
    No. 10,169
    Orleans
    HENDRICKS, Appellant, v. MAISON BLANCHE CO.
    (January 17, 1927. Opinion and Decree.)
    
      (Syllabus by the Court)
    
    1. Louisiana Digest — Negligence—Par. 10, 11.
    It is not ordinarily the duty of an employee to assist the customer in a store in descending from a shoeshine stand in the absence of a request for assistance or of evident necessity.
    2. Louisiana Digest — Negligence—Par. 1, 10, 11.
    To maintain an action by a customer against the owner of a store for apparent defects in the building two elements must concur, viz.: fault on the part of the master, and ignorance of danger on the part of the customer.
    3. Louisiana Digest — Negligence—Par. 25.
    Negligence on the part of the customer will defeat his action.
    (Civil Code, Article 2315. Editor’s note.)
    Appeal from Civil District Court. Hon. Wm. H. Byrnes, Jr., Judge.
    Action by Mrs. M. Hendricks against Maison Blanche Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jos. H. Brewer, of New Orleans, attorney for plaintiff, appellant.
    Gordon Boswell, M. B. 'Williams, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit for falling from a shoeshine stand. .

The plaintiff made the following allegations : .

That she is “above the full age of majority”; “that on March 15, 1924, she entered the department store operated, by defendant herein for the purpose of making certain purchases and that while therein she noticed a shoeshine parlor or stand being operated by the defendant herein, said shoeshine parlor or stand being open to the public; accordingly petitioner mounted the shoeshine parlor or stand which extends upwards, the seat being several feet above the ordinary floor level”.

“Your petitioner alleges that she instructed one of the employees of the defendant herein to shine her shoes and that the employee of the defendant carried out her instructions, and a little later, having been told by the employee assigned to the shining of shoes in this department that the shining of said shoes was completed, your petitioner deeming it safe to get down from said stand proceeded to do so, when suddenly and without any warning whatsoever or negligence on her part, she fell violently to the floor and sustained the following damages: * * * Your petitioner avers that the said accident was caused solely by the negligence of the defendant’s employee assigned to said shoeshine parlor or stand, first, in not aiding and assisting plaintiff from the said stand, and second, by the negligence of the defendant in not providing a more suitable and safer stand for the shining of shoes; third, that she used due care and diligence in getting off of said stand, but that in spite of her care and diligence she fell and was injured.”

She prayed for $40,375 damages.

The defendant excepted that plaintiff’s “petition does not recite, set out, or disclose a right or cause of action”.

The exception was sustained and the suit dismissed. Plaintiff appealed.

We are of the opinion that the judgment is correct. The negligence charged to the defendant is twofold:

1st. That defendant’s employee did not assist plaintiff from the stand.

There is no allegation that assistance was necessary, or customary, or that plaintiff asked it and was refused. On the contrary, the plaintiff alleged that she was “above the full age of majority”. The presumption arises that she. was able to take care of herself.

It is not ordinarily the duty of a carrier to assist a passenger in alighting in the absence of notice that he needed assistance.

“A mere general allegation that it is the duty of a conductor to assist a female passenger in alighting from a car is subject to a special demurer.” 80 S. E. 626; 2 L. R. A. Digest 1282; Hutchinson on Carriers, Sec. 1127; 10 C. J. 830.

“If, owing to physical peculiarities of the plaintiff it was unsafe for her to use the appliances (steps of a street car) which are altogether adequate for ordinary passengers, she ought to have called the attention of the employee of the defendant company to that fact and asked for assistance. It is not, in such circumstances, negligence for the employees of the company to fail to volunteer their assistance.” 71 Pa. Sup. Ct. 103; 24 N. C. C. A. 621. See also Freeman vs. N. O. Public Service Inc., 1 La. App. 600; Bass vs. I. C. Ry. Co., 4 La. App. 175.

