Lorenz v. City of New Orleans

• Decision Date: 08 May 1905
• Docket Number: 15,497
• Citation: 38 So. 566,114 La. 802
• Court: Louisiana Supreme Court
• Parties: LORENZ v. CITY OF NEW ORLEANS

38 So. 566

114 La. 802

LORENZ v. CITY OF NEW ORLEANS

No. 15,497

Supreme Court of Louisiana

May 8, 1905

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

Action by William A. Lorenz, for the use of Lillian V. Lorenz against the city of New Orleans. Judgment for plaintiff. Defendant appeals. Affirmed.

St Clair Adams, Asst. City Atty., and Samuel Louis Gilmore, City Atty., for appellant.

James Thomas Nix and Benjamin Rice Forman, for appellee.

OPINION

LAND J.

Plaintiff sued to recover $ 5,000 damages for injuries to his minor daughter, Lillian, on October 22, 1903, alleged to have been occasioned by her foot and leg going through the rotten and unsafe covering of a public fire well in the middle of the intersection of two streets of the city of New Orleans. Plaintiff also sued to recover $ 111.65 for damages to himself, resulting from loss of time and medical expenses. The petition charged that the city was negligent in not discovering the dangerous condition of said fire well, which could have been done by proper inspection, and in not repairing the defective covering, which formed a part of the public streets.

It was alleged that the hip of the child was dislocated, and her knee was twisted, crippling her, and causing great pain and suffering.

The city answered, pleading the general issue and contributory negligence.

The case was tried before the district judge without the intervention of a jury, and there was judgment in favor of plaintiff individually for $ 61.65 and in favor of the minor for $ 2,500. The city has appealed, and plaintiff has answered the appeal, praying that the judgment be amended by increasing the amount to $ 5,111.65. The child at the time of the accident was nine years old. She was running across the street at twilight, and when her foot struck the covering of the fire well it went through a hole in a rotten plank. Three witnesses state that the plank was rotten. Two of them testified that the hole had been in the plank for several months. Plaintiff testified that he saw the hole in the covering about two weeks before the accident, while driving along the street. No testimony in behalf of the city is found in the record.

The child's hip was dislocated, and she was under medical treatment for several months. For a time she suffered great pain. As to the permanency of the injury, the attending physician testified as follows:

"Well, a joint once dislocated is always much more liable to dislocation again. It remains a weak joint. You may be able to use it, but then the slightest jar or very small injury might get the same joint out of place again."

Another physician, who assisted in the reduction of the dislocation, testified that the injured hip would be more liable to dislocation than it was previous to the accident.

The plank covering of the well was even with the surface of the street, and formed part of the public highway. The hole in the rotten plank was about four inches wide.

The main defense of the city is that it had no notice of this defect in the street, that the existence of this small hole was not generally known in the neighborhood, and the circumstances were not...