Shally v. N. O. Public Service

• Decision Date: 16 March 1925
• Docket Number: 9758
• Citation: 1 La.App. 770
• Court: Court of Appeal of Louisiana — District of US
• Parties: EDWIN T. SHALLY, Tutor of Jas. Cantrelle, v. N. O. PUBLIC SERVICE AND SEWERAGE AND WATER BOARD, Appellants

1 La.App. 770

EDWIN T. SHALLY, Tutor of Jas. Cantrelle, v. N. O. PUBLIC SERVICE AND SEWERAGE AND WATER BOARD, Appellants

No. 9758

Court of Appeals of Louisiana, Orleans

March 16, 1925

March 16, 1925;

Rehearing Refused [Both Applications] April 13, 1925.

Judge Bell Dissents April 25, 1925.

Decree Supreme Court Writ of Certiorari and Review Granted and Denied May 25, 1925.

Decree Supreme Court. Judgment Court Appeal Affirmed. 105 Sou., Adv Rep. No. 13, p. 606 October 7, 1925.

Appeal from Civil District Court, Hon. Sam A. LeBlanc, Judge.

This is a damage suit for personal injuries.

Judgment for plaintiff. Defendant appealed.

Judgment amended and affirmed.

Lazarus Michel & Lazarus, H. S. Weil, attorneys for plaintiff and appellee.

Benj. W. Kernan, W. L. Gleason, attorneys for defendant and appellant.

CLAIBORNE J. WILLIAM W. WESTERFIELD, J., concurring.

OPINION

CLAIBORNE, J.

The gravity of the injury suffered by the plaintiff and the very large amount claimed in the petition and allowed in the judgment and the eminence of counsel engaged in the prosecution and defense give this case more than ordinary importance and demand more than ordinary consideration.

The site of the accident was on St. Claude Avenue between Clouet Street, in the direction of uptown, and Louisa Street, in the direction of downtown. The block is 529 feet long from Clouet to Louisa. The Avenue is 127' 8" wide, with a neutral ground in the centre 61' 6" wide, with an uptown roadway on the lake side of it and a downtown roadway on the river side of it, each 20' wide 21' 10" from the neutral ground curbing on the lake side and upon the neutral ground are the tracks of the Louisiana Southern Railway; 8' 4" from those tracks are the upbound tracks of the New Orleans Public Service; 9' 4" from those tracks are the downtown tracks of the same Public Service; and 7' 10 1/2" from the river side rail of those tracks is the river side curb of the neutral ground.

At the time of the accident the Sewerage and Water Board had a locomotive crane on the lake side roadway of St. Claude Avenue running over a temporary track laid there which occupied about twenty feet of the roadway; they were excavating a trench on the neutral ground the centre of which was 44 feet from the lake side property line of St. Claude Avenue, and six feet from the edge of the neutral ground curbing; the trench was eight feet wide and nine feet deep, and the material excavated from the trench was dumped between the track and the lake side sidewalk; the street and part of the sidewalk were blocked to general traffic.

The pipes to be laid into the trench had been deposited by the Sewerage and Water Board upon the 7' 10 1/2" vacant space on the river side of the neutral ground between the downtown track of the Public Service cars and the river side curb of the neutral ground. These pipes were of concrete, oval in shape, measuring outside, 44 inches high, about two feet three inches above the platform of the car, 48 inches wide and 8 feet 4 inches long. They were laid at a slight angle from the track and across the curbing; they lay at a distance varying from four and a half inches to seven inches from the body of the car and extended about three feet beyond the curbing. The first pipe lay 130 feet from Clouet Street, and the last pipe 150 feet from Louisa Street. The pipes themselves extended over a distance of about 250 feet along the track, and were as near to each other as the bell ends would permit. Each pipe weighed from 5000 to 5700 pounds. In the language of plaintiffs' attorney they were "huge immense affairs". It took six men to roll one, and a derrick to lift it. The pipes had been placed temporarily in that place by the Sewerage and Water Board preparatory to their use in the trench, as the only available vacant space. As stated by the Engineer of the Board in charge of the construction of the Canal, as the most convenient and least dangerous place and most accessible.

