
    No. 10,594.
    Mrs. Elise Peetz, Widow, Etc., vs. The St. Charles Street Railroad Company.
    1. The failure to examine witnesses who are employes will not justify the application of the presumption of negligence, unless as in the case of Day vs. Railroad, 85 An. 694, they were present or it be made evident that they had knowledge which the employer desired to conceal. .
    The duty of municipal corporations is only to see that its sidewalks are safe for persons exercising ordinary care and prudence.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.
    
    James Timony and Branch K. Miller for Plaintiff and Appellee:
    A street railway obligating itself to keep in good repair and condition the bridges along its line, is responsible for an injury caused a person by a breach of this obligation. 2 Rorer on Railroads, p. 1486; 1 Thompson on Negligence, p. 359.
    The fact that a defect in such a bridge is caused by a third person does not excuse the railway, which knew or ought to have known of the defect, and has negligently failed to remedy it. 48 Pa. St. 320.
    The failure of a company charged with negligence or wrongful conduct, to examine as witnesses its employes, by whom the negligence or wrongful act is charged to have been committed, raises a strong presumption that the charge of negligence or wrongful conduct is well founded. Day vs. Railroad Company, 35 An. 098; 1 Thompson on Negligence, p. 514.
    
      Harry H Hall for Defendant and Appellant:
    No proof has been offered to sustain the essential averment of liability in the-petition that the “railroad company or some of its agents or its employes within the scope of their employment had made and fastened down a piece of wood.”
    IX.
    The piece of plank complained of was not a nuisance or an obstruction to travel, and it was not negligence to either so place it or allow it to so remain.
    The law does not require a municipal corporation to respond in damages for every injury that may be received in a public street, nor is the corporation required to have its sidewalks so constructed as to secure absolute immunity from danger in using them, nor is it bound to employ the utmost care and exertion to that end. Its duty, generally stated, is only to see that its sidewalks are safe for persons exercising ordinary care and prudence. Dillon on Municipal Corporations} 1019; 78 Illinois 347; 14 Allen 508; 24 "Wisconsin 270, 342.
    
      The corporation is not an insurer against accidents upon the streets, nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets are in a reasonably safe condition for the travel in the ordinary modes. Billon on Municipal Corporations, 1039; 42 Missouri 566, 571; 45 Missouri 449 ; 32 Grattan 792; 57 Indiana 192; 21 Wisconsin 485; 20 Minnesota 117; 31 Kansas 560; 54 Mississippi 391; 6 Vermont 245; 65 Illinois 155; 6 Cushing 524, 534; 87 New York 568; 35 New Hampshire 74; 105 Massachusetts 313; 28 Kentucky 264; 8 Cushing 174; 29 Iowa 73.
    The duty of keeping the streets and highways in repair is performed when the traveled way is sufficiently level and smooth to enable persons by the exercise of ordinary care to travel with safety and convenience. Billon on Municipal Corporations 1016; 13 Gray 59.
    To fulfil an obligation to keep a street in repair, the company must keep it in such condition that the ordinary and expected travel of the locality may pass with reasonable case and safety. McMahon vs. Railroad, 75 New York 231.
    III.
    Plaintiff was guilty of contributory negligence.
    If the party injured knew of the defect or obstruction, and ought reasonably to have avoided it by going outside of or around it, and did not, he can not recover. Billon on Municipal Corporations 1022; 61 Barbour 437; 33 Ohio 246; 8 Allen 137; 32 Ohio 66; 4 Clifford Cir. Ct. 138.
    Before a recovery can be had it must appear upon the whole testimony that the person used, under all the circumstances, ordinary care to avoid danger: Billon on Municipal Corporations, II, 1019; 81 Illinois 300; 51 Vermont 131; 84 Illinois 82; 52 Illinois 270; 33 Ohio St. 246.
    IV.
    “ It is also essential to liability that the plaintiff should haveboen using reasonable or ordinary care to avoid the accident.” Billon on Municipal Corporations, II, ■ 1040.
    
      Onus in respect; to proving due care on part of plaintiff is upon him. 12 Peck 176; 82 Maine 46, 574; 4 Gray 178, 895, 397; 7 Gray 100; 6 Iowa 443.
    A city is not liable to one who sustains an injury by reason of a defective sidewalk, if, by looking, the injury could have been avoided, and no excuse for failure to look is given. Plymoth vs. Milner, 17 Hd. 324; 20 Northeastern 235.
    In an action for damages for personal injuries received at night by reason of a serious defect in the sidewalk, the fact that plaintiff attempted to pass over the defect when the night was fair and there were two street lamps lighted • near by, is evidence of contributory negligence. Scranton vs. Gore, 124 Pa. St. 595; 17 At. 144.
    1. Municipal corporations are only bound to keep such streets and parts of streets in repair as may be necessary for the use and convenience of the traveling public.
    2. In order to render a city liable for defects or obstructions on its streets, it must appear that under the particular circumstances of the case it was its duty to have removed the obstruction or repaired the defect, and that the person complaining was at the time in the exercise of ordinary caro; and the facts are for the jury under appropriate instructions.
    3. Although a municipality may have failed to exercise proper care in the repair of its streets, and but for such negligence the injury would not have happened, yet the party complaining can not recover if he was aware of the defect and failed to use ordinary care to avoid the accident. 63 Missouri Repts. 417; Craig vs. City of Sedalia.
    
