43 La. Ann. 295 | La. | 1891
The opinion of the court was delivered by
The pleadings disclose that plaintiff, a drayman, sues the defendant for damages to the amount of $20,000.
He avers that the defendant company had at the intersection of Magazine and Erato streets an electric light crane and wire, which obstructed the use of those streets, as they were swung so low as to be dangerous to passengers; that on October 12, 1889, while he was engaged in hauling, although diligent, he came in contact with the electric light crane, and by reason of its defective and negligent construction of this wire and crane, and by reason of the rottenness of the pole supporting them, the crane fell on him; broke his thigh, laming and crippling him for life; caused him great pain and rendered him less able to earn his livelihood.
The defendant in answer pleads that its poles and wires and the lamp and crane under discussion are lawfully upon the streets of.the Oity of New Orleans, in a safe and proper place, for lighting pur-poses;- and that the plaintiff met with an accident by his own gross fault and negligence; that he was hauling with a float along Magazine street a heavy iron tank, fifteen feet high, and that the driver drove his float against the crane, and continued to drive his mules until the tank pulled the crane and pole down upon the plaintiff; that the plaintiff should have taken good care, as he was on the highway, on a float with a heavy load, much above the ordinary heights of float
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There was a verdict and judgment for the plaintiff for $3000.. The defendant appeals.
The record discloses the facts of which the following is a statement: On the 12th day of October, 1889, the plaintiff and Henry Simmons, another colored drayman, were employed by John Connelly, a boss drayman.
They had twelve large iron tanks to haul, from the -corner of Thalia and Magazine streets to an oil mill in Gretna.
The most direct route was that taken.
These tanks weighed 4000 pounds each. They were loaded on floats; the load and float were in height sixteen feet.
Three of these tanks had been safely hauled over this street without accident.
One of them had been hauled the morning previons to the collision..
Between one and two o’clock p. M. they were hauling the fourth tank. Simmons was driving and the plaintiff was sitting on the float,, behind the tank, eating his dinner.
The testimony of the witnesses is conflicting as to the side of the street the float was on as it approached Erato street. The side of' the street on which he was, has bearing, for the reason that the wire was higher from the ground on the left than on the right side. The defendant contends that it swung too low on the right hand side of' Magazine for him to pass; that he was aware of this _ and had always previously, because of these wires, crossed Erato street on the left, hand side. Three witnesses, including the driver of the float, testify that the flogt was on the right hand side going up; that he was hindered from continuing in the direction intended, by timber wheels driven by one Foster, coming out Erato street across Magazine, in front of the float. He requested the driver of the timber wheels to-stop, but the latter drove on.
Other witnesses testify that he was on the left side of the street,', that in veering to avoid the timber wheels he did not return to the; left of the street, despite his attempt, in time to escape the accident.
The driver evidently pulled to the right to let pass the wagon in front and then attempted to pulled back to the left side of the street to avoid the wire, but this brought the top of the tank into contact with the electric wire and by the weight against the wire caused the pole to fall.
This wire and others were suspended near the top of this pole and from this pole upon the right hand side of the street it swagged within fifteen feet of the ground. There was also a heavy crane resting on it, used to suspend an electric light lamp.
The rotten pole, made weak by decay, broke off close to the ground and fell upon the plaintiff and broke his thigh.
Immediately after the driver stopped his mules.
The pole in question was an eight by eight pine pole which had been in the ground about four years.
The lamp had been located by the City Surveyor.
The contract with the city required that the poles should be heart timber, not less than nine inches square at the ground, and that the lamps should be suspended upon cranes, the latter not less than thirty-five feet from the ground.
The pole was of the required height.
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It is in place to state, if Simmons, the driver of the float, was. negligent, the plaintiff does not question that he being his fellow-servant, can not recover.
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We must now determine whether plaintiff or his fellow-servant was guilty of contributory negligence.
The question is not free from difficulty.
On the left side of the street they had passed a number of times, at the place of the accident and might again on that side have passed without accident.
The driver and the witnesses who testify on the subject, state that he was attempting to return to that side but was prevented.
It became necessary for this driver to act promptly.
He had asked the timber wheel man to stop; he did not.
In that difficulty several alternatives presented themselves:
To drive on and collide with the timber wheels and mules and incur great risks.
To stop, or to veer to the right and return to the left.
The first could not be thought of, as between the second and third he selected the latter.
Even if there had been an error of judgment in the emergency of the moment it would not have been carelessness or neglect. In driving to the right there was no rashness, but a desire of avoiding a threatening collision in front.
The counsel for defendant urges that plaintiff had knowledge of ■defects or danger in the highway; that he was not driving an ordinary wagon carrying an ordinary load, but a very clumsy, unwieldy vehicle, pulled by five mules. Had the plaintiff freely chosen to drive under the low swung wire and had negligently driven the tank against it, the principle involved would apply. In the haste of the moment he did that which, possibly, any prudent driver would have done.
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But the defendant company’s pole and wire were an obstruction. Under its contract with the city, poles of heart timber, not less than nine inches square, were to be put up. The pple in question was not of heart timber, and because of the sap it had badly decayed just above the ground. Its power of resisting was, at least, one-half less than it should have been. •. .
While it is not necessary that all electric wires should swing as high as plaintiff’s counsel contend they should, they should be placed at an elevation more than fifteen feet from the ground, when suspended across a highway.
Ordinary care and diligence should be exercised against decay and weakening of timber from age or the action of the elements.
“Municipal corporations must take notice of the tendency of timber to decay, and whenever the exercise of ordinary care involves the anticipation of defects that are natural and ordinary results of use and climatic influences, and there is neglect on the
The foregoing, although relating to the diligence required of municipalities, is not entirely without application. With reference to the wires oyer a part of the “ traveler’s path ’.’ in the thoroughfare, we find the applying rule, viz:
“ When a road or street is opened and public travel is invited thereon it must be made reasonably safe for such travel. Ib. p. 455. See also Wilson vs. Telephone and Telegraph Co., 41 An. 1043.
It was proven that this load and float were not exceptional in height.
Cartmen haul at times loads equally as high, even higher.
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The question of damages requires our careful attention. Plaintiff was confined to bed at the' Charity Hospital from the 12th day of October to the '7th of December. On the last mentioned day, on the advice of his physician, he attempted to walk; in the attempt he fell and his leg was fractured at the healing place. He remained in bed two months longer.
Plaintiff’s wages were $1.25 a day.
He is not entirely disabled.
He can perform good many forms of work as well as before.
He is on the decline of life and without the injury his usefulness in doing work requiring strength would be on the wane.
But the unfortunate accident has none the less made a dent in this humble man’s life we can not entirely straighten or completely remedy.
We.flx" the damages at an amount we think will compensate actual loss and in part the suffering endured.
The defendant was at fault, but the negligence was not gross. The carelessness was not great.
We can not agree with the jury insofar as relates to amount of damages.
The amount must be reduced to $1000.
It is therefore ordered adjudged and decreed that the verdict of the jury and the judgment thereon be amended so as to reduce the amount to $1000, with interests as allowed, and that thus amended said judgment be affirmed at appellee’s costs.
