Opinion
No. 652.
November 5, 1962. Rehearing Denied November 28, 1962. Certiorari Denied January 14, 1963.
Action for injuries sustained by plaintiff, a city policeman, who fell into an excavation in a sidewalk. From a judgment of the Fourteenth Judicial District Court, Parish of Calcasieu, Cecil C. Cutrer, J., the defendant appealed, and the plaintiff answered the appeal asking for an increase in the award. The Court of Appeal, Savoy, J., held that evidence established that the general contractor was negligent and that the plaintiff was not contributorily negligent so as to bar his recovery, and that under the facts the plaintiff was entitled to an award of $45,000.
Amended and affirmed.
Hood, J., dissented.
Cavanaugh, Hickman, Brame Holt, by Meredith T. Holt, Lake Charles, for defendants-appellants.
Bass Lawes, by Eugene H. Lawes, and Calvin W. Eason, Jr., Lake Charles, for plaintiff-appellee.
Plauche Stockwell, by Fred H. Sievert, Jr., Lake Charles, for intervenor-appellee.
Before TATE, SAVOY and HOOD, JJ.
This is a damage suit filed by plaintiff against defendants, F. Miller Sons, Inc., C. L. Guild Construction Company, Inc., Newman Truck Line of Hammond, Louisiana, Bane Massingale, Inc., and Travelers Insurance Company. For a cause of action, plaintiff alleges that he was employed as a member of the Lake Charles City Police Department; that his duties required that he patrol the area between Church and Belden Streets on Enterprise Boulevard in the City of Lake Charles; that on the night of December 26, 1959, at approximately 7:30 P.M., he was walking south on the sidewalk west of the paved street portion of Enterprise Boulevard; that it was raining at the time and the surrounding area was dark; that the defendants, who are all contractors with the exception of Travelers Insurance Company, the insurer of F. Miller Sons, Inc., were, on December 26, 1959, engaged in the construction of an excavation for an overpass located about 250 feet from the intersection of Enterprise Boulevard and Church Street; and that while in the process of constructing and building the overpass, they made certain excavations and tore up certain portions of the sidewalk on the west side of Enterprise Boulevard causing a step-off with an extremely slippery, jagged and dangerous area exposed where the concrete sidewalk was located. Plaintiff further alleges that on the night of December 26, 1959, at the hour aforesaid, he was walking south on the sidewalk of Enterprise Boulevard, making his regular beat as a policeman, and while traveling in that direction, he approached the place where the excavation had been made and he slipped in the excavation and received a back injury.
Plaintiff also alleges that the sole and proximate cause of the accident was the negligence of the defendants in the following particulars:
"(1) They failed to place a barricade in front of the opened sidewalk made by them.
"(2) They failed to place warning signs at the dangerous approach on the sidewalk.
"(3) They failed to have flares and other warnings posted, warning the oncoming public of said open excavation, and demolished sidewalk, which had been made by them.
"(4) They failed to fill in the open area where the sidewalk was destroyed by them.
"(5) They failed to place any substance in the area that would prevent persons walking on the sidewalk from slipping and falling.
"(6) They allowed jagged and dangerous concrete blocks to remain in the walk-way.
"(7) They allowed mud and slippery substances to remain in the walkway."
Plaintiff avers that the above-described acts of negligence were the direct and proximate cause of his injuries in that the sidewalk in which the open excavation had been made by defendants was dangerous, and that they had actual notice of its dangerous condition, or by the exercise of reasonable care, they should have ascertained the dangerous condition of the excavation, but they allowed it to remain open and unguarded, with no warnings whatsoever, until after the accident. Plaintiff also alleges that he suffered a ruptured intervertebral disc in the lower back as a result of the accident; that as such, he is totally and permanently disabled from performing the duties of a policeman. Plaintiff then itemized his damages.
The Fidelity and Casualty Company of New York intervened in the suit alleging that it had paid plaintiff certain payments under the Workmen's Compensation Act as the insurer of the City of Lake Charles, and asked that in the event there be judgment for the plaintiff, that it recover the amount so paid, together with reasonable attorney's fees.
