
    5192.
    (Court of Appeal, Parish of Orleans).
    THOMAS J. McEVOY vs. SEWERAGE & WATER BOARD OF NEW ORLEANS.
    1. It is the duty of the Sewerage and Water Board of the City of New Orleans to take proper care that excavations are properly re-filled, and to warn by danger signs people using the street of the danger to life and limb.
    
      st. A failure to do so convicts the Board of negligence and makes it responsible for the damage caused by it.
    Appeal from the Civil District Court, Divsion “B.”
    
      E. N. Whittemore, for plaintiff and appellee.
    Omer Villere, for defendant and appellant.
   DUFOUR, J.

This is a suit for the value of a mule alleged to have been killed through the negligence and carelessness of the defendant.

On September 19, 1908, plaintiff’s driver, in the course of his employment and as he had the right to do, drove a float with two mu'les in Berlin Street, and one of the mules sank into the mud of a sewerage trench.

The evening was dark, there were no barricades and no lights or other signals indicative of danger; the trench' had been opened on September 3rd, and closed on September 4th. It rained continuallly until the time of the accident and the backfilling of the trench not being properly ■rammed, became softened by the rain and was unable to resist the weight of a mule.

It was the duty of the defendant to take proper care that the excavations were properly refilled and to warn •people using the street of the danger of life and limb by danger signs.

Its failure to do so convicts the defendant of negligence and makes it liable, unless it appear that the plaintiff was guilty of contributory negligence.

The only suggestion to that effect is that plaintiff did not take the proper measures to save the mule.

It is much easier to criticise in cold blood after a thing has occurred than to act when it does and on the spur of the moment; all that can be required of anyone in an emergency requiring prompt action ig to take such precautions as may reasonably occur to the average man.

This, we think, was done.

When the driver ascertained that, with the assistance at hand he could not accomplish the rescue of the mule, he telephoned his employer for assistance. The latter sent, from his stable, three men with block and tackle, but all efforts were unavailing and the mule died, apparently,, in its strenuous efforts to free itself.

January 23, 1911.

It is shown that the animal was in good condition at. the time, and the owner’s testimony as to its value is un.~ contradicted.

Judgment affirmed.

St. Paul, J., takes no part.  