Scott v. City of New Orleans

• Decision Date: 09 June 1896
• Docket Number: 474.
• Citation: 75 F. 373
• Parties: SCOTT v. CITY OF NEW ORLEANS.
• Court: U.S. Court of Appeals — Fifth Circuit

75 F. 373

SCOTT v. CITY OF NEW ORLEANS.

No. 474.

United States Court of Appeals, Fifth Circuit.

June 9, 1896

Percy Roberts, for plaintiff in error.

Samuel C. Gilmore, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and SPEER, District judge.

McCORMICK Circuit Judge.

On April 27, 1895, Louis Hellwig brought his action against the city of New Orleans, claiming that it was indebted to him in the sum of $20,000, charging as follows:

'That it is, and has been for many years past, the duty of said city to keep the sidewalks or banquettes within its limits and especially the banquettes on Julia street, in said city, between Camp and St. Charles streets, in good and safe condition, and to have the same raised and leveled to the grade fixed by the said city, and make said sidewalks or banquettes safe and secure to pedestrians. That on the said 13th of February, 1895, your petitioner was walking from Camp towards St. Charles street, on the sidewalk or banquette on the lower side of said Julia street, and using due care, and without fault on his part, when, by reason of the said breach of duty of said city, and the dangerous condition of said banquette brought about by said breach of duty, he fell heavily to the sidewalk, breaking his kneecap, and receiving other and severe injuries from the fall. That he has ever since that fall, and as a consequence thereof, suffered great pain of body and of mind, and become a permanent cripple, whereby he has been damaged in the sum hereinbefore claimed.'

In answer to this petition, the city pleaded the general issue and that, if the plaintiff was injured as he alleged, the accident that caused his injury happened through his gross carelessness and contributory negligence. On June 4, 1895 there was a trial, and the jury, after hearing the pleadings, evidence, and arguments of counsel, and receiving a charge from the court, retired to deliberate as to their verdict, and, after due deliberation, returned and delivered into court the following verdict:

'New Orleans, June 4, 1895.

'We, the jury, find for the plaintiff in the sum of eighty-seven hundred dollars ($8,700).

Isaac B. Ellis, Foreman.'

On June 6, 1895, the defendant moved for a new trial, which motion came on for hearing on June 15, 1895, and was argued by counsel, when the court took time to consider. On November 15, 1895, the plaintiff died; and on the 26th of that month his testamentary executor, Walter Scott, on due motion and order of the court, became party plaintiff herein. On December 3, 1895, action on the motion for a new trial was announced, and judgment thereon entered as follows: 'On consideration, orally assigned, it is ordered that a new trial be granted herein, and that the verdict and judgment heretofore entered be annulled and set aside.'

On December 17, 1895, the case was again called for trial, and was heard before a jury, during the progress of which the defendant made the following motion:

'On motion of E. A. O'Sullivan, city attorney, of counsel for defendant herein, made in the presence of the jury, the evidence both of the plaintiff and of the defendant having been closed, and the case submitted, suggesting to this honorable court that the evidence clearly shows that the plaintiff has absolutely failed to make out such a case as will entitle him to a verdict in his favor: (1) Because the evidence fully establishes the fact that the accident which befell the plaintiff happened in broad daylight, namely, at 1 o'clock p.m.; (2) that the evidence of the plaintiff himself shows that the obstruction which caused the injury was apparent; (3) that the first view of the obstruction that he could have obtained if desiring was from fifty to sixty feet distant from the obstruction; (4) that the obstruction, according to the evidence, was fully six inches above the level of the ground; (5) that the evidence of the plaintiff himself shows that there was nothing to prevent his having a full view of the obstruction; (6) that the plaintiff himself testified that, had he looked, he would have seen the obstruction; (7) that the whole testimony of the plaintiff clearly establishes the fact that he was guilty of contributory negligence in not using in an ordinary manner the senses which nature gave him; (8) that the evidence establishes the fact that the plaintiff was suffering, at the time of the accident, from no mental or physical disability which would prevent him seeing the inequality of the pavement. It is moved that the court does now instruct the jury, in view of the law and the evidence governing this case, to bring in a verdict in favor of the city of New Orleans, defendant herein.'

Whereupon the court charged the jury as follows:

'Gentlemen of the jury: Whenever, in a federal trial court, the judge having heard all of the evidence on both sides, comes to the conclusion that all reasonable men would, from that evidence, come to the conclusion that either one party or the other is entitled to a verdict,-- and, of course, it is for the judge to decide whether such proof has been made,-- it becomes not only the right, but the duty, of the judge to direct the jury to find for either one side or the other, accordingly as the testimony shows. Of course, you are sworn to decide according to the law and the evidence. Ordinarily speaking, it is for you to pass upon the facts, and it is for the judge to pass upon the law; but when a condition of affairs arises, such as that which I have described, when the judge, acting on his sense of responsibility and official duty, comes to the conclusion that all reasonable men would, from the evidence submitted to them, reach a certain conclusion, then it is his duty to so charge the jury, and responsibility is entirely covered, because, for instance, in this case this ruling of mine will be preserved by what is called a 'bill of exception; and it will be made clearly manifest that you returned the verdict according to my direction, under what I understand to be the law of the case. If I am mistaken, of course, there is a higher tribunal which will correct my error. I wish to say to you that in a case of this kind, where the obstruction complained of is a plain and visible one, where, on the evidence of plaintiff himself, in broad daylight (it is true, upon a cloudy day), he strikes himself, and stumbles against the step, resulting from the difference in the levels of the sidewalks, when there was nothing to distract his attention, and when there was no crowd, and nothing going on which would distract his attention, and when this obstruction was more than 60 feet from the corner of this street, and when, therefore, he had abundant opportunity, if he had been looking in the direction in which he was walking, as men ordinarily look, to have seen this obstruction,-- I say, in a case of that kind, in my judgment, he cannot recover; for while it is true that it is the duty of the city of New Orleans to maintain its sidewalks in a reasonably safe condition, so that pedestrians can walk along those sidewalks without danger, it is also a duty incumbent upon every man, at all times, to use ordinary care for his own preservation. It is the duty of every man, under all circumstances, to use the senses which nature has given him for his self-preservation. Now, I say that where a man is not affected by any infirmity of sight or any other infirmity, and he is walking along the street, whether the weather was cloudy or not (the testimony here shows that it was cloudy), and there was nothing between him and the difference of this level, and where there was such an obstruction as is shown by the photographs, and where a man, for some reason or other, when there is nothing to distract his attention, goes and injures himself on that obstruction,-- I say that he has failed to use ordinary care which it is incumbent upon every man to use. I have given a great deal of thought to this case. It was tried once before, and I kept it under advisement during vacation. It is a case in which, if it was possible to lawfully compensate this old gentleman for his sufferings and injuries, I would be glad to do...