Hamilton v. City of Monroe

• Decision Date: 22 April 1954
• Docket Number: No. 8106,8106
• Citation: 72 So.2d 576
• Parties: HAMILTON et al. v. CITY OF MONROE.
• Court: Court of Appeal of Louisiana — District of US

Page 576

72 So.2d 576

HAMILTON et al. v. CITY OF MONROE.

No. 8106.

Court of Appeal of Louisiana, Second Circuit.

April 22, 1954.

Paul Fink, Monroe, for appellants.

Wood H. Thompson, Monroe, for appellee.

AYRES, Judge.

The plaintiffs are husband and wife. They instituted this suit against the City of Monroe to recover damages for injuries sustained by Mrs. Hamilton in an accident while walking along a street of the city, and more particularly while attempting to step down from the sidewalk and curb to the street, and for medical and hospital expense and salary of an attendant incurred on account of said injuries.

As a basis for defendant's liability, plaintiffs averred in their petition:

'That on or about the seventeenth of January, 1953, at approximately 11:00 a. m., your petitioner, Mrs. Dora Hamilton, and her husband, James C. Hamilton, were walking on the sidewalk on the east side of Jackson Street, Monroe, Louisiana, in front of Troy & Nichols Insurance Agency, directly in back of and to the rear of two ladies who stepped down from the sidewalk to the street at the southeast corner of the intersection of Jackson Street with Harrison Street, and that when she attempted to cross the street, walking from the sidewalk to the street, the heel of the shoe of her left foot struck and caught under a steel rod which had become loose from the edge of the curbing and was protruding about two inches above the sidewalk, causing her to fall in the street.

'* * * that the steel rod was used in binding the curbing at the edge of the sidewalk, and that it had become detached from the sidewalk and broken or separated from the other portion of the steel rod that was binding the remainder of the curb; and that it was protruding about two inches above the sidewalk; and that when the heel of Mrs. Dora Hamilton's shoe became caught in the detached or broken steel rim, that it cut or tore the heel off of the shoe and precipitated Mrs. Hamilton to the street'.

It was further alleged that the city had caused the concrete sidewalk at the scene of this accident to crack and sluff off by breaking or cutting the sidewalk for the installation of electrical power lines some two years prior to the date of the accident. During that period of time, it was alleged that the city and its employees had actual or constructive notice of this defective condition in the sidewalk and had failed to repair it.

Defendant denied the material allegations of plaintiffs' petition, and particularly denied it had any constructive or actual knowledge or notice of any defect in the curbing, if such defect existed. In the alternative it was alleged that the sole cause of the accident was the independent and contributory negligence of plaintiff 'in that she failed to exercise ordinary care in crossing the street at the point alleged, and in not keeping a proper lookout, and in not watching where she was going and stepping into the street without taking any precaution whatever; without observing ordinary care, and without seeing that which was obvious and apparent'.

Defendant further averred its lack of notice and knowledge of the steel rod protruding above the sidewalk and alleged that if such condition existed for any appreciable length of time such did not constitute a trap, was not a dangerous condition and was not negligence.

An exception of no cause and of no right of action was filed and overruled by the trial court. With reservation of all rights thereunder, defendant answered, and, after trial, judgment was rendered rejecting plaintiffs' demands and dismissing their suit at their cost. From that judgment an appeal was taken to this court.

The exception has been re-urged before this court, but our conclusion as to the proper determination of this matter on the merits dispenses with the need for further consideration of the exception.

Mr. W. I. Neel, civil engineer, with thirty-five years' experience and formerly city engineer for the defendant, testified for plaintiff, describing the circular turn at the southeast corner of the intersection, the scene of the accident, as having been crumpled considerably, probably by expansion and contraction, and cracked badly, small pieces of which had fallen away, leaving exposed the steel curb guard, which was broken at one point and curled up, possibly an inch or two above its normal position. An imprint of the rod could be seen where it was imbedded in the curbing. This condition, in the witness' opinion, was the result of natural contraction and expansion due to weather conditions over a considerable period of time as there was no evidence of any new construction.

Mr. Wayne H. Hackaby, Commissioner of Streets and Parks of the City of Monroe and a registered engineer, corroborated Mr. Neel on the point that natural causes were responsible for the aforesaid condition, but added that abrasive action of wheels and impact of wheels turning the corner and striking the curb aided the natural wear and depreciation existing in the sidewalk and curb. His first notice or knowledge of the existence of the alleged defect was when defendant's attorney called him after the accident. On going to the scene he saw the metal strip from across the street, which was clearly visible and readily observable by any one. There was nothing concealed about it. It was his opinion that the curb and sidewalk were maintained in a reasonable safe condition for persons who used them and exercised ordinary care and prudence.

Mr. Luther T. Harper, the present City Engineer, reiterated the lack of notice or knowledge on the part of the defendant of the existence of any defects in the street or sidewalk.

Mr. James C. Hamilton, one of the plaintiffs, testified, from an inspection of the scene made subsequent to the accident, corroborating the other witnesses as to the broken concrete and curb, and showed there was a steel rim on top of the curbing which could be pressed down with hit foot and on being released would come back up. Plaintiffs' testimony shows they had walked along the sidewalk and stopped to await a change in traffic signals whereupon two ladies preceded them off the sidewalk and curb to the street. Following these ladies and as she likewise walked forward, Mrs. Hamilton's shoe heel caught on the steel rim, causing her to fall to the street, breaking her leg below the hip. The accident happened between 10:00 and 11:00 A.M. on a bright day.

In the case of White v. City of Alexandria, 216 La. 308, 43 So.2d 618, 620, wherein plaintiff in the nighttime sustained injuries in an accident from a defect in a sidewalk in the middle of a city block, which was unlighted and without warnings or lights of any kind to indicate to pedestrians the existence of a dangerous step-up in the sidewalk, the Supreme Court, citing many of the cases of this State involving sidewalk accidents, stated:

'From this jurisprudence there have evolved certain legal principles which are to be considered in determining the instant controversy. Thus, a municipality is not an insurer of the safety of pedestrians. It must keep the sidewalks reasonably safe, but the maintaining of them in perfect condition is not necessary. To render it liable in...