Bellocq v. Hotel De Soto Co. , 1919 La. App. LEXIS 106 ( 1919 )

BY: WILLIAM A. BELL, JUDGE:

This is a suit for personal injuries, in which a jury trial resulted in verdict and judgment for plaintiff, Paul >D. Belloeq against defendant, the Hotel De Soto Company, proprieors” of the Hotel De Soto, in Hew Orleans. The damages allowed were $2,666.50, and a judgment in favor of intervenor, Miller Indemnity Underwriters and against plaintiff, in the sum of $166.50.

We find that plaintiff was employed by the Interstate Electric Company, whose place of business was directly opposite the Perdido Street side of the hotel which occupies the entire block-or l/2 block, bounded by Baronne, Carroll, Eerdido and poydras Streets.

On May 10th, 1919, at about 11:30. A'.M., plaintiff was directed by one of his superior co-employees of the Interstate Electric Company to repair an automobile used in the company’s business. This machine was at the time, parked closely to the side-walk, on the hotel side of Carroll Street, about fifty feet- from the corner of Perdido and Carroll Streets. Whi-le engaged in the repair of the car, plaintiff was standing on the side-walk with his back to the hotel and leaning over the open hood of the madhine. In this position, a wooden framed screen fell from the eighth floor window of the hotel, .struck the car and plaintiff a slanting blow, resulting in severe contusions of plaintiff’s scalp, and causing a dent in-the hood of the car. Plaintiff was not rendered unconscious, but for a minute wag, as he say3; "dazed" by the blow, and after bracing himself against the hotel wall, be managed to walk from the- place of the accident to the réar door of the Interstate Electric Company, where his fellow-workmen came to his assistance, and hurried him.in one of the Company's trucks, to a nearby hospital, neither of the doctors who treated him at’the hospital testified in the case, hilt from the evidence it appears that plaintiff suffered severe e.on-. tuai'ons-,and lacerations of the scalp, was detained for treatment ab -td)!) hospital for a week, and continuing to suffer, from nervous shock and physical disability, causing a ringing in the ears, irritability and loss of sleep, etc., he v.as net able to return to his work for four weeks longer, nor t'o Ms accustomed heavy work in the shop, for some time later. A nerve specialist whom plaintiff did not consult for over a month after the accident, testifies that he found plaintiff ha-d suffered a concussion of the brain, not of a serious nature, but such as would, and did, yield to proper treatment and rest, and that after seeing plaintiff a second and last time, while under his care, that -plaints ff told him he was feeling very much improved.

We find from X-ray-photographs in the record, and from the radiologist's report thereon, that same "showed "no evidence of. depression of the skull or of fracture or "any signs of bone injury." Vie also find from testimony on b'ehalf-'Of plaintiff, record-admissions tc the effect that examination by a'competent oculist disclosed n'o injuries to plaintiffJs,.eye-sight, but that the headaches and other terns porary sufferings r.ere natural results of the accident.

It is not denied that plaintiff v.as injured in the-manner described in his petition, and after careful examination of the evidence we have concluded that the extent of his injuries were as above set forth. He has also proven conclusively that his financial loss in wages, doctors’ bills, etc., was some §350.50. of which the Millers' Indemnity Underwriters, intervenors herein, have reimbursed him in the sum of §166.50. 'These facts being, established, we are led to the ■ conclusion, vel non, of defendant's liability; and to this /end', v.e must"’determine facts presented by the record.

