
    Thos James,tutor vs City of New Orleans,Appellant.
    No.8950
    Charles P.Claiborne,Judge.
    June 25th 1923.
    
      
    
   Thos James,Tutor vs City of New Orleans,Appellant.

No.8950

Charles P. Claiborne,Judge.

Plaintiff sues the City of New Orleans for $20,076 for injuries received in falling into a manhole on the sidewalk.

At about 3.30 P.M. the plaintiffs' mother was walking upon the sidewalk of Common Street;when she reached a point near the entrance of the St.Charles Hotel she stepped upon an ¿7T iron lid or plate covering a manhole upou,the sidewalk_near the /to- / é>~ streetjthe lid ty?£ed;her foot and leg fail into the hole,she suffered injuries which are ’alleged to have brought her to her-death.Por this her .children filed this suit.

The photograph of the sidewalk and of the manhole are in evidence.

The case was tried before a jury who rendered a verdict of $3500 .The defendant appealed.

The law of the case is settled by abundant decisions.

In Lemoine vs City 151 La 565 the Court said:

"Municipal corporations owe it to the public to keep the sidewalks in such a condition that pesdestrians who are ordinarily careful will not be exposed to injury.The right of the citizens to recover damages for injuries sustained by reason of the failure of the municipal corporation, to discharge the mandatory duty thus imposed on it is beyond question".

quoting many'authorities.134 La 820-3 Abbott 1001 S 1014 p.2307 Elliott S 793-126 La 598-112 La 599-105 La 271-106 La 458-104 La 348-43 A 327-41 A 1035-leading case 30 A 220 - 2 Dillon . Sec 788 .

The question arises what is the extent of this Mandatory duty? The answer is found in the decisions and in commentators. 16 Am.Dig 789 : " A City is not liable for latent or unseen defects in its sidewalks not discoverable by the exercise OÍ ordinary care}' and- if' a sidewall: at the time and place of an alleged accident is in a reasonably safe condition for ordinary travel 'thereon by. persons using such degree of care and .caution a.S- reasonably prudent persons would use for their safety,the Bi'ty is not 'liable for- injuries resulting from its use".See 134 La 826 .3 Abbott Mun Copr S.1019 p.2313 " Actionable negligence cannot b'e predicated upon -the exie'tance of a latent defect which it is impossible to discover through ordinary agenoies or means- by the exercise of ordinary care and diligence".53 S.W.210-97 N.E.795-104 Pac 660-90 Atc.782 -88 N.E.188-128 S.W. 819 .

6 Mc Quillin S.2815 :

" If a defect in a street is a latent one,notice thereof will not be imputed to the municipality,provided the defect could not have been' discovered by the exercise of ordinary care xxx if there is no reason to suppose the existence of latent defects they need not be searohed for.3 Abbott A S.1041 p.2342.

It is also the law that in order to render the municipality liable it must have had notice of the dangerous condition of the sxdewalk.125 La 356 .

3 Abbotte SM 1034 p.2328:

" The existence of a liability depending absolutely upon the.possession of knowledge of the defect by the publio corporation,it is therefore necessary for the plaintiff to show ■affirmatiyely in all oases notice either actual or constructive of' the particular defeot causing the injury complained of and the lapse of reasonable time thereafter within whies, it migfefc have bean Remedied in the exeroise of ordinary, care and diligence as depending upon the circumstances of that particular Casa",Also 3 Abbott §.1026 p.2321-30 A 220 .

Actual notice is notice to an officer'of the munipi-'peSiity oSarged'with the .duty of .maintaining sidewalks in good condition or seeing that they are so maintained.

In the absence of actual notice a City is only liable for defects in sidewalks as are apparent.16 AH.Dig.789 125 La 859 .

" The municipality is chargeable with ( constructive ) notice of such defects as ordinary care and reasonable diligenoe would discover^ and the fact that the defect is open to common observation is constroutive notice" 6 Mc Quillin S 2813 -30 A 220 .

S 2814: " If the defect has existed for such a length of time that the munioilality in the exercise of ordinary care, ought to have discovered and remedied it ,notice of the defect will be imputed to the municipality" 3 Abbott p.2333 S 1038-125 La 356-112 La 599-43 La 334 .

The nearest case to the one under consideration that we have beena able to find is that of Lorenz vs City 114 La 802 where a child stepped into a small hole in a plant forming part of the cover of a rire well in a street.But in that case " three witnesses stated that the plant was rotten;two of them testified that the hole had been in the plant for several months;plaintiff testified that he saw the hole in the covering about two weeks Before the accident;the hole in the •rotten plant was about four inches wide xxx the plant was rotten, and the hole produoed by decay had been visible for several weeks,if not months".

But in this case the manhole was made of iron,it lay flat,on a level with the sidewalk,and there was nothing about to indicate any defect in it,except that it looked old.It was only when one stepped upon it that it was discovered that it tilted.lt is not contended that the City' ever had any actual notice of its dangerous condition;nor was there anything about the 444 exterior appealance of the lid or of the manhole suggestive of a defect.The Oity was not bound to make any minute Investigation or experiment -to test the condition of the manhole. It was hound only for ordinary oare and reasonable diligence / in ascertaining its outward condition.In the condition in which •'N^the manhole was the only way by which the Oity could have ascertained its true condition would have been/walk upon it^or to have raised the lid^and to have made a close and minute inspeo- ^ tion of it.This would have amounted to extraordinary dillgenoe ^ which the law did not demand.lt had no occasion to do that as as that particular defect had not been sailed to its atten-. tion and was not apparent.

Witnesses testified that others besides- the plaintiffs' mother,had slipped upon the manhole and had .received Wjinjury.In the absence of proof that those accidents had been sommunicated to the City authorities they would not serve a® / evidence of actual or constructive notice to the City.They 1 would not add to the outward appearance of the manhole,but Vj would only serve to establish that there was a latent feature f danger in the manhole.

6 M.c Quillin S 2727:

"Prior accidents at the precise place where plaintiff was injured and caused by the same defect or obstruction^ do not necessarily show negligence on the part of the municipality. If the full description of the alleged defect in a municipal* case shows that it was not naturally dangerous,and must almost * inevitably ocour'in the many street^ miles of City^unless a ^grievously burdensome degree of care and expense is to be ^ exacted,a recovery will not be allowed even though witnesses J.0 testify to prior accidents" 86 N.E.833

It is therefore ordered that the judgment herein be reversed and set aside,and that there now be judgment in favor pf the defendant rejecting plaintiffs! demand at theS?- cost id i both' Courts.

Judgment reversed.

June 25th 1925.

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