C. L. Guild Construction Company, Inc., one of the defendants, filed an answer stating that they should not be held responsible in the instant case for the reason that under their contract with F. Miller Sons, Inc. they were not to do any excavation work; that they were not guilty of any negligence giving rise to the accident and injuries which resulted therefrom. Alternatively, they pled contributory negligence on the part of plaintiff. They also filed a general denial to the petition of intervention filed by Fidelity and Casualty Company of New York.
F. Miller Sons, Inc. and Travelers Insurance Company, insurer of Miller, denied generally the allegations contained in plaintiff's petition, and further answering plaintiff's suit, alleged that the negligence of the plaintiff was the sole and proximate cause of the accident, which acts of negligence are alleged to be as follows:
"(1) That he failed to keep a proper lookout in that he had walked this beat a great number of times and knew or should have known the condition of the area;
"(2) That if, in fact, he did fall into some type of excavation, then he did so without taking cognizance of the conditions around him, which would put a reasonably prudent person on notice that construction was in progress in the area;
"(3) That since the plaintiff alleges he was a member of the Lake Charles City Police Department, and that his duties required him to patrol this area regularly, then he had actual notice of any condition in the area of his beat which might have created a dangerous hazard;
"(4) That he failed and disregarded warnings that construction was underway in the area;
"(5) That he failed to see what he should have seen."
After a lengthy trial on the merits, the district judge rendered judgment in favor of plaintiff and against defendants, F. Miller Sons, Inc. and Travelers Insurance Company, in solido, in the sum of $25,929.94. Further, there was judgment in favor of Fidelity and Casualty Company of New York for the amount they had paid the plaintiff as workmen's compensation, together with attorney's fees in the sum of $350.00. There was also judgment in favor of all the other defendants, rejecting plaintiff's demand as to them and dismissing his suit. From this judgment F. Miller Sons, Inc. and Travelers Insurance Company have appealed to this Court.
Counsel for appellants, in his brief and oral argument, assigns numerous errors made by the trial judge. For the purposes of this discussion, we will treat the assignment of errors as two (2) issues. First, whether defendant, F. Miller Sons, Inc., was negligent in the instant case; and, second, if the answer is in the affirmative, whether plaintiff was contributorily negligent so as to bar his recovery.
The evidence reveals that on the 26th day of December, 1959, plaintiff was employed as a sergeant on the Lake Charles City Police force at a salary of approximately $400.00 per month. His duties required him to walk a beat in the vicinity of north Enterprise Boulevard and surrounding area in the City of Lake Charles. During the month of December, 1959, and for some time prior thereto, F. Miller Sons, Inc. was a general contractor engaged in the construction of an expressway over Enterprise Boulevard, the boulevard running generally north and south, between Church and Belden Streets, these two (2) streets running east and west. The construction area began at Belden Street, which was the south line of the right-of-way, and extended northward 30 feet to within approximately 50 feet of Church Street.
During the month of December, 1959, the defendant general contractor, or one of his sub-contractors, was excavating a large hole for the purpose of driving pilings so that concrete columns could be poured, and heavy equipment was used in order to do this work. At approximately 7:30 P.M. on the 26th of December, 1959, plaintiff was walking north on Enterprise Boulevard, and as he approached the locality of the construction activities, he passed the large excavation where the concrete pilings were to be placed, and then returned to the sidewalk and continued in a northerly direction. He proceeded along the sidewalk to a point about 75 feet north of the excavation and fell in a hole containing mud, water and concrete. He was found by two (2) passersby who assisted in removing him from the hole.
The two witnesses who helped plaintiff out of the hole were Sattisfiel Landry and Bernice Lewis. Both witnesses testified that where plaintiff fell there was a large hole in the sidewalk surrounded by broken concrete; that the lighting conditions were bad; and, there were no flares, no barricades or warning signals at the place where the fall occurred. Their testimony also reveals that it had been raining on the night in question, and that it was very dark.
We will now direct ourselves to the first issue in the case at bar, namely, whether defendant, F. Miller Sons, Inc., was negligent in the instant case.
