
    MRS. E. LEE ROWE VS CITY OF NEW ORLEANS & THE SEWERAGE & WATER BOARD.
    NO. 7375
    CHARLES P. CLAIBORHE, JUDGE.
    May 20th. 1918.
   CHARGES F. CLAIBORME JUDGE.

Plaintiff "unwittingly walked into" one of the several open canals of this City; hence thla^suit in damages. From a gment rejecting her demand plaintiff appeals.

The accident ooourred at the corner of Dublin and Belfast, in the rear of the City, in a locality lately developed, sparsely settled, and which may be described as follows;

Dublin Street or Avenue in one block above Carrollton Avenue and runs parallel with it, from the River to the woods; it is 100 feet wide. That section of the country was annexed to the City of Hew Orleans only in 1874. Some years before, a drainage canal had been dug alona the lower side of this street. The loser bank of the canal is adjacent to the property line, and runs S3 feet In a gentle slope of about 36 aegreea bafore it reaches the canal proper which is 14 feet wide. The bottom of tbe canal, at its lowest depth, is a little over ten feet from the surface of the street; the oanal is 60 feet wide from top of bank to bank.

Belfast Street mna at right angles with Dublin Street and bisects it 26 blocks from the river in the direction of tbe woods. It runa up from Carrollton Avenue to Dublin Street then» across and beyond it. It is SO feet wide from property line to property line. The sidewalk upon each side is About nine feet wide. The sidewalk, on the river side, is paved for * dlstmnoe of only 150 feet, leaving the remainder unpavea.

At the end of this sidewalk there is a foot-bridge crossing the Dublin Street canal. The Street proper is not paved. Along ths centre of the sidewalk on the wood side or on the right hand side going up towards Dublin Street there is a cement pavement from Carrollton Avenue extending to 10 feet from ine comer of Dublin street, or fax fron the point where the bank of the Canal begins. Proa the and of this pavement the ground continues covered with grass, and extends 19 feet until it reaches the bank of the Canal; there was no barrier of any sort at the end of this walk to warn anyone of the presence of the Canal; a little beyond this paved walk there stood a Chinaball tree. At or near ths end of this pavement, on the left is a two-plank walk running diagonally aoroas Belfast Street frost ths wood nido banquet to the river side banquet until it reaches the head of the footbridge crossing Dublin Canal. There is an electric light at the corner of Carrollton Avenue and Belfast* 286 feat* another at the corner of Dublin and Apple, 326 fast, end s third at the corner of Dublin and Aprleot 325 feat distan There are very few houses on the upper side of Dublin Street.

The plaintiff describes tbs manner in which she fell as follows*

She was 72 years old, weighing about 165 pounds, suffering from no inflrmlty^as stated by her Counsel che"had been an unusually healthy and active woman;' and of an active temperament; her eyes sere good, and she used glasses only to sew or read; she had lived in this City since October 1893, but sot in the neighborhood of the accident; she had gone there but onoe before in the month of Nay, «han she walked up Apple Street, one block nearer the river than Belfast, crossed the Dublin Street Canal and walked to Cambronne Street, to soo a friend, whither she was again going at the time of this aeeldent

On August 16th. 1916 she strived from Indiana on the Illinois Central Railroad; She reached Hew Orleans at 8;30 P.M., abe expected this friend to meet her there, hut the friend did not show up; the object of having this friend eome to Met her wss simply because she was going to her house; she had not ths leaa^Boubt about her ability to find her nay at night because she had- lived in this city for 25 years; she did not think she would have any trouble in finding any place in this City. hoarded the St. Charles Belt Cara and asked the m conductor to let her off at the 2500 brook on Carrollton Ave; the oar stopped at- the -2600 blook and She got off, as she thought, on Apple Street, but in reality on Belfast Street^one block further than Apple Street, but she did not know it. She walked up Belfast Street about half a block, and then to use her own language t

"I happened to see some persons on a gallery and I asked them how far X had to go to get to cambronne Street; they told me it was two blocks from the- corner of Dublin; the gentleman came and talked to me a little while, and said this is a very dark street, I said I am not afraid, because I am used to going wnereever I want to go; he went back, I 7<ent on, and in two minutes X felt as if I stepped on a schellinger walk, but the idea was at the moment that it was the street with a damp place; but still I had the feeling I was hot afraid, so I walked along and without any warning I was■down.
X didn’t know where I was. I din’t know that I had fallen into anything, but I could not get up."

