
    No. 8161
    MRS. MYRTLE S. FEITEL vs HAMPTON REYNOLDS.
    COURT OF APPEAL STATE OF LOUISIANA PARISH OF ORLEANS
    
      
    
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Honor John St. Paul.

Ihis is an action ax dallcto. Plaintiff sues for damages to har automobile and for hurt to herself. Ilia defense is want of negligence on the partAof plaintiff. Ihe material facts are practically undisputed and the case presents only questions of law.

I.

Defendant is a road oontraotor, ana at the time of the accident was constructing a suburban highway which leads north from the thicicly inhabited parts of the city of Dew Orleans, through the moro sparsely settled portions thereof, and beyond; but all within the corporate limits of said oity, and much traveled. Ha had completed the work from the city proper up to the point where the accident ooourrad, and was at work at that point and hayond, Ihe road was some 26 feet wide from ditoh to ditoh, and when oonplated was to consist of a graveled strip 16 feet wide having on each aide a strip of packed and sodded soil about 5 feet wide, level- with the gravel where it meets tlie> same and1 sloping slightly to the ditoh on either side.

Iho method of construction was to gat the linas and levels from the highway engineers, and then to set up guide hoards' 12 inches high and 16 feet apart and pour gravll between the Bame; whioh, on being spruad out evenly and rolled, paotad or "sat11 on a level or nearly on a level with the top of the aforesaid guide boards the earth from the dltohes was to be thrown up to form the "shoulders'1 or sloping strips whioh we have mentioned. When finished the guide boards were to be taken up and the road was then to consist^ CUS C^erfUí0^cÍJ) of a level roadway having a graveled strip in the oentar 16 feet wide and two strips of packed and sodded soil, each about 5 feet wide and sloping gently towards the drainage ditches on either side.

On the night of the aooldent, for it ooourred at night, the road had bean completed from the oity to the point of accident; and along the completed portion presented the appearance Just mentioned; but' Just at this point the guide boards vie re still standing and protruding some inohes above the level of the gravel within and of the shoulders without.

It is not made olear by the evidence whether the graved had yet sat, or had settled; or whether the shoulders had yet been thrown up to their proper level or had become soft on account of rtins. But all this is quits immaterial for it is an (indisputad fact that the guide hoards still stood in place and that these guide hoards caused the accident whan plaintiff ran partly off the gravel with one wheal sinking in the f#### unfinished shoulder and the rT other sinking in the loose^sunken gravel.

The evidence shows that plaintiff had no knowledge that the work was going on at that point, and also that neither harrier nor red light had been placed hy defendant to warn travelers that suoh work was going on and that at this point an obstruction stood in the roadway which narrowed it down from a clear patch of 26 feat to one of only 16 feet. In other words there was nothing to warn travelers that, from this point on, they must confine thesiBielves strictly within the lines of the graveled portion of the road. And this failure to warn traveler», especially hy night, of the changed and dangerous condition of the road thence forward, was In our opinion legal naglegenoa. Our Jurisprudence le overwhelmingly that way. Jacobs vs Jacobs, 141 La. 273, Citing; 134 La 455, 128 La 182, 126 La 594, 120 La 831, 118 La 77, 104 La 412, 50 An 284. See also Allen vs Mindan, 127 La 403, Citigg; 121 La 910, 41 An 1031. Also, Aucoin vs City, 106 La 271; Smith vs Telephone Co. 7 Orleans Appeals 371; Gas Co.vs Patterson , 12 Orleans Appeals 410.

XX.

So much on tha subjecji of defendants negligence; and now as to the alleged contributory negligence of plaintiff.

The aooident occurred in this wise. Plaintiff was coning from the oity, going at a moderate rate of speed <15 or 18 miles) and overtook another automobile proceeding at a still slower rote, just at tha point where the guide boards still stood. Ihe other driver did not yield sufficient roadway to pass him by on the graveled portion of the road, and plaintiff turned asl&a slightly for that purpose. In so doing her loft wheels oame off the gravel and onto the shoulder, thus bringing her automobile directly over the upstanding guide board , by whioh her auto was oaught and almost wrecked and she herself thrown forward and hurt.

It is charged that it was contributory negligence on her part to leave the graveled1 atrip and turn partly upon the unsurfaoed part of the road; and some authorities are cited, as upholding that contention; but we do not think they do.

At moat they hold this; Shat it ia not the duty of municipal and oounty authorities to maintain in thoroughly good order, the whole width of a street or highway, hut only a reasonable portion thereof sufficient for the purpose of travel; and that a traveller who leaves the ordinary path "without soma aufflolent reason for doing so ", MAY he guilty of oontrihutory negllgenoe under the particular # oiroumstañaos surrounding the ooourenoe. Goelz vs Ashland, 75 Wis 642; Carey vs Hubbardston, 172 Mass 521- (Burke vs Tricalli, 124 La 774; and Tatje vs Frawley, 52 An 884, are Illustrative of such circumstances.)

But the general rule is thus laid down by Cyo, Vol 28 p 1400, whioh is both reasonable and supported by ample authority, to wit; There is no rule of law requiring a traveler to keep in the usually traveled portion of a public way; and the mere fact that a person is off the traveled portion of tli" roadway at the time he was injured, does not per se constitute oontrihutory neglegenoe.

And again; A traveler at night, in the basence of knowledge to the oontrary, has the right to aot on the assumption that the street or way is in a reasonably safe oondition for travel by night as well as by day; and is not bound to antloipate that he will encounter excavations (or other obstructions) without having some notioe thereof by$ lights or other precautions taken for his proteotion» 28 Oye 1452.

December 12th, 1921.

We find no contributory neglegenoe In plaintiff»

III.

As to the ijuantuu of damages; It Is not disputed that plaintiff paid ‡380 for the repair of her automobile and that this amount was reasonable. As to the personal injuries suffered by herself, it is shown that she wap thrown violently forward, had her knee lacerated and her arm bruised, and received suoh a severe shook to her nervous system that she was detained at home for three weeks, under the daily core of her physlean for the firpt week, and afterwards every other day; that she suffered and still suffers from severe headaches brought on by her nervous state; and on the whole we think she should be allowed^ say^ $#00 for her persona! injuries.

She judgment appealed from is therefore reversed; and It is now ordered that plaintiff, Mrs. Myrtle S. Feital, have judgment against defendant, Hampton Reynolds, for the full sum of Bight hundred and eighty dollars (j380]^ with legal interest from jr.dioial demand until paid and the costs of both courts.

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