Leo McDaniel, an attorney at law practicing in the City of Lake Charles, Louisiana, testified that at the time of the accident, he had a law office on Enterprise Boulevard a short distance from the scene of the accident; that on many occasions he passed by the work being done by F. Miller Sons, Inc. or its sub-contractors. He stated that trucks and heavy equipment ran over the sidewalk in the vicinity of the accident during the time that the work was being performed. He saw the name of defendant, Miller, on some of the equipment.
After reviewing the record, this Court is of the opinion that the sidewalk was damaged by defendant contractor or by one of its sub-contractors.
The deposition of one Alex Thoten was introduced in evidence, the said party having departed this life before the trial occurred. Thoten testified that it was his job to see that flares and other safety precautions were taken on the particular job for defendant contractor in the instant case. He testified that in December, 1959, a portion of the sidewalk on Boulevard was broken and caved in; that it was his opinion that the cave-in was caused by rain; and that the reason for the sidewalk cracking was the digging operations for the installation of the piers. He stated his job was to place a barricade or flare where the sidewalk washed out. He also stated that he placed barricades and flares where the hole was and where the sidewalk was broken. However, this testimony was refuted by the testimony of Sattisfiel Landry and Bernice Lewis, two (2) disinterested witnesses who testified with certainty that at the time they helped plaintiff, there were no flares or barricades near the scene of the accident.
Under the terms of the contract with the State of Louisiana, the general contractor in the instant case was under a duty to warn the public of any dangerous condition in the area in which it or its subcontractors were operating. This duty is set forth in the contract between the parties. The pertinent provisions read as follows:
"Signs, barricades, etc., will be required during such time as the contractor's work is in progress on the portion, or portions, of the work covered by the work order (partial or full), or when his operations are suspended but the traveled portion of the road is not in such condition as to be safe for the traveling public. During such time that barricades are not in place, appropriate regulatory signs shall be erected and maintained by the contractor. This shall in no way be interpreted to mean that the contractor is relieved of any of his responsibility for the safety of the public as provided in Article 7.08, Division 1 of the standard specifications.
* * * * * *
"The contractor shall provide, erect and maintain all necessary barricades, suitable and sufficient red lights, danger signals and signs, provide a sufficient number of watchmen and take all necessary precautions for the protection for the work and workmen and safety of the public. Highways closed to traffic shall be protected by effective barricades on which shall be placed acceptable warning signs. The contractor shall provide and maintain warning and detour signs at all closures, intersections and along the detour routes, directing the traffic around the closed portion or portions of the highway, so that the temporary detour route or routes shall be indicated clearly throughout its or their entire length. Such warning and detour signs shall conform to the Louisiana Manual on Uniform Traffic Control devices. All barricades and obstructions shall be illuminated at night and all lights shall be kept burning from sunset until sunrise. As a precaution against failure of lights, all barricades placed by the contractor shall be equipped with reflector buttons, disc, scotch light or other suitable light reflecting materials satisfactory to the engineer. The contractor will be held responsible for all damage to the project due to failure of the signs and/or barricades to properly protect the work from traffic, pedestrians, animals and from all other sources, and whenever evidence of any such traffic is found upon the unaccepted work, the engineer will order that the work, if in his opinion it is damaged, be immediately removed and replaced by the contractor without cost to the department. The contractor's responsibility for the maintenance of barricades, signs, and lights shall not cease until the project shall have been completed and accepted."
After an examination of the record, we conclude that the general contractor, F. Miller Sons, Inc., was negligent in not placing flares or other warning devices as provided for in the contract.
Able counsel for defendant states in his brief that a contractor is not the insurer of the safety of pedestrians, but is only under a duty to keep sidewalks reasonably safe. In support of this contention, he cites the cases of White v. City of Alexandria, 216 La. 308, 43 So.2d 618; and, Massicot v. City of New Orleans, (La.App., Orl., 1950), 43 So.2d 621. The case of White v. City of Alexandria, supra, is distinguishable from the instant case in that there was a large street light which illuminated the place where the accident occurred; whereas in the instant case, the evidence is that it was dark at the occurrence of the accident. The Massicot case, supra, is distinguishable from the case at bar in that the court found there was no substantial defect in the sidewalk and that the sidewalk was well lighted.
The duty of a contractor in a situation as exists in the instant case is set forth in the case of Burke v. Werlein, 143 La. 788, 79 So. 405.