It is evident that the people to whom she talked on the gallery were the residents of the last house on the blook adjoining the oanal, as shown on the plan in evidence^and that the "damp ground" which she felt under her slippered feet was the ground beyond the paved sidewalk 19 feet long up to the bank of the Canal. This gallery is IS feet fromtt'ne sidewalk.

She adds that tnere was a growth of weeds there; that sue did not see the little plankwalk on the left crossing the street diagonally and leading to the head of the bridge across the canal; it was too dark to see anything; she aid not kno\ whether the night was dark or not, but it was a. very dark at tnat particular spot; she was in a hurry to get to her destination. Since her fall a fence na3 been erected some feet from the canal, and tne undergrowth has been cut away. She was a dressmaker for many years, then gave massage treatment, and in that occupation, often went out at night at 9 and 10 o'clock, and went home alone witnout the jeast fear; after this accident sice was not able to run a sewing machine because her eyes were affected and she could not see any; she had no trouble with her eyes before this accident; she wore glasses then only to read and sew; but up to the time of the accident she.supported herself by sewing.

Dr. J. D. Six says the plaintiff was "far above the average of her ago In activity."

A witness who resided on Belfast Street, at a distance of 90 feet from the Corner of Dublin, testifies that on the night of the accident the two lights on Dublin Street, corner of Apple and corner of Apricot were burning, and gave sufficient light for him to go across the canal.

The three elements of negligence and fault charged against the defendante are 1st. That they maintained no light at the oorner of Dublin and Belfast Street as It was their duty to do under the City Charter of 1912; 2nd. That they should have had a bridge at the end of the cement walk, In order to prevent accidents auoh as the one which happened to her," and 3rd. In default of a bridge they should have put up harriers to prevent people from falling where plaintiff fell.

Me do n>'t find It necessary to examine those allegations, as we have Come to the conclusion that plaintiff brought her troubles upon herself by her owjfwsht of oare ead-negH-getteo and that sne cannot therefore reoover; she oannot take advantage of her fault.

f Me find the law clearly set forth in the following authority: 28 Cyc. p. 1418: "As a general rule, where a person Injured by reason of a defect or obstruction In a street or other public way, Is himself guilty of some act of omission amounting to a want of-ordinary care which concurring or oooperating with the negligence of defendant materially contributes to or is the proximate cause of the Injury complained of, has he is- guilty of contributory negligence precluding a recovery, notwithstanding negligence on the part of defendant In causing or permitting such defect or obstruction, and notwithstanding a charter or statutory provision imposing a liability upon the municipality for Injuries arising on account of the condition of any street or public ground^

Thu* if, by the exercise of ordinary care and alllgenos the person injured could have avoided the injury, and he falls to exercise such care and diligence, he cannot recover for injuries arising from a nuisance erected and maintained in a public street, or by reason of defendant's failure to properly safeguard excavations'1.

In the case of Sauer vs Union Oil Co., 43A 699 the Court said! "An employee in a oil mill, who is directed by a superior to go to a distant point, with no direction as to th* route to take, if he is ignorant of the route, should inquire, and If, failing to inquire and without the direction or knowledge of the superior, he seleots an improper and dangerous route through and amongst machinery, and passing over and under running wheels and belts, when there were other proper and safe routes, he iB at fault and assumes the risk of resulting Injury."

In the case of Tatje vs Frawley 52A 884 the Court denied relief on the ground of contributory negligence, to a pedestrian who, while running for a car, at night, along Grevier Street, fell into a side gutter, the existence of which he knew, or should have known, from his acquaintance with the topography of the City.

In the case before us, the broad canal stretched its gloomy length and breadth in apparent and conspicuous warning; the paved walk on which plaintiff traveled ended 19 feet before it reached tne canal; the distance from the end of the walk to the bank of tne canal was unpaved, unused, trackless, covered with weeds and damp; that, of itself, was sufficient to act as a red light and to put a pedestrian upon notioe that there ^as danger ahead and to call upon him for extra caution. The plaintiff had crossed the canal once before at Dublin Street and knew, or should have known, that its course ran in her path; if she did not remember it, she cannot shift the consequences of her want of memory upon the defendants. While there was no electric light at that particular corner, there were three lights in different directions within 325 feet of the spot; we must presume that they gave enough light to inform one of the presence of a canal. The night was not so dark, as plaintiff herself testifies that she saw persons upon a gallery IS feet from the sidewalk.

Jf she did not know her way, she should have inquired of them. With reasonable care plaintiff could have avoided the accident.

Judgment affirmed

May 20th. 1918.  