Whalon v. Sewerage & Water Board

O’NIELL, J. The plaintiff sued the city of New Orleans and the sewerage and water board, praying for judgment against them in solido for $25,000 damages, for personal injuries which she alleged she had suffered by stumbling and falling upon a broken and uneven sidewalk. The pavement had been taken up by the sewerage and water board to lay pipes under the sidewalk. When the pipes were laid and the trench filled, the ground was not properly packed before the brick pavement was relaid. The consequence was that the cement seams between the bricks cracked, and the sidewalk became very uneven and unsafe to walk upon at night. It was at night that the plaintiff fell and was hurt. Judgment was rendered against the city of New Orleans for $2,000, and in the same judgment the plaintiff’s demand against the sewerage and water board was rejected. The city alone appealed. In answer to the appeal the plaintiff prays that judgment be rendered also against the sewerage and water board, and that the amount of the judgment be increased to the sum sued for. [1] As the city of New Orleans did not pray for a judgment in warranty or indemnity against the sewerage and water board, the latter is not before the court, even as appellee. The only remedy the plaintiff had for reversing the judgment rendered in favor of the sewerage and water board was by an appeal from the judgment. Having failed to avail herself of that remedy, the judgment [737] is final as far as the sewerage and water board is concerned. The defenses urged by the city of New Orleans are: First, that the city is not responsible for the neglect of the sewerage and water board to replace the pavement in a safe condition; and, second, that the plaintiff was aware of the unsafe condition of the sidewalk, and could have avoided the danger with ordinary prudence. [2] We have concluded that the latter defense is sufficient. The accident happened in front of the premises adjoining the plaintiff’s residence. She admitted in her testimony that she was aware of the unsafe condition of the sidewalk, and had written a complaint to the superintendent of the sewerage and water board before the accident. Her testimony convinces us that, with ordinary care, she could have avoided the accident. The judgment appealed from is annulled, and the plaintiff’s demand is rejected at her cost.