The contract between the State and Miller required that the sidewalks be left open for pedestrians. Had the contractor or the sub-contractor not broken the portion of the sidewalk where the accident occurred, it would not have been under any duty to the plaintiff. However, since the defect in the sidewalk was caused by the action of Miller or its sub-contractor, it was then under a duty to warn the public of the dangerous condition thereof by placing flares or other suitable warning devices near the defect in the sidewalk.
We will now discuss the second issue, namely, whether the plaintiff in the instant case was contributorily negligent so as to bar his recovery.
The record reveals that on the night of the accident in the instant case, plaintiff was walking on the sidewalk on the west side of Enterprise Boulevard in a northerly direction; that when he came to the place where the excavation for the pilings was located, he stepped from the sidewalk into the street until he reached a point where the excavation work had stopped, and then returned to the sidewalk, at which time the jagged portion of the concrete gave way and he fell into the hole. The evidence also reveals that in the performance of his duties he had to wear a dark uniform, and that several days before the accident, he had almost been run over by a car. We are of the opinion that the plaintiff did what any reasonable man would have done under the same circumstances, and find that he is not contributorily negligent in this case.
Having determined that the defendant, F. Miller Sons, Inc., was negligent in the instant case and that the plaintiff did not contribute to the accident, the next issue for determination is the matter of quantum.
Without giving a detailed analysis of the medical testimony, the preponderance of said evidence is to the effect that plaintiff suffered a ruptured intervertebral disc in the lower back. This was the opinion of Dr. Jerome W. Ambrister and Dr. Edward W. Phillips, Jr., who examined the plaintiff on behalf of the defendant insurance company.
Defendants contend that the award in the instant case is excessive, whereas plaintiff contends that the award is too low and has answered the appeal asking for an increase in the award.
Counsel for defendants has cited many cases in support of his position that the award is excessive; however, in many of the cases cited, a ruptured disc was not involved; and, where disc cases were involved, the facts were different from the instant case.
In the instant case, plaintiff suffered a herniated disc, was 36 years of age at the time of the trial and was earning approximately $4,800.00 per year. According to the medical testimony, his condition is not expected to improve in the future.
We are of the opinion that plaintiff is entitled to an award of $45,000.00 which includes medical expenses, pain and suffering, permanent disability, and loss of earnings. See Whatley v. Scogin, (La.App., 3 Cir., 1962), 143 So.2d 833; Turner v. State, (La.App., 2 Cir., 1962), 137 So.2d 456; Fullilove v. U.S. Casualty Company, (La.App., 2 Cir., 1961), 129 So.2d 816; Hidalgo v. Dupuy, (La.App., 1 Cir., 1960), 122 So.2d 639.
This award includes the loss of wages, which the record shows to have been in excess of $10,000.00 at the time of trial. Of course, it is well settled that the wrongdoer is not entitled to have the damages for loss of earnings and loss of earning power reduced by compensation or pension payments paid to the injured party from a collateral source to which the wrongdoer does not contribute. See 25 C.J.S. Damages § 99; and, 15 Am.Jur. Damages § 201.
Counsel for the intervenor was awarded attorney's fees in the sum of $350.00 by the district judge. He now admits in his brief that the district judge was in error in making this award. We will, therefore, amend the judgment of the district court so as to disallow the claim for attorney's fees for the attorney for the intervenor in the sum of $350.00.
For the reasons assigned, the judgment of the district court is amended by increasing the award to plaintiff from the sum of $25,929.94 to the sum of $45,000.00, and by disallowing the sum of $350.00 granted by the trial judge to the attorney for the intervenor; and, as amended, it is affirmed at appellants' costs.
Amended and affirmed.
I cannot agree with the conclusions reached by the majority either as to liability or as to quantum.
