McCormack v. Robin

• Decision Date: 09 May 1910
• Docket Number: 17,850
• Citation: 52 So. 779,126 La. 594
• Court: Louisiana Supreme Court
• Parties: McCORMACK v. ROBIN et al

52 So. 779

126 La. 594

McCORMACK v. ROBIN et al

No. 17,850

Supreme Court of Louisiana

May 9, 1910

Rehearing Denied June 28, 1910.

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

Action by Mrs. Marguerite McCormack against Mrs. Emma Robin, the City of New Orleans, and another. Judgment for plaintiff against the city, and plaintiff and the city appeal. Affirmed.

I. D Moore, City Atty., and John F. C. Waldo, Asst. City Atty. for appellant City of New Orleans. B. R. Forman and Rufus J. Paddock, for appellant McCormack.

W. S. Parkerson, for appellees Robin.

MONROE, J. PROVOSTY, J., takes no part, not having heard the argument.

OPINION

MONROE, J.

Statement of the Case.

This is an action in damages for personal injuries sustained by plaintiff in falling over a stone block that was lying on the banquette in front of the house owned by the defendant Mrs. Robin, and rented to Mrs. White. Plaintiff sues Mrs. Robin and her husband, also the city of New Orleans; and defendants, in effect, plead the general denial and contributory negligence, the city calling Mrs. Robin in warranty. The facts are as follows: Plaintiff is rather an elderly lady, who occupied a house on the river side of St. Charles street, the front door of which is, say, 125 feet below the corner of St. Joseph street. She had moved in there in October, 1904, and had not had occasion to pay much attention to the banquette between her house and St. Joseph street up to the time of the accident, which occurred between 7 and 8 o'clock on the evening of December 27, 1904, and she does not appear to have been aware that, immediately in front of the Robin house, which is between the house occupied by her and the corner, there was lying, on the banquette, inside of the curbstone, and in a catercornered position, a block of stone about 3 feet square and, probably, 8 or 10 inches thick. It had formerly occupied a position extending from the curbstone across the gutter and served as a stepping stone. A year, or perhaps two years, before the accident, however, St. Charles street had been paved by the city, or under its direction, with asphaltum, and the stone had been moved, no doubt by the paving contractor, to the position in which the plaintiff unfortunately found, and fell over, it. On the evening mentioned, she, Mr. Laine (who died before the trial in the district court), Mr. Marigny and his sister, Mrs. Coleman, left plaintiff's house with the intention of going to the theater. Mr. Laine went somewhat in advance in order to stop the street car, which was just turning into St. Charles street, at Lee Circle, a block above, the two ladies followed, plaintiff being on the right, nearer the curb, and being engaged in putting on her gloves, and Mr. Marigny being in the rear. Plaintiff testifies that the light was bad; in fact, that it was rather dark. On the other hand, defendants' witnesses say that, diagonally across the street, at a distance of, perhaps, 100 feet or more, there were two electric lights in front of a saloon, and that there was a city light over the intersection of the streets; also, that the hall light in the Robin house threw some rays on the banquette. Upon the whole, however, though very likely plaintiff could have seen the stone if she had been looking closely, we find no reason to doubt her statement that the light was bad. She says that she was not hurrying, but Mrs. White testifies that plaintiff told her, the next day, that she was hurrying. Whether she was or not, she failed to see the stone, and, stumbling over it, fell, and was knocked senseless, sustaining injuries which laid her up for several weeks, and incapacitated her for some time longer. Mr. Kracke, an active man of 40, testifies that, though he sees fairly well, with his glasses on, he stumbled over the same stone. Mrs. White had been occupying the Robin house as a tenant for about 10 years, and she testifies that Dr. Robin, who represents his wife, rarely visited the place, and that, some time after the accident, she asked him to give her the stone over which plaintiff had fallen, for her church, which he readily consented to do, saying that he was not aware that there was such a stone. It is fairly evident that he did not know that, as the result of the paving which the city had done, the stone had been misplaced and had become a dangerous obstruction to the banquette, the fact being, as we take it, that, after the street was paved with asphalt, there was no place and no use for such a stone. Mrs. White concluded not to take the stone, after it had been given to her, and, some time later, it disappeared, and the record does not inform us what became of it. The trial in the district court resulted in a verdict and judgment in favor of plaintiff and against the city of New Orleans for $ 500, the demand against Mrs. Robin being rejected. The city and the plaintiff have appealed.

Opinion.

The charter of the city of New Orleans requires it to "keep open and free from obstruction all streets." Act 45 of 1896, § 14. The right of the citizen to recover damages for injuries sustained by reason of the failure of a municipal corporation to discharge the mandatory duty thus imposed on it is beyond question. Dillon's Mun. Corp (4th Ed.) p. 887 (§ 731), p. 1203 (§ 980), p. 1284 (§ 1020); Buswell's Law of Personal Injuries, §§ 53, 167; Lorenz v. City of New Orleans, 114 La. 802, 38 So. 566; Weinhardt v. City of New Orleans, 125 La. 351, 51 So. 286; Gueble v. Town of Lafayette, 121 La. 909, 46 So. 917; Thompson on Negligence, vol. 5, p. 497, § 6022. No doubt, the person injured may, by his own negligence, so contribute to the injury as...