We find from the evidence that the wire sdreen \-&hich struck-the plaintiff, and caused his injury, was undoubtedly a part of the structure, or equipment, of the Hotel pe^S.pto, property of defendants herein; that it fell from the story windov of the Hotel, and was seen in its dovnward lllii^ht- .‘to-strik.ei the plaintiff a glancing b^ov on the head, and to also land upon the hood of the automobile which plaiatifi was repairing. Defendants contend that the verdict and judgment in this case was erroneous, particularly for the reason that the evidence does not establish that it was the defendants' fault which caused the accident. Three \ itnesses of the defendant testify to what might be considered reason?bio inspection of the screens and fastenings throughout the rotel. and to tie precautions usually taken in regard to this kind nf property, as well as to fixtures and equipment of the rotel. Te have no right tc doubt that this testimony is truthful and reliable, but, on tlx piker hand, it is clear from the evidence, and test imony of other witnesses, and from the admission of defendants.' witnesses, that knowledge had been brought, home to the hotel, on more than one oocaslon prior to the accident, of defects in the- screens used by the Oor.peny in jis win,dots. The evidence Is c0ncil;ijive that on at least tv.o or three occasions prior to, and ')• no means reraote from the J.- te of tve accident, leic'ns had fallen, or he..- : blown froi. the windows of th r -tel, and srbsoquenily gatheren ey the Total's chit f engineer, i «va: the ini instate C •r.,p/.ny'o employees, the latter having re.-o,.eo lien fror. out of the street in, end around the locality vK-re ¿I.?'stiff was injured. These f-ots, while testifled'to hj. ü.„ rlaiai'ff 's co-employees, are also confirmed ’oy disinterested 't-i-vse , enqiloyed in the ;■ =i->.hborhood of (larro-ll Stress, .-re->.tOp- • poeite from the 7‘otei, and who "era not connected In any , aj viith the plaintiff or defendant in this case. liability arises from this evidence in particultr, coupled .viti, 1"-' S oJ JhS defendant and it; employees were charged »- 1 th th-.- ' ...l~'¿u oh the perishable c.'ldition of these sere n-.-. arn w" ' h i" e ij.parent defects therein, i>rinr to the >.3dü-i.t arl-i f- in ’ uij case. The fastenings hand springs in f'" p-rticul ■ ,.‘.f ... in question, being "indo of steel, -apjeot t. ' . v.’’ ■.x'£. in. , cause» peculiar • o.l part in'far supei > n -:n "r-part of the Compa..y or it., e- ployei.-í. .

Under the doctrine of rea ipsa loquitur, which in our appreciation of the evidence before us is peculiarly applicable to the instant case, it is not incumbent upon the plaintiff herein, to prove such negligence as musx rightly be presumed from evidence conclusively showing that other screens on several occasions prior to the accident had fallen from defendants' building, notwithstanding its previous and- continuous system of supervision. Herbert vs Lake Charles Ice, Light & Water Works Co., 111 La. 522. The case before us was thought by the learned judge of the trial court, as shown by his charges to the jury, to come particularly within the doctrine a Dove mentioned, and we agree with him in its application here. In the case of Lykiardopoulo vs. New Orleans & C. R., Light & Power Co., 127 La., 310. the court found for the plaintiff who was killed by explosion of a boiler tube in the boilers to which he was stoker, holding that defendant and not the plaintiff was charged with the necessary care and inspection of the boilers, neglect as to which need not nave been charged or proven by plaintiff. We quote in part from the language of the court, as follow:

"In cases where the plaintiff cannot be expected to have any information as to the causes of the accident, whereas the defendant, on the contrary, must be assumed to be fully, informed on the subject, and where the accident is of the kind which ordinarily do not occur when due care has been exercised, the rule of evidence is that the aocident speaks for itself - res-ipsa loquitur - that is to say, that, a presumption of negligence arises from the fact itself of'the aocident. In such cases,-the plaintiff not only need not allege the particular -acts of omission or commission from which the accident has resulted, but need not even prove them. The aboident itself makes out a prima facie case, and the burden is on defendant to show absence of negligence. Res ipsa loquitur."

We note the particular reliance placed by counsel for defendant in the case of Mire vs East La. Ry. Co., 42 Ann., p.p. 392 to 395, stressed by him in application for a new trial. and in brief and argument before this court. Most careful analysis of this case and of other similar authorities cited, has not convinced us of their application either to the law or the facts involved in the case now under consideration.

Another defense urged by defendants' counsel and pleaded.in answer as a bar to plaintiff's recovery, is vne fact that plaintiff was, at the time of the accident, guilty of negligence by working in the public street upon an automobile. in direct violation-of City Ordinance No. 6173, Commission Council Series, which reads as follows:

USE OE STREETS EOR REPAIRS PROHIBITED.