The evidence shows that a considerable amount of road construction work was being conducted on Enterprise Boulevard, between Church and Belden Streets, in December, 1959. The sidewalk on the west side of Enterprise Boulevard in that block was torn up for a distance of about 350 feet. The fact that heavy construction work was being conducted at that point would have been obvious to anyone in that area, even to a stranger, and plaintiff especially was aware of the condition of this sidewalk, because he regularly patrolled that very block, on foot, as a part of his duties as a policeman. He, in fact, had patrolled this particular block for an hour or an hour and a half late in the afternoon, while it was still daylight, not more than an hour or two before the accident occurred. In walking along Enterprise Boulevard between Belden and Church Streets about 7:00 or 7:30 that evening, after dark, he walked in the street rather than on the sidewalk during most of that distance, because of the fact that the sidewalks were muddy and broken. When he reached a point about in the middle of the block; however, he decided that it would be safer to walk on the muddy and broken sidewalk than to continue walking in the street, because four nights before he was almost struck by an automobile while walking in the street. He said, "I thought it was better to get my feet muddy and to get back on the sidewalk than to continue straight on down the street."
In my opinion, the evidence shows clearly that plaintiff did not fall in an excavation or a hole in the sidewalk and that the concrete did not give way when he stepped on it, as indicated in the majority opinion. He simply stumbled or slipped at one of the many places where the sidewalk had been broken along the entire length of that block. The defendant had done no excavating within 40 or 50 feet of the place where the accident occurred, although I think it is reasonable to conclude that the break in the sidewalk where plaintiff fell was caused by the construction work.
The evidence shows that barricades, signs and lights had been placed on Enterprise Boulevard by the contractor, on each side of the area which was under construction, warning of the danger in that area. Since it would have been obvious to anyone that construction work was being conducted in that immediate area, that the sidewalk was broken all along that entire side of the street, and since plaintiff was particularly well aware of the condition of the sidewalk at that point, it seems to me that it is unreasonable to hold that the defendant contractor was negligent in failing to place additional signs, flares or barricades to warn plaintiff of the danger. Also, if there was any negligence on the part of defendant, it seems to me that plaintiff clearly is barred from recovery because of contributory negligence.
Assuming that defendants are liable, however, I can see no justification for increasing the generous award made by the trial court.
Four doctors testified at the trial, three of whom were called by plaintiff, and not a single one of them was able to express an opinion that plaintiff suffered a ruptured intervertebral disk, as found by the majority. The most that can be said from the testimony of the doctor most favorable to plaintiff is that it was "possible" that he had such an injury, but even plaintiff's physicians said that they would not perform surgery unless there was more evidence than they were able to find indicating that plaintiff had sustained that type of injury. If the medical testimony can be construed as showing that plaintiff now has disability relating to his back, however, then the medical evidence, in my opinion, establishes clearly that there was no causal relationship between the accident which occurred on December 26, 1959, and such disability.
Plaintiff had sustained two back injuries prior to the date of this accident. One occurred on May 19, 1958, about nineteen months before this accident, and the other back injury was sustained by him on July 2, 1959, less than six months before this accident. As a result of the last mentioned back injury plaintiff lost eleven days of work.
The injuries which plaintiff sustained on December 26, 1959, were of such a minor nature that he did not consult a doctor until two days later, his complaints at that time being of injury to his ankle, knee and the left side of the low back area. No bruises or other objective signs indicating a back injury could be found by plaintiff's doctor at that time. Eleven days after the accident occurred, an orthopedic surgeon found atrophy of plaintiff's right leg and an absence of an ankle reflex on the right side. Since atrophy of the leg could not have set in within eleven days after the accident, these symptoms indicated that plaintiff had previously sustained a back injury on the right side some time before the accident of December 26, 1959. I think the evidence shows that plaintiff sustained a very mild strain to the left side of his back as a result of this accident, but that he completely recovered from that injury within three months after the accident, and the only disability of which he complains now is referable to the right side, which the doctors cannot diagnose as a ruptured disk and which seems to me to have no relation to the accident which gave rise to this suit.
Plaintiff was never hospitalized, he has sought and obtained only a minimal amount of medical treatment, and the defendants in this case were not even aware of the fact that an accident had occurred until this suit was instituted just five days before the one-year prescriptive period would have elapsed. Under the facts presented here, I feel that the award made by the trial court was more than adequate for the injuries which plaintiff may have sustained.
For these reasons, I respectfully dissent from the opinion rendered by the majority.
On Application for Rehearing.
En Banc. Rehearing denied.
HOOD and CULPEPPER, JJ., are of the opinion a rehearing should be granted.