The opinion of the court was delivered by
Bermudez, C. J.
This is a suit in damages, alleged to have been sustained in consóquence of the death cf the husband of plaintiff and father of her minor daughter, occasioned by the gross fault and negligence of the defendants, who are sought to lie held liable in solido.
The case was once before this court, 41 An. 1031, on exceptions by the railroad company, which had been maintained below but which were overruled on appeal, the case being remanded for further proceedings.
The fundamental averment is:
That, on January 21, 1889, John Oline, husband and father aforesaid, was driving a vehicle gently on Calliope street, between St. Charles avenue and Prytania street, in this city, with due care and caution, without any negligence on his part, ignorant of the dangerous condition of that street, when the right fore-wheel of his wagon got into a deep hole by the side of the track of the railroad company, ran into a loose rail, was suddenly and unexpectedly stopped thereby ; that by the shock thus occasioned Cline was violently thrown from the vehicle against the loose rail and against a spike protruding therefrom; the fall resulting in the fracture of his skull and in [331]*331his consequent death, after suffering great agony of pain in body and mind.
It is specially charged that this condition of the street was well known to the officers of both defendants and especially the railroad company, or if not known, could with reasonable diligence have been known, and the danger averted had they done their duty before the happening of the accident.
The prayer is for $30,000 damages.
The railroad company excepted, but its objections were disposed of as has already been stated.
The city pleaded the general issue and averred a contract with the railroad company whereby it had agreed to keep the streets on which it passed in proper condition and order, and that, were judgment rendered against the city, it should recover a like judgment against the railroad company, which was thereby called in warranty but on whom no service was made.
The railroad company answered by a general denial also, pleading-that the plaintiff was no party to the contract alleged by the city and can not sue under it and that said contract contains the remedy agreed on, in case of violation, which is exclusive of all others, namely, coercion to specific performance by the city.
It further avers that its railway was properly constructed; that since then it was, on Calliope street, put out of order by improper-drainage and consequent accumulation of water; that another cause of the condition in which it was put is the constant heavy traffic through that street and the illegal loads hauled over it; all of which made it impossible to keep said street in better condition, and that, the condition in which it was on the day of the alleged accident was not due to any fault or omission of this defendant.
The case was tried by a jury who returned a verdict for $7500 against both defendants, with a reserve of the rights of the defendants as against each other. Judgment was accordingly rendered.
Hence, this appeal by both defendants..
' The circumstances of the accident may be considered as having been substantially proved; but has the evidence established that the City of New Orleans and the railroad company are equally liable and that even in default, the plaintiff himself is not guilty of contributory negligence, sufficient to defeat his right of action against both or either of the defendants.
[332]*332The law governing a case of this description and the principles upon which it rests are plain enough; but it is not always easy to .apply them to occurring cases which generally differ in some significant matter of detail.
The testimony is ordinarily conflicting and such that it is difficult to arrive at the real facts in dispute.
In the present instance the law and principles have been, to a considerable extent, expounded, when the case came up on the exceptions ; but the averments of the petition were taken for true in ■dealing with the preliminary defences; and had the iplaintiff established on the trial, after the remanding of the case, all the facts averred, full recovery could have taken place, leaving out of view in this statement the quantum of damages.
There can be no doubt that a city is under the obligation of keeping its streets, sidewalks, etc., in good order of repair, so at least as to prevent serious accident or injury to persons using the same or to their property; and that, where such happen by the heedlessness or fault of the corporation having previous knowledge of the bad condition of the street, sidewalk, or particular dangerous spot, and without any contributive act, whether by commission or omission of the party afflicted, the corporation can be held to repair the damage ■occasioned.
It is also well settled in law and jurisprudence that although a municipal corporation, by virtue of the right with which it is vested of control over its streets, can legitimately grant to a railway company the privilege to build its track and run its cars on the same, imposing upon it the burden of keeping them, from curb to curb or rail to rail, in good order and condition so as to prevent injury, as it is itself bound to do, the concession of the grant and the imposition and acceptance of the burden do not relieve the corporation from liability should the company fail to comply- with its obligations, and by its negligence and default, inflict injury to one using due care and precaution and not guilty of contributory neglect.
