2 whirling knives, is most certain series duty, recognition Partly of that ly potentially instrumental high us, maintained seems to ity. service watchman wire along agree with We district court that Gaylord’s perform failed to servants an un- constituted That Lloyd Miley their after dis- hardly could risk to children reasonable covered in a drunken and found: disputed. court As district be toward headed man- in such a flume is сonstructed reasonably place where could falling operation in- man if ner that might anticipate deviate from that he entrapped and could not be would to it fall death into this veritable the trap. help from without escape therefrom the bank on outside else someone judgment is therefore flume.” La.App. Feraci, 2 Affirmed. v. In Gouzien said: it was being put him CAMERON, Judge nоt (dissent- did drunk “But Circuit protection the law. beyond ing). 786; Vargas Bot Blue Seal 46 So. R. 192 Fredericks Illinois Central Works, tling So. La.Ann. So. and O’Conner Ry. Co., & G. v. Tremont Mercer Co., 44 La.Ann. Illinois Central R. La.App., 19 So.2d 270. contrary 678, and So. is not Pearce, Peters requirement cases Keeping of “an in mind the ‍‌‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‍Chicago risk,” and Buchanan v. R. we think this state- unreasonable Ry. Co., La.App. 424, & P. of the rule is consistent I. ment exemplified deсisions Louisiana findings be- of the Court Basic majority, by the low, now embraced is under landowner idea against intru- guard premises trespassers. enter one should If sion despite safety vigilance, the owner’s owner, virtually insured —es- my opinion, In pecially if he drunk. private do cast the authorities Nor precarious a property base. so upon ine- they place premium such a do Finding re- briety. for the morals, im- I am either law or sult

pelled to dissent. J., CAMERON, C. denied:

dissenting. America, Union STATES

UNITED Company, Appellants, Pacific Railroad *7 Appellee. MARSHALL,

No. Appeals. Court States

United Circuit. Ninth 30, 1956.

Jan. March Denied