The plaintiff through his tutor alleged that on March 30, 1923, he was sixteen years, four and one-half months of age; that on said date at about four-fifteen o'clock in the afternoon at some point uptown he boarded one of the cars of the New Orleans Public Service Co. as a passenger intending to return to his home, 1836 Louisa Street, and took a seat in said car; that the route of said car was down St. Claude Avenue to the intersection of Louisa Street; that as said car approached Louisa Street the plaintiff, intending to leave the car at the corner of St. Claude and Louisa Street, made his exit from the car through the front door; that the car was of an old type not equipped with vestibule doors which may be easily opened and closed by the motorman or conductor; that the car was equipped with vestibule doors of such a type that it required an effort to open or close them, and as a consequence they were often left open when they should have been closed; that when the plaintiff approached the front platform with the intention of leaving the car at the next corner, which was St. Claude and Louisa Streets, he found the front vestibule door in the right hand open; that he construed this as an invitation to leave the car by the front right hand door, and preparing to disembark from said car at the next corner, the plaintiff stepped from the platform to the step of the car; that at that time the car was moving at a moderate speed either because it had stopped at the previous eorner of Clouet, or because it was preparing to stop at the next corner of Louisa Street; that when plaintiff stepped upon the platform and from there to the step of the car, he was not warned by the motorman who saw him or should have seen him, of any danger of getting upon the step; that in stepping from the platform to the step he was doing only what other passengers have done from time immemorial, to the knowledge of the Public Service Company and its employees, with the acquiescence of said Company; that when plaintiff stepped on the step he was holding onto the handle bar put there for that purpose and would have been able to stand there in perfect safety at the moderate speed at which said car was moving except for the following occurrence; that when he stepped on the step, he was violently struck by the large concrete pipes placed alongside of the track, and the blow coming upon him suddenly and unexpectedly caused him to loosen his hold and lose his balance, and before he could regain his balance he was struck by other pipes and knocked from the step of said car under the car; that the rear wheel of said car passed over both of his legs, crushing them so that when he was taken to the Charity Hospital it was found necessary to amputate both of his legs midway of the thigh; that said accident was due to the gross negligence of both defendants in the following particulars:

1st. It was negligence of the Sewerage and Water Board to have placed said pipes in such close proximity to the tracks to the Public Service so as to allow a clearance of only a few inches between the pipes and the cars; that the said Board knew or should have known that passengers on said cars might at times be upon the steps of said cars under the same circumstances as plaintiff or under other circumstances such as the crowding of the cars which often makes it necessary for several passengers to ride on the steps; that said pipes should have been laid in some other way and in some other place so as not to endanger the lives and limbs of passengers on the cars; that except for the presence of said pipes in such close proximity to the cars plaintiff would have been carried safely to his destination; that said pipes were laid by the Sewerage and Water Board at the place above mentioned with the full knowledge of the Public Service Company and without protest; that it was the duty of said Company to have caused said pipes to be placed in such a position as would not have endangered the lives or limbs of passengers on said cars; 2nd, that the Public Service owed a duty to the plaintiff to warn him of said danger and to use every possible care to avoid the accident which occurred; 3rd, that the Public Service Company was guilty of gross negligence in allowing the vestibule door to remain open while the car was in motion, so that passengers could go upon the step of the car preparatory to leaving under the above circumstances, and in not warning the plaintiff of the danger of stepping upon the step; 4th, that the Public Service Co. was grossly negligent in operating a car of the obsolete type of the one upon which plaintiff was a passenger, and in not having said car equipped with the improved device for the opening and closing of the vestibule door which caused the door to have been open when it should have been closed; 5th, that said Public Service was grossly negligent in not having its cars equipped with brakes in such condition that the car could be stopped instantly when running at moderate speed; 6th, that either because the motorman was incompetent or negligent, or because the brakes were defective he did not stop the car when he saw or should have seen the plaintiff struck, and as a consequence the plaintiff was run over; that at the time when the plaintiff stepped from the platform to the step he was not aware of the presence of said pipes or of the dangerous proximity of the pipes to the car.

For pain, mental anguish, inability to earn a livelihood, or enjoy the pleasures of life, plaintiff claims $ 50,000 damages.

For answer, the Public Service Company admitted that it was running the cars on St. Claude Street; that the Sewerage Board had placed the pipes on the neutral ground as alleged, but denied all the other allegations of the petition.

It...