155 So. 61 | La. Ct. App. | 1934
This is an action ex delicto by a pedestrian against the city of New Orleans and the sewerage and water board, in solido, to recover damages for personal injuries said to have been sustained as a result of tripping over a stopcock, or cut-off pipe, imbedded in the sidewalk on Amelia street, in this city, on February 12, 1932, about 7:15 p. m. The sewerage and water board is sought to be held liable on the theory that the alleged projection was the result of faulty installation of the pipe by its employees and the city on the ground that it had actual knowledge and/or constructive notice of the said obstruction by reason of its inherently dangerous condition that existed for a period of several years.
The defendants denied that they were in any way at fault, and the city further denied that it had either actual or constructive notice of the alleged dangerous condition of the sidewalk.
There was judgment dismissing the suit, and the plaintiff has appealed
Plaintiff, aged 55 years, was walking on Amelia street between Constance and Laurel streets toward the river at the time in question. According to her uncontradicted testimony she tripped over a stopcock pipe imbedded in the brick pavement and fell heavily, sustaining painful injuries. At the time of the accident it was dark, and she states that the street light was inadequate, and that the projection was obscured by the shadows from nearby trees and a fence.
It appears that the 3-inch pipe was installed in 1912 and at that time was even with the surface of the bricks with which the sidewalk was paved. The bricks on the lake side of the pipe had sunk three-fourths of an inch; on the other, or river side of the pipe, the bricks were flush with the top of it. The sidewalk was otherwise in good condition, except for one or two uneven places described as being about two feet in area and one-inch deep.
The trial judge found that there was no evidence to show that the pipe had been negligently installed by the employees of the sewerage and water board, and the record clearly supports him in that respect.
The next issue is whether or not there was an inherently and patently dangerous condition existing in the sidewalk. Assuming that the condition of the sidewalk complained of was dangerous, and hence would not fall within the category of slight or infinitesimal defects, concerning which the authorities are clear to the effect that the city would not be liable on the theory of "de minimis non curat lex," a view most favorable to the plaintiff, but without deciding that issue, we shall pass to a consideration of the question of actual knowledge or constructive notice thereof by the city authorities. The record is devoid of any proof that the municipal officials had any actual knowledge that the brick had receded from one side of the pipe.
In the case of Wiltz v. City of New Orleans,
In the case of Miller v. City of New Orleans, 152 So. 141, 142, where the plaintiff sued for damages for personal injuries resulting from stumbling over the metal edging of a sidewalk curbing, this court said:
"A municipality is, of course, not liable for the results of all defects in sidewalks, streets, or highways.
"In the first place, in order that there be liability, there must exist a condition which is patently dangerous even to reasonably careful and ordinarily prudent persons.
"In the second place, even if the defect be one which is obviously dangerous, the municipality, in the absence of statute specifically fixing liability cannot be held unless it has had actual notice of the existence of the defect sufficiently in advance of the accident to have had opportunity to make the necessary repair, or unless the defect has existed for a sufficient time to render it proper to say that the municipality should be charged with knowledge of its existence, or, to use the usual expression, has had constructive notice thereof."
In Tiller v. City of Monroe,
Counsel for plaintiff argues that a small defect is dangerous because it would be less conspicuous, citing Moise v. New Orleans Public Service, Inc.,
It appears to us that this same line of reasoning would be equally applicable when we consider the question of constructive notice. In short, it is more difficult to prove constructive knowledge of a small and obscure defect than of a larger and glaring one. However, there is nothing in the record to show. that any one else ever tripped, or stumbled, over the pipe, or that any one considered it so dangerous that they notified, or attempted to notify, the city authorities thereof.
It must be conceded that the defect was slight and obscure. The condition complained of was not patently or obviously dangerous.
In Brown v. City of New Orleans,
The plaintiff also failed to prove that the alleged defect had been in existence for a reasonable length of time, and that the city neglected to repair it. While the evidence tends to show that the pipe and the bricks on the sidewalk had been laid a number of years ago, there is nothing in the record to indicate when the brick receded from its position adjacent to the pipe.
We are of the opinion that, under the circumstances of this case, it cannot be said that the city had constructive notice of the defect in the sidewalk. Consequently there is no liability.
For the reasons assigned the judgment appealed from is affirmed.
*63Affirmed.