      The argument that defendant’s employes must or should have known of this obstruction because they were at dinner in the house, twenty feet off, in range of view, at the time when it was placed, comes with little grace from plaintiff, who, being a person of sound sight and unimpaired faculties, ran over the same obstruction in broad daylight without seeing it. Ackerly vs. Sullivan, 84 An. 1157.
    In the recent decisions of this tribunal, which hold a railroad company responsible to persons injured, the injury, in each case, was due to a defect in the street, caused by the company’s act. Vide Cline vs. R. R., December 2,1889, South. Rep., Yol. 6, p. 851; vide Dominguez vs. R. R., 35 An. 751. And this distinction has, I consider, been fully recognized by this court.
    In a suit to recover duos by a wharf lessee it was urged that “ the lessee has not complied with the obligations of the contract by neglecting to place check-posts, repair wharves, etc. The contract is therefore null and void.”-
    The court answered this objection by saying: “If the lessee has failed to place check-posts and to repair the wharves as required by the contract, the council has the right, under said contract, to annul the lease. * * * Rut how can the defendants expect to be heard when they complain of the non-execution of a contract to which they are no party. They have mistaken their remedy, and the council of Jefferson City is the source from which they must seek redress.” Swartz vs. Platboats, 14 An. 244.
    At common law an agent is personally responsible to third persons for doing something which he ought not to have done, but not for not doing something which he ought to have done; the agent, in the latter case, being liable to his principal only.
    Dor non-feasance or mere neglect* in the performance of duty, the responsibility therefor must arise from some express or implied obligation between particular parties standing in privity of law or contract with each other. No man is bound to answer for such violation of duty or obligation except to those to whom he has become directly bound or amenable for his conduct. Delaney vs. Rochereau, 34 An. 1128. And in the same cause, in a full and learned exposition of the authorities, this court held that such was likewise the rule of the civil law. Vide also Thompson Neg. I, 237.
    A company, organized to supply the inhabitants of a city with water, contracted with the municipal authorities to supply their hydrants, but, failing to do so, the fire department wore unable to extinguish a fire in the city.
    Held, that the company were not liable in damages to the owner of the property destroyed. 83 Am. Rep. 1, Nickerson vs. Bridgeport Hydraulic Company.
    If mere strangers may enforce the contracts by actions on the ground of benefits flowing therefrom to them, there would be no certain limit to the number and character of actions which would be brought thereon. Davis vs. Clinton "Waterworks Company, Supreme Court of Iowa, June 15,1880.
    A mere contractor, though, upon a public work, who is not a public officer, is iiot liable to third person for damages occasioned by the non-performance of the obligations of his contract.
    There is a material and plain distinction between obligations or duties imposed by laws — as upon public officers — and those created by contract merely. In regard to the former, they are created for the benefit of and are due to every one who has occasion for or an interest in their performance; and hence, any •one who sustains an injury which is peculiar to himself, by reason of their non-performance or their improper performance, may maintain an action against him who owes the duty, to recover the damages thus sustained. But as to the latter, they rest between the contracting parties alone, and none but parties or privies can enforce them, or maintain an action to recover damages-for a neglect or refusal to enforce them. Accordingly held, that one who had entered into a contract with the State to keep a section of the Erie canal in-repair, was not liable to an individual who had sustained damages in consequence of his neglecting to perform that duty. 38 Barbour, X. Y., Supreme Court Reports, p. 163, Pish et als. vs. Bodge.
    To hold defendant liable herein it must have had actual or implied knowledge of the dangerous character of the defect.
    “ Where streets have been rendered unsafe by the direct act, order or authority of the municipal corporation, * * * * * no question has been made or can reasonably exist as to the liabilityof the corporation for injuries thus produced when the person suffering them is without contributory fault, or was-using due care. * * * * * Where the duty to keep its streets in safe condition rests upon the corporation it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as for those caused by defects 'occasioned by the wrongful acts of others; but, as in such cases, the basis of the action is negligence, notice to the corporation of the defect which caused the injury, or facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability.” v Billon on Municipal. Corporations, II, Secs. 1024 (790), pp. 1046-7-8.
    “A suit for damages resulting from falling over apiece of scantling which stretched, across the banquette of a street, with one end resting on the door-sill of a house-in charge of the defendant, can not be sustained in absence of proof that defendant or his employes placed the scantling there, or knew of its being so-placed.” Ackerly vs. Sullivan, 34 An. 1156.
   The opinion of the court was delivered, by

Breaux, J.

Plaintiff alleges that she was injured on the night of the 26th of November last, between the hours of 8 and 9 o’clock, by a fall occasioned by a plank nailed on a bridge at the intersection of Baronne street by Euterpe street; that in the fall she broke her left arm between the elbow and the wrist, and that she was bruised on her side and hips; that she suffered pains, mental and physical, and was confined to her house about one month under medical treatment.

