Caldwell v. Texas Industries, Inc.

441 So. 2d 472
CourtLouisiana Court of Appeal
DecidedNovember 29, 1983
Docket15823-CA
StatusPublished
Cited by4 cases

This text of 441 So. 2d 472 (Caldwell v. Texas Industries, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caldwell v. Texas Industries, Inc., 441 So. 2d 472 (La. Ct. App. 1983).

Opinion

441 So.2d 472 (1983)

Billy Mack CALDWELL, Plaintiff-Appellant,
v.
TEXAS INDUSTRIES INC., d/b/a Louisiana Industries, Defendant-Appellee.

No. 15823-CA.

Court of Appeal of Louisiana, Second Circuit.

November 29, 1983.

Albert W. Block, Jr., Monroe, for plaintiff-appellant.

Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, for defendant-appellee.

Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.

*473 JASPER E. JONES, Judge.

Billy Mack Caldwell, plaintiff in this slip and fall case, appeals a judgment rejecting his demand for damages against Texas Industries Inc. d/b/a Louisiana Industries. The trial court found plaintiff failed to establish that the concrete upon which he slipped and fell was deposited in his work area by the defendant. We affirm.

The plaintiff was a carpenter employed by Redrock Construction Company on February 22, 1977. Redrock was a contractor engaged in construction work at the site of Olinkraft's paper mill in West Ouachita Parish. Plaintiff was a member of one of Redrock's carpenter crews that was engaged in the construction of forms for the concrete foundation for a new Olin paper machine designated as Machine # 7 and located in Olin paper mill complex. The defendant was supplying the ready-mix concrete required in the construction of the foundation for the paper machine. The concrete was delivered by the defendant in large trucks equipped with large steel drums into which the concrete was loaded at the defendant's plant and from which it was delivered to Redrock at the Olin site. The only employee of defendant on the truck was the driver of the truck. The foundation for # 7 paper machine was located adjacent to a black-top road which traversed the Olin property and which had been abandoned as the former Jonesboro Road. The new Jonesboro Road was located west of the Olin property and the abandoned Jonesboro Road at the time of the facts upon which this litigation is based was located exclusively within the confines of the Olin property and was used as an inner-plant route of transportation by Olin and its contractors. Part of the foundation for the # 7 paper machine was located at such close proximity to the black-top road that the concrete could be poured into the forms for the foundation directly from the chute attached to the defendant's truck while it was parked upon the roadway. This chute could be extended to a length of 13 feet. Other parts of the foundation were located at such a distance from the black-top road that the concrete could not be poured into them from the chute attached to the delivery truck. The concrete placed in these more remote forms was delivered to them by wheelbarrows, concrete conveyors and cherry-pickers (a crane-like device that picks up a bucket of concrete at the truck and moves it to the desired location and there dumps it). The concrete was placed from the truck into the wheelbarrows, concrete conveyors or cherry-picker buckets and thereafter transported by these respective conveyances to the more remote forms.

About 10:00 a.m. on the morning of February 22, 1977 the plaintiff, assisted by a laborer, was carrying a heavy 4' X× 8' previously constructed form to a location for installation in the foundation site for the # 7 paper machine. The form was being carried along the black-top road traversing the construction site. The laborer was carrying the front end of the form and was leading the direction of travel and the plaintiff was carrying the back end of the form. As the plaintiff was carrying the form he suddenly slipped and fell upon a pile of concrete residue located on the black-top road. The plaintiff described the concrete as being 18" in diameter and 1" thick. The form which the plaintiff was carrying obstructed his view of his pathway and he did not see the concrete residue until he had fallen into it.

The plaintiff allegedly sustained substantial personal injuries as a result of this fall. He contends that his fall was caused by the negligence of defendant's truck driver who deposited the concrete residue on the black-top road in the work area. He alleged in his petition that the concrete was washed from the tank of the defendant's truck following a delivery of the concrete cargo at the foundation site.

The plaintiff, two of his fellow carpenters and the Carpenter Union Business Agent all established the plaintiff's version of the accident to the effect that he fell after having slipped upon concrete residue. These witnesses all testified that the accident happened during the mid-morning at approximately 10:00 a.m. They all testified that *474 they had observed defendant's concrete delivery trucks in the area on the morning of and prior to plaintiff's slip and fall.

This testimony indicated that the chute on the rear of the defendant's truck was manipulated by defendant's driver during the delivery of the concrete. This testimony indicated that concrete was frequently spilled onto the roadway at the chute during unloading operations. Some of plaintiff's witnesses also testified they had observed on occasions the trucks being washed out on the roadway following their discharge of the concrete. This general testimony did not relate to the day of the accident nor to the day prior to it.

Archie Smith, one of the plaintiff's carpenter co-workers, testified that on the morning of the plaintiff's fall that all concrete delivered was being poured from the chute on the truck into the foundation forms and that no cherry-pickers, wheelbarrows, or concrete conveyors were being used in connection with the operation.

Archie Smith testified that he had observed one of the defendant's trucks parked in the immediate area where the plaintiff fell shortly before the plaintiff's fall. None of the plaintiff's witnesses testified they saw any concrete being washed from one of the defendant's trucks at the site where the accident occurred.

When the plaintiff rested after having produced the above summarized testimony on liability, the defendant in this bench trial moved to dismiss the plaintiff's suit pursuant to C.C.P. art. 1810(B) on the basis that plaintiff had shown no right to relief and the trial court sustained the motion and dismissed the plaintiff's suit.[1]

The plaintiff appealed the judgment sustaining the motion and dismissing his suit and we reversed the judgment of dismissal and remanded the case for a continuance of the trial. Caldwell v. Texas Industries, Inc., 419 So.2d 86 (La.App.2d Cir.1982). Following our review of the evidence offered by the plaintiff, we held the unrebuted evidence established that it was more probable than not that the concrete residue upon which the plaintiff slipped was deposited by one of the defendant's truck drivers. Following our reversal the trial of the case was resumed on March 16, 1983.

The defendant to rebut the plaintiff's case offered the testimony of its accountant, Tommy Neil Brackman, its superintendent, Emmett White and its dispatcher, Ronnie Drake.

Brackman testified that following the institution of this action and as the result of instructions from a superior he removed from the records of the defendant their work log for February 22, 1977, and the delivery tickets to Redrock for that date and made two photostatic copies of them, one copy of which he retained in his office. This witness further testified that he returned the original of these records to their prior location in a different office and that the original of these records were subsequently destroyed in a flood in September of 1978.

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441 So. 2d 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caldwell-v-texas-industries-inc-lactapp-1983.