(a) ho machine shop or automobile service or repair station or other establishment for the repair or adjustment of vehicles shall use the public streets for the storage of vehicles or the repair of vehicles ,

(b) In case of necessity, vehicles may be stopped in the public streets for the replacement or repair of tires or for minor adjustments, but shall not stop in such a manner as to impede traffic,"

There is no merit to this defense, because of the fact that proof is lacking, (the burden ’being upon defendant) to show that plaintiff was violating, first the letter, of the of the ordinance as above quoted, or secondly, that even if violated, that its breach in any manner contributed to the accident. The charge to’the Jury thoroughly covers this point, and cannot be better expressed, than in, the language of the able ti"t».i •badge, who said;

"If a-man violate a City ordinance and by his violation of.-, that, ordinance he’makes more liable or apparent an accident, then he ’ •is guilty of negligence, but when hi.S. violation - of the ordinance has nothing to do with the -negligence of his .’adversary, then such negligence does not .preclude his recovery.

■ Every man has a right to use the public streets for all lawful purposes, subject to the police Power of the City and when he violates an ordinance and by his violation as no injury or damage, then it is merely a matter for police action."

The following Articles of the Revised Civil Code is all that is necessary to clearly fix the liability of defendant in this case:

R.CGC.2315. "Every act whatever of man that causes damage to another obligates him by whose fault it happened to repair it,"

R.C.C.670. "Everyone is bound to keep his buildings in repair, so that neither their fall nor that of any part of the materials composing them may injure the neighbors or passersby, under the penalty of all losses and damages which may result from the neglect of th'e owner in that respect."

R.C.0.2322. "The owner of a building is answerable for the damages occasioned by its ruin when this is caused by his neglect to repair it, or when it is the result of a vice in its original construction."

It has not been proven here what force or agency, if any, caused the screen to fall into the street, or that any of defendants' servants caused the screen to fall while cleaning, repairing or lifting it.

There is evidence? that no guests were in the room at the time of the accident, but one of the disinterested witnesses swears that he saw someone look out of the window immediately after the screen had fallen from it. Under these-conditions, another Article of the Code would also apply:

Art. 177: "The master is answerable for the damage caused to individuals or to the community in general by whatever is thrown out of his house into the street or public road, and inasmuch as the master has the superintendence and police of his house and is responsible for the faults committed therein."

We are not disposed to approve of the quantum of damages awarded by the jury and amounting to $2,666.50. This amount in our opinion, is excessive. There is nothing before us to show that the injuries which plaintiff sustained are in any manner permanent, nor in their nature serious. Though the plaintiff’s age does not appear in. the reoord, we gather from other faota,.that he' ia a, young man, shown to have been athletio and’vigorous. Though' temporarily disabled and nerve— —raoked by the aeoident, he returned to his normal activities, and resumed his accustomed duties whioh he was fully performing when before the court in this case. We have already detailed above, our appreciation of plaintiff’s injuries and cannot but lean towards the impressions of the trial judge, as expressed on the occasion of his giving writ ten reasons for denial of a new trial.

We think, after careful consideration of the reoord, that the judgment in favor of plaintiff, Paul D. Bellooq, and against Hotel De Soto Company, defendant, should be reduced from Two Thousand Six Hundred and Sixty-Six and 50/100 Dollars-, ($2,666.60) to One Thousand six Hundred and Sixty-Six 50/100 Dollars, costs of the lower court to be borne by defendant, and those of appeal to be borne by plaintiff.

Under Seo. 7, par. 2 of Act 20 of 1914, as amended by Act 247 of 1920r that part of the original Judgment rendered herein, in favor of intervenor, Miner-Indemnity Underwriters, recognizing it as subrogee of all rights and actions of the Interstate Electric Company, employer of' plaintur, Paul D. Bellocii,-and as such awarding it judgment-for the sum of One Hundred and Sixty-Six 60/100 ($166.50) Dollars, with oost3 of intervention, against the amount now decreed to plaintiff, IS AEPIHMBD, said amount to be paid intervenor out of thi3 judgment by preference over all other persons.

JUDGMENT AMENDED AND AS AMENDED AFFIRMED

March 27, 1919.