It is also well recognized that a party injured has a double action ¡against both the city and the railroad company regardless of the •contract between them, holding each as primarily responsible, and ■that when the city is muletea it has the right to recover against the railroad company in the same action, if both are defendants and the [333]*333city has properly brought in the railroad company by a call in warranty, or a distinct suit.
It is likewise firmly established that an injured party in order to recover must be shown not to have been guilty of any contributory negligence, that is, the careless commission or omission of acts which, if prudently done or not done, would have avoided the occurrence of the injury occasioned by the heedlessness of another and which is considered as the proximate cause of the accident.
The evidence in this case establishes the stubborn facts of the existence of the hole, of the loose rail and protruding spike on the side, the fall of the man, the fracture of his skull on the ráil and spikes and his consequent destruction and death.
Certainly, there are three parties to this accident who may be. charged with negligence.
As against the driver, it is claimed that the hole was visible, as it was foux- feet long, two feet deep and four inches wide, and it was about 3 o’clock p. m.
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The opinion of the court was delivered by
Bermudez, C. J.
This is a suit in damages, alleged to have been sustained in consóquence of the death cf the husband of plaintiff and father of her minor daughter, occasioned by the gross fault and negligence of the defendants, who are sought to lie held liable in solido.
The case was once before this court, 41 An. 1031, on exceptions by the railroad company, which had been maintained below but which were overruled on appeal, the case being remanded for further proceedings.
The fundamental averment is:
That, on January 21, 1889, John Oline, husband and father aforesaid, was driving a vehicle gently on Calliope street, between St. Charles avenue and Prytania street, in this city, with due care and caution, without any negligence on his part, ignorant of the dangerous condition of that street, when the right fore-wheel of his wagon got into a deep hole by the side of the track of the railroad company, ran into a loose rail, was suddenly and unexpectedly stopped thereby ; that by the shock thus occasioned Cline was violently thrown from the vehicle against the loose rail and against a spike protruding therefrom; the fall resulting in the fracture of his skull and in [331]*331his consequent death, after suffering great agony of pain in body and mind.
It is specially charged that this condition of the street was well known to the officers of both defendants and especially the railroad company, or if not known, could with reasonable diligence have been known, and the danger averted had they done their duty before the happening of the accident.
The prayer is for $30,000 damages.
The railroad company excepted, but its objections were disposed of as has already been stated.
The city pleaded the general issue and averred a contract with the railroad company whereby it had agreed to keep the streets on which it passed in proper condition and order, and that, were judgment rendered against the city, it should recover a like judgment against the railroad company, which was thereby called in warranty but on whom no service was made.
The railroad company answered by a general denial also, pleading-that the plaintiff was no party to the contract alleged by the city and can not sue under it and that said contract contains the remedy agreed on, in case of violation, which is exclusive of all others, namely, coercion to specific performance by the city.
It further avers that its railway was properly constructed; that since then it was, on Calliope street, put out of order by improper-drainage and consequent accumulation of water; that another cause of the condition in which it was put is the constant heavy traffic through that street and the illegal loads hauled over it; all of which made it impossible to keep said street in better condition, and that, the condition in which it was on the day of the alleged accident was not due to any fault or omission of this defendant.
The case was tried by a jury who returned a verdict for $7500 against both defendants, with a reserve of the rights of the defendants as against each other. Judgment was accordingly rendered.
Hence, this appeal by both defendants..
' The circumstances of the accident may be considered as having been substantially proved; but has the evidence established that the City of New Orleans and the railroad company are equally liable and that even in default, the plaintiff himself is not guilty of contributory negligence, sufficient to defeat his right of action against both or either of the defendants.
[332]*332The law governing a case of this description and the principles upon which it rests are plain enough; but it is not always easy to .apply them to occurring cases which generally differ in some significant matter of detail.
The testimony is ordinarily conflicting and such that it is difficult to arrive at the real facts in dispute.
