McCloughry v. Finney

37 La. Ann. 27 | La. | 1885

Lead Opinion

The opinion of the Court was delivered by

Manning, J.

The suit is for the recovery of five thousand dollars as damages for injuries to the son of the plaintiff caused by a sack of corn falling on him which broke his leg. The defendant keeps a grain or feed store on Poydras street, and the sack fell from the top rtf a pile of coin that had been placed on the banquette in front of his store. The lad, a boj1- of eleven years, was going by with two companions between seven and eight o’clock in the evening of the 11th of September 1883 when the casualty befell him. The case went before a jury who found for the plaintiff and assessed the damages at fifteen hundred dollars.'

An ordinance of this city prohibits any one from encumbering or obstructing the side-walks by depositing thereon any goods or other article except so long as may be necessary for loading or unloading. Sundry objections are made to our considering this ordinance, but they are made for the first time here. None were made on the trial below. The ordinance was received in evidence without objection, and the uniform rule is that when so received, objections come too late on appeal. Pannell v. Coe, 1 Mart. N. S. 614; Pickett v. Bates, 3 Ann. 628; New Orleans v. Congregation, 15 Ann. 389.

We do not think the testimony of the injured boy or of his companion of same age is fairly open to the criticisms made by the defendant. The story of both is substantially the same. They may be street gamins as he says and as vicious as those pests usually are, but there is no proof whatever that either of them contributed to the disaster by negligence or by action. We cannot follow ihe defendant’s counsel into the realm of conjecture, and assume that the injured boy cut one of the lower sacks and loosened the foundation of the pile, and thus precipitated the sack from the top. The proof does not establish such solution.

Nor was the failure of the plaintiff to call the third lad as a witness a circumstance of any moment. He was a child of only eight years and could scarcely “have cleared the obscurity and doubt” of his companions’ testimony.

The defendant was in fault at the outset. Ho had not only violated a city ordinance but a general law as well. No one can rightfully obstruct a side-walk under any plea, whether of convenience or necessity, except for such time as is actually needful to get his goods in and out l\is store. The public is entitled to free passage over any and every part of the side-walk, and this cannot be impaired with impunity’. Wood on Nuisances, secs. 261-5. Whoever unlawfully obstructs the passage over the side-walk is responsible for the consequences—not alone for the penalty the city authorities may have attached to the infraction of their ordinances—but for ulterior consequences as well. By placing himself in the wrong he shuts himself out from defences that might otherwise avail him, because when the act is inherently unlawful the question of negligence of the party injured by it does not arise. Salisbury v. Herchenroder, 106 Mass. 458. He is in a different position from one who occasions an injury by the imperfect doing of a legal act, in which case there is a carelessness that may be culpable though not wilfull, but in his case there is a positive defiance of the law and a resulting injury from the very act that constitutes that defiance. 1 Thompson on Negligence, 344-5.

Tlic fact that the defendant’s neighbors obstructed the side-walk in the same manner, and that many others habitually do it, is no legal excuse or palliation of his act when that act has occasioned injury to another. Months or jrears may elapse before a serious injury results from blocking the side-walks, and many score oí' shopkeepers may be equally culpable, but when injury has been done, the party who occasions it must bear the brunt of it.

We have carefully scanned the testimony of the extent of the injury. The trial was iu February last and the doctor was still attending the boy, who had been confined to his bed between six and eight weeks. He does not think the injury will be lasting except in so far as changes in weather will produce pain. The boy is not a cripple. We are not disposed to interfere with the verdict.

Judgment affirmed.

Rehearing refused.

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Rehearing

On Application iron Rehearing.

Objection is made to that sentence of the opinion wherein it is said that the wrong-doer shuts himself out from defences which might otherwise avail him, because when the act is inherently unlawful the question of the negligence of the party injured by it does not arise. The sentence of Thompson intended to be paraphrased is;—“the act being inherently unlawful, the actor is answerable at all events for the injurious consequences and the question of negligence does not arise.” The author means negligence on the part of the.1 actor, i. e., if the act is unlawful it matters not whether it was carefully or negligently done, it is sufficient to shew the illegality and not necessary to shew negligence.

A reexamination of the record confirms us in the opinion expressed before that there is no proof of contributory negligence, and therefore there is uo need to say what effect proof of contributory negligence would have. It is proper however to correct the sentence touching it as above, aud since we find nothing else to correct,

The rehearing is refused.