Cline v. Crescent City Railroad Co., & City of New Orleans

• Decision Date: 01 December 1889
• Docket Number: 10,394
• Court: Louisiana Supreme Court
• Parties: MRS. MARY CLINE, INDIVIDUALLY AND AS TUTRIX, v. CRESCENT CITY RAILROAD COMPANY AND CITY OF NEW ORLEANS

6 So. 851

41 La.Ann. 1031

MRS. MARY CLINE, INDIVIDUALLY AND AS TUTRIX, v. CRESCENT CITY RAILROAD COMPANY AND CITY OF NEW ORLEANS

No. 10,394

Supreme Court of Louisiana

December 1, 1889

APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

B. R Forman, for Plaintiff and Appellant.

John M Bonner, for Defendant and Appellees.

OPINION

WATKINS, J.

This action is for the recovery of damages against the defendants in solido, for having negligently caused the death of John Cline, husband of the plaintiff Mary Cline, and father of her daughter Kate. In the petition it is charged that "on or about January 21, 1889, John Cline * * was driving upon Calliope street, between St. Charles avenue and Prytania street, and while in the exercise of due care and caution, and without negligence on his part, ignorant of the dangerous condition of the street his vehicle got into a hole in the street by the side of the railroad track, and ran against a loose rail of said Railroad Company, and suddenly and unexpectedly was stopped thereby, and * * was violently thrown upon the loose rail and spike of said Railroad Company, and had his skull broken. He suffered great pain and agony of mind and body, and then died."

The City answered, but the Railroad Company filed several exceptions, the first of which was sustained by the Judge of the Court below, and the suit dismissed quoad said company, and from that judgment the plaintiff appeals.

I.

The exception which was sustained is as follows, viz:

"The plaintiff has no right to join the City of New Orleans and this defendant, in the same action, and sue them in solido in the same suit."

This exception puts on trial the adequacy of the averments of plaintiff's petition, and hence we quote them:

"The petition of Mrs. Mary Cline in her own right, and as tutrix of her minor daughter Kate Cline, respectfully shows that petitioner resides in this city, and that the Crescent City Railroad Company, a corporation of which William J. Behan is President, and which is domiciled in New Orleans, and the City of New Orleans are indebted in solido to your petitioner in the sum of $ 30,000 damages for this, to-wit:

"It is the legal duty of the City of New Orleans to keep its streets in good order and repair and safe for use by the inhabitants. Calliope street is a public street, paved many years ago between St. Charles avenue and Prytania street with square blocks of granite at the expense of the abutting proprietors.

"The said Railroad Company by virtue of the city ordinances and contracts by which it acquired the franchise to lay its tracks and run its cars through the public streets, including Calliope street, between St. Charles avenue and Prytania street, is bound to keep the streets through which its tracks are laid and its cars run in good order and repair and safe for the use of the people and is so bound as a part of its duty to the public independently of its contract. The said City and said Railroad Company were both guilty of a gross breach of their duty as above set forth from the 1st to the 21st of January, 1889, during which time Calliope street, between St. Charles avenue and Prytania street, was in a very bad and dangerous condition, which fact was well known to the officers and agents of the said two corporations, whose duty it was to keep the said street at that place in repair and safe for the use of the inhabitants. There was a deep hole by the side of the track of the said Railroad Company, a loose rail and a spike which were to the knowledge of the officers of the said two corporations dangerous, and which had previously to the 20th January, 1889, caused injury to various persons lawfully traversing said street at said place. Said bad and dangerous condition of said street was due to gross carelessness and negligence of the said two corporations."

The question, therefore, is whether, as matter of fact, defendant's solidarity of obligation is, in legal affect, alleged, and not whether, as matter of law, it exists. To decide the latter, would be, in great measure, to decide the law questions in the case, before the merits are reached; while, in adhering to the former, we assume that the allegations of plaintiffs' petition are proved, and judge of the prima facies of the case.