2nd. There was no allegation that the “stand was defective in its construction”, except that it “stands several feet above the floor level,” nor that it was constructed in a manner different from or more dangerous than other stands. At any rate that danger, if it was one, was apparent, and which plaintiff, by due care, could have guarded against. The defendant was bound only to use ordinary care in furnishing the stand to its customers. Yet where employees have been injured under similar circumstances the rule is that masters are bound only to furnish them such places or appliances as are reasonably safe and are in general use. 26 Cyc. 1107; Jones vs. Jahncke Service, 3 La. App. 270.

In the case of Flynn vs. Sporl, 3 Orl. App. 441, it was so decided. The plaintiff was an employee; she slipped upon the step3 and alleged that there was a defect in their construction. The court said:

“The alleged defect was apparent and the plaintiff assumed the risk; the employer was bound to give only the reasonable safe appliances in accordance with the nature, custom, necessities of the business.”

In support of its opinion the court cited Carey vs. Selleris, 41 La. 500, 6 South. 813, in which it was said:

. “To maintain an action by a servant against a master for an injury resulting from defective buildings, premises or appliances, two elements must concur, viz.:

“Fault or knowledge on the part of the master; innocence of fault or ignorance of the danger on the part of the servant.”

“However gross the fault of the master in subjecting the servant to risk from such causes, yet when the servant knows the defects and danger and still knowingly .and without protest consents to incur the risk to which he is exposed thereby, he is deemed to assume such risk and to waive any claim for damages against the master for injury resulting therefrom.” 1 Labatt S. 274; Tillotson vs. T. & P. R. R. Co., 44 La. Ann. 95, 10 South. 450; Cooley on Torts 55; 47 N. W. 182; 139 N. Y. 369; 48 Atl. 493; Wood M. & S. S. 334; 138 Mars. 390; 72 N. Y. Supp. 67; 119 N. Y. 221; 47 Fed. 690; 170 U. S. 665.

“Where an employee is not placed by an employer in a position of undisclosed danger, but is a mature man doing the ordinary work which he was engaged to do, and whose risks are obvious to anyone, he assumes the risk of the employment, and no negligence can be imputed to an employer for an accident to- him therefrom.” Moffet vs. Krach, 106 La. 372, 31 South. 40, adopting the syllabus in Kohn vs. McNulta, 147 U. S. 238. Also Clogher vs. N. O. Ry. & Lt. Co., 143 La. 85, 78 South. 247.

In Wave vs. Evangelical Baptist Society, 181 Mass. 285, 63 N. E. 885, it was said:

“It is a matter of common observation that on entering and leaving stores, halls, railways, cars, stations and platforms, office buildings, and other buildings and places and private houses, adjoining surfaces are frequently at different levels, and the difference in level has to be overcome by one or more steps, or by some other device. The same thing happens in the interior of buildings and structures. We cannot think that such a construction is of itself defective or negligent, and where the plaintiff fell down a step or steps it would say that the accident was due, to say the least, quite as much to her own inattention as to the presence of the step.” Wiggins vs. Standard Oil Co., 141 La. 533, 75 Sopth. 232.

3rd. It is perfectly evident that it was plaintiff’s want of care or her negligence that caused the accident. This bars her from recovery. Gibbons vs. N. O. Terminal Co., 1 La. App. 371; Mercier vs. New Orleans & C. R. R. Co., 23 La. Ann. 264; Schwartz vs. Crescent City R. Co., 3d La. Ann. 15; Houston vs. Vicksburg S. & R. R. Co., 39 La. Ann. 799, 2 South. 562; Pollock vs. T. J. Sellers Co., 42 La. Ann. 623, 7 South. 786; McCarthy vs. Whitney Iron Works Co., 48 La. Ann. 97, 20 So. 171;

Williams vs. Liberty Stores, Inc., 148 La. 450, 87 South. 233.

The plaintiff has asked that this cause be remanded to enable her to file an amended petition. But this suit was filed on September 3, 1924. The defendant is entitled to his peace of mind. There must be an end to litigation. It does not appear to us that the plaintiff can make other allegations to give her a cause of action. But if she can she may make them in another suit. For these reasons the cause will not be remanded.  