Blum v. Weatherford & Cary Bros.

• Decision Date: 13 April 1908
• Docket Number: 16,963
• Citation: 46 So. 317,121 La. 298
• Parties: BLUM et ux. v. WEATHERFORD & CARY BROS. et al
• Court: Louisiana Supreme Court

46 So. 317

121 La. 298

BLUM et ux. v. WEATHERFORD & CARY BROS. et al

No. 16,963

Supreme Court of Louisiana

April 13, 1908

Appeal from Civil District Court, Parish of Orleans; Fred. Durieve King, Judge.

Action by Edward J. Blum and wife against Weatherford & Cary Bros. and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

George W. Flynn and Michael Dracos Dimitry, for appellants.

Morgan & Milner, for appellees.

OPINION

BREAUX C. J.

This action is for damages in the sum of $ 10,000.

Plaintiffs lost their little daughter, Ethel, aged 4 1/2 years, on the evening of June 27, 1906, between the hours of 6 and 6:30 o'clock.

She was playing with another little girl, about her age, at or near the St. Louis Canal in the vicinity of North Gayoso street.

One of plaintiff's contentions is that it was a children's playground. Nearby there was across the canal two large boards at the intersection of the canal with Gayoso street. They served as a bridge over which the workmen of defendants rolled their materials in wheelbarrows. These materials were needed in constructing the work at which they were employed.

Plaintiffs' contention is that the defendants had completed their work and had left the place entirely, but, none the less, they neglected to take up the said large pieces across the ditch; that they placed no warning signals, and did nothing else to protect the children of the neighborhood attracted to the place to play; that the approaches to this bridge were not in any way inclosed, and nothing was placed there to warn persons although there was danger; that this bridge had every appearance of having been placed where it was as a convenience for the public to pass to and fro; that there was no danger before the work had been completed, for the defendants had a watchman to warn persons of the danger that after they left they discharged the watchman, and gave themselves no concern about the danger.

Plaintiffs aver that they are poor; they had no means to employ a nurse, and that as it is with others in that condition of life they allowed their children to play on the sidewalk and outside at no great distance from their home; that the boards in question attracted the children. It was a place that they would naturally seek to play.

That defendants knew or should have known of the danger, and should have taken steps to prevent accident; that the child left the playground and followed the approaches on the unprotected crossings, and while on it fell over and was found drowned a short distance afterward; that the child greatly suffered.

The following is the story of the bridge from which the little girl fell: The defendants laid pipes on Gayoso street. Their work extended to a drainage canal -- i. e., the Toulouse Drainage Canal. In order to lay their pipes under the canal it became necessary to construct a coffer dam across the canal.

This coffer dam consisted of two rows of sheet piling driven across the canal. The piling was cut down and decked or planking was put over the top to make it as water tight as possible.

It afterward became necessary to make a gang plank over this water dam and cross the canal to get over from one side to the other.

The workmen wheeled concrete and other material over this gangway. It was the purpose for which it had been constructed or placed where it was.

The stringers of the gangway measured 8 inches by 16 inches and 25 feet in length.

These constructions were placed there by the defendant contractors.

We will here state that the end of the stringers did not reach the top of the bank; they were about 8 feet below the top.

There was an approach from the top of the bank to the end of the stringers; it was an incline.

On this incline the defendants had placed boards the better to roll their wheelbarrows over it. When the defendants left they took away the boards on this incline or approach.

After the defendants had completed their work, they removed all of their material and other property, but left the two stringers across the drainage canal. The date of the accident was about one month and a half after they had left.

While the defendants were at work they had a watchman to see after their property.

The impression among some of the witnesses was that this watchman's duty was to warn the public not to cross.

The weight of the evidence shows that the watchman was not particularly placed in charge of the bridge. In this they were mistaken; his duty was while defendants were putting up the work to see to the protection of their tools and materials.

It is also urged that the defendants should have placed a barricade or something on the approach to warn persons not to cross the bridge.

The testimony also shows that it was not the crossing place.

It is in place to state that the contract made by defendants with the sewerage and water board, the contractee, was to lay pipes in certain designated places, and to leave these places as well as the ditches and canal in the same condition as when the defendants began to work. The defendants had the sanction of the local authorities to work at the place.

There was necessity, the evidence shows, for placing the heavy timbers across the canal; the defendants could not have continued their work without the bridge.

It remains for us to determine whether the defendants were negligent.

We judge the little girl fell from the bridge when about midway. We have noted the contention on the part of plaintiffs is that it was part of the playground and that she was attracted there by the works of the defendants.

The testimony does not sustain that contention. There was no playground near the place where she fell, and really there was nothing to invite the child there. She and her little companion descended the incline about eight feet to get over to the bridge.

It required the fancy and activity of a child to find her way to such a place.

We do not hold that in so doing there was contributory negligence on her part which bars her father and mother from recovering judgment, if defendants were negligent. We have seen that she was only 4 1/2 years old.

We do hold that it was not negligence on the part of defendants not to have suspected that the little child might find her way to these stringers and, in attempting to cross the canal to the other side away from her home, fall and be...