Davie v. M. Levy & Sons

• Decision Date: 01 May 1887
• Docket Number: 9822
• Citation: 2 So. 395,39 La.Ann. 551
• Parties: WASHINGTON DAVIE v. M. LEVY & SONS
• Court: Louisiana Supreme Court

2 So. 395

39 La.Ann. 551

WASHINGTON DAVIE v. M. LEVY & SONS

No. 9822

Supreme Court of Louisiana

May 1, 1887

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

W. S Benedict and Branch K. Miller for Plaintiff and Appellee.

Braughn Buck, Dinkelspiel & Hart for Defendants and Appellees.

OPINION

WATKINS J.

This is an action for the recovery of $ 15,000 damages from defendants, on the grounds stated in the petition of plaintiff, viz:

Plaintiff was a member of a fire company composing, along with the members of other companies, the Firemen's Charitable Association, which, at the time of the occurrence of the facts stated in this petition, was under a contract with the city of New Orleans to extinguish fires. That the duty of extinguishing fires under said contract was actually performed by the members of plaintiff's fire company, who were also members of the Firemen's Charitable Association.

That plaintiff, while on his way to a fire, riding upon the truck of his company, along a public street, in accordance with his duty, to aid as a member of said two organizations, in the extinguishment of the said fire, on a dark night, about 11 o'clock, was knocked off of the truck by a "coal run;" which was a sort of bridge built across the said street at about an average height of eight feet from the level of the street, leading from the coal yard, owned and operated by defendants, across said street and to the water's edge of the Mississippi river, on a street fronting which said coal yard was situated. Plaintiff charges that said "coal run" was erected by defendants without authority, and was a public nuisance established by defendants. An ordinance of the city is pleaded, permitting fire engines to proceed to fires, at such rate of speed as the drivers thereof may deem necessary.

This suit is for damages caused by his being knocked off of the truck by said "coal run," under the circumstances detailed in the petition.

The defence is: 1st. Contributory negligence, consisting of plaintiff's riding upon the said truck on his way to the fire; 2d. That said truck could have passed under said run without damage to plaintiff, if carefully driven; 3d. That the driver of the truck was warned not to pass under said "coal run;" 4th. That defendants had employed a competent contractor to put into said coal yard, from a flatboat lying opposite in the river, a quantity of coal; that for this purpose said contractor erected said "coal run;" that defendants reserved no control over said contractor; that said contractor alone was responsible to plaintiff.

I.

As the court below sustained defendants' last ground of defense, and rejected the plaintiff's demands, we will examine it first.

We find in the record the lucid and elaborate opinion of one of our learned brother of the district bench, who seems to have attended most carefully to all the facts of the case, and we have made the following extracts therefrom, viz:

There was on North Peters street "a coal-run, or bridge, which had been put, and was used (temporarily) as a passage for coal wheelers, who were engaged (not at the moment, but during the day) in discharging a boat-load of coal from a barge in the river, to the yard of the defendants, which faced the street at that point.

"The coal barge in question, as well as I can gather from the testimony, was distant from defendant's yard between seventy-five and one hundred feet, of which about thirty was made up of the street proper or roadway, and the balance, of the banquette next the coal yard on one side, and the levee on the other.

"Upon each side of the roadway was a trestle -- the one nearest the river being about seven and a half, or eight feet high; and the other nearest the yard, on the edge of the banquette, being about ten feet, or more, high.

"From the coal barge, across the levee, and ascending over these trestles was a continuous line of staging, or planking, across which the coal was wheeled, over defendants' fence and into their yard.

"This 'run,' as it is called, had been put up the day before the accident, and had been used the whole of that day. A baker's wagon had, however, come in contact with it, as at first constructed, with some damage to the top * * and it had been raised, where it spanned the street, some five or six inches; after which vehicles of various kinds passed under it without difficulty.

* * * * *

Again: "The evidence shows that for many years past the coal dealers of this city, who have their yards on the levee, have had the coal, they buy in barges in the river, discharged into their yards by contract; and that there are men, whose business it is to take such contracts, and who engage to furnish the labor, the implements and the material necessary to the work, and to transfer the coal, from the barge to the yard, at rates varying from three to four cents per barrel.

"It is further shown that defendants made such a contract with Pendleton Harris, and that Harris agreed to transfer about 9000 barrels of coal, from a barge which defendants had bought -- and which was then lying in the river in front of their yard -- into their yard at the agreed price of 3 1/4 cents per barrel; Harris to furnish everything necessary to the work, and to receive his pay, when it should be completed.

"That Harris has been in the business, as a contractor, for about nine year, and is regarded as a competent and reliable man; and that it is a common and every-day occurrence for him, and other contractors, to build these runs, from the levee to the different yards, in order to carry the coal up, and make a pile of it, rather than spread it out over, perhaps, more space, that the yard would afford.

"One of the defendants testifies that he told Harris, when the contract was made, that he (Harris) must so deposit the coal in the yard, as to leave room for two carts to turn round and get on the scales; and that this was part of the contract , as originally made.

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