She claims damages in the sum of $10,000.

The answer is a general denial.

The case was tried by a jury and a verdict was rendered in favor of the plaintiff for the sum of $750.

From this judgment the defendant appeals.

The facts are that plaintiff, who is about forty-five years of age, and who was, at the time, in the enjoyment of good health, received injury in a fall caused by stumbling against a plank nailed on a bridge, which the defendant company obligated itself to keep in good repair, in a contract dated the 11th day of April, 1881.

On the 12th day of December last she notified the defendant of the accident, and of the amount she claims.

There are two parallel bridges over the gutters crossing Baronne street from the sidewalk to the railroad bed.

The gutters covered by the bridges are the continuation on Baronne street of the gutters on each side of Euterpe street.

The plaintiff nearly always passed on the lower side of Euterpe street.

On the night of the 26th of November last she passed on the upper side of that street, and was crossing the upper bridge on Baronne street, when she stumbled and fell.

The plank against which she stumbled and fell was about three feet and a half in length, ten inches wide, and about two inches in thickness.

The plaintiff, as a witness, was questioned with reference to the • accident.

She was alone at the time. She stated that she fell on her arm; after the fall she rose hastily and went on to where she intended to-go. At the time she did not know,that her arm was broken.

The witness also testifies that there was an electric light burning brightly at the corner of the street near which she fell.

She further testifies that she had seen planks nailed on the other bridges, as this was; that if she had looked she could have seen the plank, and adds:

“ I wouldn’t have stumbled against it. I didn’t want to fall.”

Two days after the accident she called in a physician, and was informed by him that her arm was fractured.

It is not proven by whom the plank had been nailed to the bridge.

It was put there to cover a crack on this bridge.

Most of this plank had been worn down by the wheels of passing: carts and carriages to nearly the level of the bridge; that part on which plaintiff stumbled was two inches and one-sixteenths above its level..

Counsel for plaintiff requested the court to charge that the failure of the defendants to call in their employés (to whom was personally entrusted the repairs of the bridge) as witnesses was evidence of the act of negligence charged against the defendant.

This charge was asked on the authority of Day against the Pacific Railroad, 35 An. 694.

The president of the company, who is also the superintendent, testified that he made efforts to ascertain who had nailed that plank, and could not find out who had put it there.

We will first pass upon the refusal to charge as requested.

In the case cited as authority, it is said by the court that the conclusion was fortified by the failure of the defendant to introduce the testimony of any of the employés on the train when the accident happened.

In support of this proposition, the following from Thompson on Negligence, Yol. 1, p. 514, is referred to as an approved authority, by the court, in that case:

‘ ‘ An absence from the trial of the employés of defendant who were on the cars and present at the time of the accident and were witnesses of the injury raises a strong presumption of negligence against the company.”

The case at bar is not similar. It is not shown that the employés knew who nailed this plank or that they had anything to do with it. Inquiry was made by the principal officers' of the company, with reference to this plank. He did not ascertain, he testifies, that the employes knew anything about it.

While municipal corporations and all those entrusted with the keeping of' bridges in good repair should be active and exceptionally careful in the performance of that work, on the other hand those who cross these bridges are not entirely relieved from the necessity of exercising some little care and of giving some attention to their steps.

Damages can not be recovered for all injuries received.

If in the haste of the moment or while the attention is entirely absorbed in thought and meditation an accident' happens, to an unfortunate pedestrian, the fall is not always owing exclusively to the uneven surface.

Most of us are prone to forget that sidewalks and bridges are not always level, and have sometimes suffered severely on account of inattention or forgetfulness; without the possibility of recovering damages.

Plaintiff was not ordinarily careful in crossing the bridge.

There was a bright light near.

She admits that she had seen planks before on other bridges nailed as this was.

That if she had looked.she could have seen it.

The plank was not of extraordinary thickness and was securely nailed on the bridge.

It is not shown by whom it was put on or that the defendant company had notice of the condition of this bridge, or that any complaint was made prior to the accident or that the crossing was at all hazardous.

When the plaintiff, recalling doubtless the pain she endured, sadly says: “I wouldn’t have stumbled against it; I didn’t want to fall,” there is great sine erity in her words and they naturally awaken a sentiment of kindness [and sympathy, but they can not serve to maintain precedents.

It is not possible justly to charge to the defendant that to which plaintiff’s own sad fate has contributed, at least in part.

To hold for plaintiff would be in effect to decide that whenever an accident occurs on uneven sidewalks, or in crossing bridges not level, without regard to the lack of care, damages can be recovered.

It would be to decree, in effect at least, that all bridges and sidewalks should be level, and that nothing about them should be in the least rugged or uneven.

However desirable it may be that all the streets be level, it is not a possibility.

The regrettable accident is not one for which the defendant can be held in damages.

The duty of municipal corporations is only to see that its sidewalks are safe for persons exercising ordinary care and prudence. Dillon on Mun. Oorp. 1019.

It is therefore ordered, adjudged and decreed, that the verdict be set aside and that the judgment appealed from be annulled and reversed and that there be judgment rejecting plaintiff’s demand, with costs in both courts.  