
    F. E. GRACE VS J. A. PETTY
    NO. 8919
    COURT OF APPEAL PARISH OF ORLEANS
    WIIXIAM A. BEIX, JDDGE.
    MAY 14, 1923.
    
      
    
   By miilia-Ai -BEBI. "Judge

In'this .@últ¡!,---wflíoh is for damages ex delicta, plaintiff seeks recovery in the sum of #10-,000.00 for injuries alleged to have Men sustained' by.him heoause .of negligent acts of the defendant■'a. workmen.whilei they were constructing a certain roof ■ over tna whqrr-belonging to the "Dock Board on the levee near . .Fourth Street,- in this .city. She defendant was a contractor engaged: ir* roofing;and painting a shed for the Does Board, and . plaintiff ,'vrho:.was ..employed hy .the-Board to inspeot the painting ■’which was. hei-ng'.done hy this,.contractor, claims that on Ootoher . £6, 1921V.,while he was .performing.ais duties.ais inspector, he was struct: -on the head ana shoulders hy a plant which, fell upon him - •from-the purltlns ..of the roof, knocking him unconscious: ■ causing concussion''pf .the '.brain, brúahutrarns.and bpuisea. on-the forhsad ; and other ..bodily injuries. Hhe petition further sets forth that' ■ ■'one of the oarpenla||r’'s helpers, an employee of the defendant, -Carelessly and-negligently threw down or let fall from,the.raft— -ers of .the roof or. she.d, -the lumber-which struck plaintiff; .that' he-was taken, to. the hospital, where he remained for .four days; ,and whs confined to his b'ed at home for a .week longer, and‘unable to. return-to his. work until- Kovember '8th, some thirteen-days after the accident, ■ She '.-defendant answers by. acknowledging the ..-fact of the'.aoQidentv.-'-'but denies the injury claimed to-have been sustained and .also denies, that/.he or'.his employee was in any manner negligent or - responsible for the accident, and finally charges that plaintiff -was- guilty of grass, contributory negligence in placing himself-in-a, position, of danger, whioh was open and .apparent. From a Judgment-'fey defendant; plaintiff -has appealed.

'She surrounding .-olroumatañoes from which the accident' occurred and the nature of-'the work-under construction is made . very-clear by-plaintiffs ’own-witnesses.. V<e find from their - te's-timony that carpenters in defendant's employ were laying and nailing sheathing on the purloins of the roof; that upon completion of one section, averaging about twenty feet, they would advance for similar work, the painters immediately following them to paint the exposed sheathing .just laid. Plaintiffs duty was to inspect the painting (not the carpenters1' work) as it progressed, a fact which did not require him at any time to place himself beneath the open and uncovered purloins, where more or le3S dangerous work of the carpenters was being done, some fifteen or twenty feet away from the painting work. The plaintiff's own testimony on cross-examination clearly defeats hi3 right of recovery for the reason that he admits having had full knowledge of the nature of the work that was being done by the carpenters, and that he knew of other lumber having fallen on previous occasions, and that he oust have been, at the moment of the accident, standing immediately under the pl«oe where sheathing was being done. ,ie quote from plaintiff's testimony, in part, as follows:

"5.-How long had you boon inspecting this shed",
"¿.-This Fourth otreet shed/
’Jo.-Yes, sir",
"¿.-I have not the exact dates.
"". -I just want to get an idea, was it a -week, 10 days or two or three weeks’,
"A.-I guess three or four weeks.,
"3.-You had been there every day’,
"A.-Yes, sir.
"You had been there from the time the job,had begun, the sheathing in the shed and laying the roof’,
"A.-Yes, sir.
"".-You were standing right.under the place where the men were sheathing, were you not’,
"a.-They would lay the deck so the carpenters could pull it in place and nail it.
"3.-You wore standing immediately under that’,
sir, I must have been.
"7.-The boy v-as carrying lumber right over your head’,
"A.-I didn't see him; he must have been.
"".-There was nothing to keep you from seeing it’,
"A.-I had no business to look up.
"3.-Sid you look up',
".-i.-Ifo, sir.
"You paid no attention to the men who ’were 1-ying and carrying the lusher right over your head’,
"A.-IIo, 3ir.
"¡¡¡.-In your previous experience for three weeks in that work on that wharf ho.d any piooe of lumber fallen around you ,
were "A.-It fell in the road there where the trucks passing. lots of it were falling around, yes.”

Another one of the plaintiff's witnesses testifies that the oarpenttrs weré about twenty-two feet above a-nfl that he, plaintiff, was directly underneath tnem when he got hurt. He do not find, nor did the judge & quo, that defendant was guilty of any negligence. She court's written reasons for judgment are in acoord with our views, both as to the facts and the law of this case.

IT IS, THEREFORE, ORDERED, ADJUDGED ADD DECREED that the judgment herein appealed from be and the same hereby is affirmed, at plaintiff's costs in both courts.

JUDGMENT AFFIRMED.

MAY 14, 1923.  