Nolan v. City of Shreveport

WEBB, J. In this action plaintiff, Mrs. Lee Nolan, seeks to recover judgment against defendants, City of Shreveport and Southwestern Gas & Electric Company, for damages resulting from injuries alleged to have been sustained by plaintiff while crossing a street in the city of Shreveport as a consequence of plaintiff’s having fallen on a gas shut-off pipe constructed by the Gas Company and maintained by defendants in the street. The defendants excepted that the petition failed to state a cause of action, which was overruled, and they answered denying any negligence and, in the alternative, alleged that plaintiff was guilty of contributory negligence; and the cause being tried on the issues presented, judgment was rendered rejecting her demands, ■ from which she appeals, and defendants, answering the appeal, pray that the exception filed by them be sustained, and, if not, that the judgment appealed from be affirmed." EXCEPTION OF NO CAUSE OF ACTION The exception is apparently urged upon the following grounds; 1.' That ' there' is ’ not "any wéll-pleaded' 'fact' of negligence on the part of defendants. 2.’ That plaintiff did not allege she exercised ordinary care in crossing the • street. • • 3. That the facts alleged show that plaintiff was guilty.of contributory negligence. [220] I. The plaintiff alleged that the gas shutoff pipe on which she tripped and fell had been negligently constructed in the street by the Gas Company about three years prior to the date of the accident and that in installing the gas shut-off pipe it had been left standing approximately eight inches above the surface of the street, thereby rendering it a very dangerous obstruction to the life and limbs and safety of the public, and, further, the pipe was located in the street directly in front of plaintiff’s residence, thus rendering it especially dangerous to one attempting to cross the ^street from plaintiff’s residence; and further, that the pipe had been permitted to remain in the same condition and place since its construction to the date of the accident, to the knowledge of defendants. Plaintiff also alleged that the city of Shreveport had failed to properly light the street. Ignoring the allegation as to the street not being properly lighted, in considering the exception, we are of the opinion that the allegation that the gas shut-off pipe was installed in the street in such manner as to leave it extending eight inches above the surface of the street, is one of fact and shows the street was obstructed, and while the extent of the obstruction may have been set forth with greater particularity as by stating the diameter of the pipe, yet we think that was a matter- of which the defendants may have availed themselves by an exception of vagueness (James vs. City, 151 La. 480, 91 So. 846), but that any obstruction of a street being unlawful the allegation was sufficient. II. While the plaintiff does not allege that she exercised ordinary care in crossing the street, counsel do not cite any authority holding that such an allegation was necessary, and in Buechner vs. City of New Orleans, 112 La. 599, 36 So. 603, a cause in which damages were awarded for an injury sustained through the negligence of the city to maintain the street in a safe condition, it was said: “In order to make out a prima facie case, the plaintiff must allege and prove that he was injured by the fault or negligence of the defendant. * * * It is true, as a general rule, that if the evidence shows that plaintiff was also at fault, and that the concurring fault of both parties produced the injury, plaintiff cannot recover. But it does not follow that plaintiff must allege and prove that he was without fault.” It is true that the rule of law is that the city is only bound to maintain its streets in a reasonably safe condition for persons exercising ordinary care, and while it may be that the plaintiff should allege facts showing that the street was not in such condition, in order to charge the city with negligence, yet we think that the allegations of fact showing that an obstruction had been placed in the street, is sufficient for that purpose, and in default of any law requiring plaintiff to allege that she was in the exercise of ordinary care, we think it may be assumed she was in the exercise of ordinary care. III. The contention that plaintiff alleged that she was guilty of contributory negligence-is based upon plaintiff’s allegations of the circumstances occurring just prior to and at the time she attempted to cross the street, which were in substance that: A neighbor’s child who lived across the street from plaintiff was visiting her at about 8 o’clock on the evening of the [221] accident, was suddenly seized with violent chills and rigors, and that plaintiff became alarmed, and took tne child in her arms and hastened out of the house and across the street, and in so doing she tripped on the gas shut-off pipe and fell, sustaining the injuries of which she complains. While the action of plaintiff may have been imprudent from some points of view, it does not necessarily follow from the pleadings that it was so; she did not allege that she knew of the obstruction in the street or that she proceeded heedlessly and without regard to the way, and we cannot presume the existence of such conditions; but, on the other hand, in view of the general rule that one using the streets of a city may presume that it is not obstructed, and that she exercised ordinary care, we are of the opinion the court properly held that plaintiff did not allege that she was negligent, and the exception was properly overruled.