Weber v. Union Development & Construction Co., Ltd.
| Decision Date | 26 November 1906 |
| Docket Number | 16,334 |
| Citation | 42 So. 652,118 La. 77 |
| Parties | WEBER v. UNION DEVELOPMENT & CONSTRUCTION CO., Limited |
| Court | Louisiana Supreme Court |
Rehearing Denied January 7, 1907.
Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.
Action by Fred C. Weber against the Union Development & Construction Company, Limited. Judgment for plaintiff, and defendant appeals. Affirmed.
Foster Milling, Godchaux & Sanders, for appellant.
Stafford Lambert & Robinson and Frank McGloin, for appellee.
While running at night diagonally across the intersection of Pierce street and the lower side of Canal street, to take a car on the far, or upper, side track on the neutral ground of Canal street, plaintiff was tripped by an obstruction, and he fell and suffered the injury for which he brings this suit, claiming that the presence of the obstruction was due to the negligence of the defendant company. The obstruction was one of these trestles used for barricading streets under repair, consisting of a long plank, which, when in proper position, is held up edgeways, or with its sides to the horizon, at an elevation of about four feet from the ground, by four supports or legs, but which on this occasion had fallen and lay on its side on the pavement; the plank just high enough from the ground for the foot of a pedestrian to get under it. And that is what happened to plaintiff. His right foot got caught under the plank, and he fell on his left knee, and dislocated the kneecap, and broke his thigh bone. The defendant company was repairing the upper side of Canal street, and had placed this trestle across Pierce street, along the line of the lower side of the neutral ground on Canal street, to prevent those going up Pierce street from crossing to the upper side of Canal street; and it had fallen, or had been thrown down.
In support of his allegation of negligence, plaintiff proves that this trestle had been placed by defendant at this crossing without the red light upon it required by the city ordinance, such as had been placed on all the other barricades at all the other crossings along the whole length of this street, as well as on the barricade at the upper side of this same crossing; that this trestle was weather-stained to almost the color of the asphalt on which it stood, so that it was inconspicuous and liable to be run against bypassers and thrown down, and that either from this cause or from its rickety condition it was frequently down; that on the night preceding the accident a Mr. Deforges, living at the corner, struck his foot and skinned his shin against the same trestle as it lay on the ground in precisely the same position as when plaintiff ran foul of it; that on another occasion Deforges' boy, while playing at hide and seek, ran up against it as it stood in its proper position, without seeing it; that the night watchman found it down and set it up again when he came to his work about 2 hours before the accident, and that it was seen to be down again about 15 or 20 minutes before the accident; that the number of watchmen on the work had been reduced by defendant from five to two; and that the watchman on this particular beat had been detailed by defendant on that night to other work. The evidence leaves in doubt how long before the accident the watchman had passed at this particular crossing, whether half an hour or an hour before.
Under the above circumstances, we think the negligence of defendant is made out. The right accorded to a contractor to place obstructions on the public street should be exercised with more care than this. It seems that the reason why the required red lantern had not been placed on this trestle, as on all the others, was that the watchman was short one lantern. He says he had in vain made requisition for it. The evidence fully shows that this trestle was, from one cause or another, in the habit of falling and becoming an obstruction upon...
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