Tatje v. Frawley

• Decision Date: 19 February 1900
• Docket Number: 13,030
• Citation: 52 La.Ann. 884,27 So. 339
• Court: Louisiana Supreme Court
• Parties: FREDERICK TATJE v. JOHN J. FRAWLEY

27 So. 339

52 La.Ann. 884

FREDERICK TATJE v. JOHN J. FRAWLEY

No. 13,030

Supreme Court of Louisiana

February 19, 1900

APPEAL from the Civil District Court, Parish of Orleans -- King J.

Theodore G. Spitzfaden and Armond E. Blackmar, for Plaintiff Appellant.

Bernard McCloskey, for Defendant, Appellee.

NICHOLLS C.J. BLANCHARD, J., dissents.

OPINION

STATEMENT OF THE CASE.

Plaintiff in this suit prayed for a judgment in his favor for five thousand dollars, against the defendant.

The demand was based upon the allegations that on June 18, 1894 defendant, Frawley, entered into a contract, with the city of New Orleans, for the rearrangement of the pavements on Gravier street, between Carondelet and Baronne streets, in said city; that under said contract, Frawley was to place iron covers over the gutters on said Gravier street, from Carondelet to Baronne streets, and also agreed to comply with all police and health regulations and ordinances, and especially as to placing all necessary lights, etc.; that on the 24th of September, 1894, Frawley had completed putting said iron covers on the gutter on the south side of Gravier street, except a small space of about three or four feet, between the edge of the iron covers, already laid, and the edge of Baronne street; that on said date, September 24, 1894, about half past ten o'clock P.M., petitioner reached the corner of Gravier and Carondelet streets, and walked out said Gravier street, towards Baronne street, on the iron covers, laid and placed by said Frawley, under his said contract; that he continued his walk until near the open space, referred to above, and without knowledge, notice, or warning, that the said gutter head had not been properly covered, petitioner fell into said opening, striking his right leg violently, against the edge of the iron crossing, running over Baronne street, causing a compound fracture of both bones; that said accident and injury were caused by the carelessness and negligence, of said Frawley, in leaving said opening, and failing to place proper lights, to warn and advise pedestrians, of the existence of said opening, and to disclose the dangerous condition of said sidewalk.

That, immediately after the accident, petitioner obtained medical and surgical attention; that he suffered intense pain, immediately on being hurt, and for weeks thereafter; -- that the injury, which he had suffered, was painful and serious, and petitioner was advised, and believed, and feared was permanent; that petitioner was before his injury, and was still engaged in the manufacture of cigars; that by reason of said injury, he had suffered great physical and mental pain, suffering, and anguish, and had been thereby damaged, to the extent of five thousand dollars; that by reason of said accident and injury, petitioner was unable to attend to his business for more than three months; that at the time of said accident, petitioner's business was on the verge of a prosperous season, and he had suffered in damages, from loss of business, and time, the further sum of five hundred dollars; that all of said damages, resulted directly, from defendant's negligence, and carelessness, as aforesaid.

Defendant answered.

After pleading the general issue, he answered, and admitted, that he had entered into, on June 18, 1894, a certain contract, with the city of New Orleans, for the rearrangement of the paving on Gravier street between Carondelet and Baronne streets, as would appear, from contract passed before J. D Taylor, Notary Public, June 18, 1894.

He averred, that if any damages at all resulted to plaintiff, the same were caused by the negligence of said plaintiff, and defendant in no manner contributed thereto.

Judgment having gone against plaintiff, he appealed.

OPINION.

The evidence shows that about ten o'clock on the night of September 24, 1894, the plaintiff and a friend started to walk on Gravier street from Carondelet to Baronne street upon the sidewalk on the upper side of Gravier street.

Plaintiff's friend walked on the inside next the line of houses, and plaintiff on the side next the street.

Just as the parties reached the end of the last house on Gravier street, a car was seen approaching on its way up Baronne street which they desired to take to go to their respective homes. It was so near the corner when seen that plaintiff's companion suggested that they should run to stop it, and they both did so.

The former crossed safely over into Baronne street, but the plaintiff fell into an open space of about three or four feet between the edge of certain iron covers by which the gutters on Gravier street up to that point had been covered, and the edge of the crossing from the front or the river side of Baronne street to the rear or swamp side of that street.

He was severely injured by his fall. The iron plates which covered the Gravier street gutter from Carondelet to Baronne street, up to the point where the plaintiff fell, were placed there by defendant in execution of a contract between him and the city of New Orleans. Had an additional plate been placed upon the gutter, the space into which plaintiff fell would have been closed and no accident would have happened.

Defendant contends that the space into which plaintiff fell was nothing more than the open gutter which had always been there and in that condition, that it was no part of his contract to close it, and that even if it were, he was not called upon or required under the circumstances to place a red light at night on the sidewalk upon or near the plate next to the opening, he not having caused the open space to be there, just beyond his completed work.

The evidence shows, we think, that there was on the night in question no red light either at or near the open space, but if there was a red light or lamp burning, it was in the centre of Gravier street, itself, upon which work of some kind was then going on.

Plaintiff contends that defendant's contract called for the closing of the gap in the Gravier street gutter between where he had closed the gutter by plates and the edge of the crossing over from one side of Baronne street to the other, and that it was his duty, when in the execution of his contract, he reached (in covering the gutter) this point, and saw and knew that this space was open in the direct line of extension of the completed portion of his work, to have placed a red light or lamp at night upon the sidewalk at or near the open space, as was required to be done in the immediate vicinity of their work, in order to give warning of danger to passers by.

He contends that the closing of the open gutter from Carondelet street to Baronne by plates was a new work, changing the old condition of things, to which the people of the city had grown accustomed, one which tended directly to lead and lull passers along the sidewalk into a sense of full security, that the whole space which had been formerly open had been closed. That defendant was bound to know that this would be the result of leaving any portion of the gutter open, and the danger resulting from that fact should have been guarded against by danger warnings or signals.

Defendant meets this claim by insisting that plaintiff was bound to know from the usual condition of things upon the corners of streets in New Orleans, from time immemorial, he would find an open space between the foot crossings which extend from the sidewalks of the streets to the streets themselves, over the gutters running from the Mississippi river to the rear, and those running parallel to the river, as Baronne street does; that plaintiff was bound to expect to find such an open space somewhere, and if he thought proper, when approaching at night the spot where such an open space might be expected to be usually found, to start running and fix his eyes upon an approaching car instead of looking for the customary opening, he was guilty of contributory negligence which would bar his action. He contends that there was a city electric light burning at the corner of Baronne and Gravier, at the time of the accident, giving sufficient light whether flickering or not, to have shown plaintiff the open space before him, had he exercised usual care or judgment.

The contract between the city and defendant is in the record.

The defendant being upon the stand as a witness, himself, was cross-examined by the plaintiff's counsel as to whether or not he had before the day of the accident, done any work in and upon the portion of gutter between the point where the iron plates laid by him terminated, and the end of the bridge covering the gutter as it crossed Baronne street. The space here referred to was the open space into which plaintiff fell, and which defendant contended was not covered by his contract. This space was afterwards covered by defendant by a plate, but he insisted that the contract under which this was done was a supplemental agreement made after the accident, under instructions from the City Engineer and to supply an omission on this very point under the original contract defendant had referred to it as extra work.

The following questions were asked and answers given:

"Q. -- You did that extra work, did you, that you say was extra?

"A. -- Yes, sir.

"Q. -- Did you charge anything extra?

"A. -- Yes, sir.

"Q. -- ...