The view taken of it by defendant's counsel is -- quoting from his brief at page 3 -- that "if these defendants be bound to repair, and keep in repair the public streets, the obligation to do so arises from two entirely different sources. In the case of the City of New Orleans, the obligation arises from the act of the Legislature, and is an obligation imposed entirely by law. But, on the part of the Crescent City Railroad Company, the obligation grows out of its contract with the city, and is purely contractual in its nature. There is, therefore, no solidarity of obligation." (Italics, except the last, are ours.)

Now, if his proposition be conceded, it only serves to demonstrate what the sources of the defendant's obligations are, and not what they are alleged to be. But the plaintiffs' petition not only avers it to be "the legal duty of the City of New Orleans to keep its streets in good order and repair, and safe for the use of its inhabitants;" and that "the railroad company, by virtue of the city ordinances and contracts, by which it acquired the franchise to lay its tracks and run its cars through the public streets, * * * is bound to keep the streets through which its tracks are laid and its cars run, in good order and repair, and safe for the use of the people;" but the additional averment is made that the railroad company "is so bound, as a part of its duty to the public, independently of its contract." (Italics ours.)

It is also avered that "the said city and said railroad company were both guilty of a gross breach of their duty, as above set forth, from the 1st to the 21st of January, 1889, etc."

It is also avered that "there was a deep hole by the side of the track of the railroad company, a loose rail and a spike, which were, to the knowledge of the officers of the said two corporations, dangerous, * * and that said bad and dangerous condition of said street was due to the gross carelessness and negligence of the said two corporations."

From all of these averments it appears that plaintiffs' chief reliance, for the establishment of the solidarity of the defendants' obligations, does not rest upon the stipulations of the city charter, and that of the railroad company, so much as upon their breach of a public duty, and their gross carelessness and negligence, which are alleged to have been mutual to both, and caused the fatal accident to Cline.

It is made the duty of the city "to open and keep open and free from obstruction all streets, public squares, etc., * * and to keep the streets and crossings * * clean and in repair, etc.;" and the Council are required to pass such ordinances as may be necessary and proper for that purpose, and to see to their faithful execution. Secs. 7 and 36 of Act 20 of 1882.

In the contract between the city and the Crescent City Railroad Company, there is a provision to the effect "that the streets through which the road will be built shall be kept in repair, from curb to curb, during the continuance of the term embraced in its charter, at the expense of said company." Jewell's Dig. (1887), p. 257, Art. 328.

The foregoing provisions embrace, substantially, the contractual relations between the city and the public, and the Crescent City Railroad Company with the city, towards the public -- treating the city charter as a contract merely for the purposes of argument. For it is a recognized principle that "municipal corporations, as respects the property which they hold, control and manage for the benefit of their citizens, are governed by the same rules and subject to the same liabilities as individuals are." Cooley's Const. Lim., p. 276.

Then, let us see whether there is any substantial foundation in law for the averments in the petition, that it is the legal duty of the two defendants to keep the streets of the city through which this railroad passes "in good order and repair and safe for the use of the people;" and that the railroad company "is so bound independently of its contract."

I.

We will first consider the obligations of the city. In a well reasoned opinion, and upon a careful review of authority, our predecessors maintained the doctrine of implied municipal liability, in O'Neill vs. The City of New Orleans, 30 Ann. 220, and said:

"By the twenty-sixth section of its charter, the City of New Orleans is bound to keep in repair its paved and unpaved streets, and -- though not an insurer against accidents -- it is liable for those injuries which result from its neglect to maintain, in a safe condition, the sidewalks and bridges within its limits."

This doctrine has been constantly maintained in a variety of cases through a long series of years. In Johnson vs. Municipality, 5 Ann. 100, it was substantially stated that the liability of municipal corporations for the acts of their agents is a general rule of law, too well settled to be seriously questioned.

This case was preceded by similar opinions in McGary vs. City of Lafayette, 12 R. 668; Chose vs. Mayor, 9 La. 343; Ware vs. Barataria Canal Company, 15 La. 168; Mebie vs. Canal Bank, 11 La. 86.

It was also held to be a correct exposition of law in a recent and conspicuous case, State ex rel. Folsom vs. Mayor, 32 Ann. 716, in which the court had under consideration two judgments against the City of New Orleans for damages done to the property of relators by a mob or riotous assemblage. In treating of this subject, we said:

"We are, however, unable to...