Weinhardt v. City of New Orleans

• Decision Date: 17 January 1910
• Docket Number: 17,545
• Citation: 51 So. 286,125 La. 351
• Court: Louisiana Supreme Court
• Parties: WEINHARDT v. CITY OF NEW ORLEANS

51 So. 286

125 La. 351

WEINHARDT v. CITY OF NEW ORLEANS

No. 17,545

Supreme Court of Louisiana

January 17, 1910

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

Action by Charles W. Weinhardt against the City of New Orleans. Judgment for plaintiff, and defendant appeals. Affirmed.

John J Reilley, Asst. City Atty., for appellant.

Carroll Henderson & Carroll, for appellee.

OPINION

BREAUX C.J.

Plaintiff, the assistant custodian of the customhouse and post office, brought this suit to recover the sum of $ 21,200 for alleged injuries sustained in a fall through a defective crossing over a gutter. The case was tried by jury. Verdict was for $ 6,200.

The injuries complained of were suffered on the 7th of October, 1907, at about 9 o'clock on a dark night. He fell while walking on the upper river side of Patton and Webster streets on his way to a drug store near by, about three blocks from his home, in the neighborhood in which he has lived since about 18 years.

His arm was hurt and his body bruised in the fall.

In attempting to cross the gutter, he stepped aside from, and did not step on the one board remaining of, the crosswalk.

This crosswalk consisted of three planks of about 12 inches each in width.

In the diagram which we annex for reference, the planks are identified by the letters A, B, C.

[SEE ILLUSTRATION IN ORIGINAL]

[SEE ILLUSTRATION IN ORIGINAL]

The plank A was not in the crossing at all. The plank B was not in its place. It had tilted over at an angle of about 45 degrees, and no longer answered the purpose for which it had been placed in the crossing, but was an impediment to pedestrians who attempted to cross. Plank C was all that remained of the crossing at the time that plaintiff attempted to cross.

There was no light at the corner of Webster and Patton streets.

Plaintiff charges that his injury was the result of defendant's negligence in not keeping up its sidewalk at this place; that if the city had not neglected this crossing as it did he would not have fallen.

The bad condition of this crossing dates back some time. Some of the witnesses testified as far back as a year before the accident that the bridge was in bad repair. Others remember to have seen it in that condition about a month before the plaintiff fell.

There cannot be any question. The weight of the evidence shows that it had been out of repair some time prior to plaintiff's fall.

Two of plaintiff's witnesses testified that the department of public works had been warned of the necessity of renewing or repairing this crossing; that there had been requests made and notices given to the department to repair this bridge; and that it follows that the city was well aware of the necessity of having it put in good condition.

After the plaintiff had fallen, and had suffered the injuries of which he complains, the crossing was repaired; other boards were put in, and a light was furnished on the petition of persons residing near.

The defendant denied liability, and urged that the plaintiff was guilty of contributory negligence.

There is no question but that a municipality must keep its streets and sidewalks in a condition sufficiently safe to enable those who walk over them to cross the gutters at intersections without imminent danger.

It must be said, however, that the city is not an insurer of the safety of the pedestrian, and that it must appear that the danger was owing to the negligence of the city. There is no negligence for which she can be held, unless it appears that she has been warned or notified, either expressly or by implication.

The neglect to make the repair for a considerable time gives rise to an implication which is considered in the light of a sufficient notice to render the city liable.

The foregoing finds support in Blume v. New Orleans, 104 La. 348, 29 So. 106, and Laurenz v. City, 114 La. 862, 38 So. 587.

Of course, the defect must exist, and after the defect the municipality must have had reasonable time for its repair. In other words, there must a time elapse in which to learn the facts. Abbott, Municipal Corporations, vol. 2, p. 2321.

The evidence, as we have already stated, shows that the condition had been bad a number of months before the plaintiff fell. The defect was not slight. We have seen that there was one board missing entirely. The other had fallen from its place in the crossing. The remaining board was not sufficient on a dark night for a pedestrian to cross with safety; nor was it to be expected that a pedestrian would become a high stepper, and step across the gutter without bothering himself about a crossing. If a 12-inch board were adopted as a sufficient width, it might be different; pedestrians would accustom themselves to that width. As crossings are made with three 12-inch boards, no one would consider a board of 12 inches as wide enough to serve the purpose of the average pedestrian.

We give no importance to the alleged want of light. If that were all, plaintiff in our opinion would have no case. We have referred to it because it was one of plaintiff's allegations, and evidence was admitted in regard to it.

We will mention that the fall of plaintiff was not in a remote part of the city, where pedestrians do not often pass. It was in a settled portion, where residents have greater rights in regard to streets, sidewalks, and crossings.

The evidence also proves that notice of the defect had been given to a councilman. This councilman testified that he had directed the complaint clerk of the office of the commissioner of public works to make an entry of this notice.

The councilman was grossly mistaken, or the clerk. The clerk testified that there is no such entry in the books, and that he received no notice.

The councilman was corroborated in his testimony. The one who had made the request of him testified as to the request, and in addition he said he had written a letter to the office of the commissioner of public works. The following is an excerpt from the testimony of witness Mr. Leche:

"Q. Are you positive that you wrote this letter to the commissioner of public works before the accident? A. ...