In the present instance the law and principles have been, to a considerable extent, expounded, when the case came up on the exceptions ; but the averments of the petition were taken for true in ■dealing with the preliminary defences; and had the iplaintiff established on the trial, after the remanding of the case, all the facts averred, full recovery could have taken place, leaving out of view in this statement the quantum of damages.
There can be no doubt that a city is under the obligation of keeping its streets, sidewalks, etc., in good order of repair, so at least as to prevent serious accident or injury to persons using the same or to their property; and that, where such happen by the heedlessness or fault of the corporation having previous knowledge of the bad condition of the street, sidewalk, or particular dangerous spot, and without any contributive act, whether by commission or omission of the party afflicted, the corporation can be held to repair the damage ■occasioned.
It is also well settled in law and jurisprudence that although a municipal corporation, by virtue of the right with which it is vested of control over its streets, can legitimately grant to a railway company the privilege to build its track and run its cars on the same, imposing upon it the burden of keeping them, from curb to curb or rail to rail, in good order and condition so as to prevent injury, as it is itself bound to do, the concession of the grant and the imposition and acceptance of the burden do not relieve the corporation from liability should the company fail to comply- with its obligations, and by its negligence and default, inflict injury to one using due care and precaution and not guilty of contributory neglect.
It is also well recognized that a party injured has a double action ¡against both the city and the railroad company regardless of the •contract between them, holding each as primarily responsible, and ■that when the city is muletea it has the right to recover against the railroad company in the same action, if both are defendants and the [333]*333city has properly brought in the railroad company by a call in warranty, or a distinct suit.
It is likewise firmly established that an injured party in order to recover must be shown not to have been guilty of any contributory negligence, that is, the careless commission or omission of acts which, if prudently done or not done, would have avoided the occurrence of the injury occasioned by the heedlessness of another and which is considered as the proximate cause of the accident.
The evidence in this case establishes the stubborn facts of the existence of the hole, of the loose rail and protruding spike on the side, the fall of the man, the fracture of his skull on the ráil and spikes and his consequent destruction and death.
Certainly, there are three parties to this accident who may be. charged with negligence.
As against the driver, it is claimed that the hole was visible, as it was foux- feet long, two feet deep and four inches wide, and it was about 3 o’clock p. m. when the wheel of his wagon got into it; that he must have seen it and should have seen it; that if he did not see it, it was because he did not do his duty in looking forward; that if he saw it he should have avoided it by stopping in time and taking a different course; that if he did not see it it was his own fault; that he was guilty of contributory negligence, and that his representatives have no right to complain and seek indemnity through him.
As against the city, it is urged that it was bound to keep its streets, in good order and condition; that had it done so the hole would never have existed, or would have been stopped in time and the accident would not have happened; that its defence of penury is bad and that its contract with the railroad company did not exonerate it from the obligation.
As against the railroad company, it is pressed that it was bound to keep in like good order and condition the streets through which it ran its tracks and cars, whether under the contract, or independent of any agreement to that end; that surely it was bound to keep its tracks, rails, and spikes, designed to fasten the same down, so that no injury could be produced thereby to any traveller on the streets, although using the same with more or less usual inattention, and that if the condition of the loose rail and protruding spikes be the proximate cause of the death, it is liable in damages.
It can not be reasonably supposed that the driver knew of the con[334]*334dition of the hole, saw it and intentionally ran the fore right wheel of his wagon into it. The size and appearance of the hole were not such as unnecessarily and unavoidably must have provoked attention. The hole-was such as anyone driving on the track may not have noticed. The deceased had a'right t.o drive on the track. The right of way, or franchise, conceded by the city to the railroad company, did not deprive the deceased, or anyone else, running vehicles on the street, from the right of using any part of the street, or the track itself. There was no trespass.
But even if the driver had seen the hole and had not avoided it nothing shows that he knew of its dangerous character. Could he be really charged with negligence, it would not be with that sort of negligence technically known as contributory, which is the commission or! omission by the party of an act amounting to a want of ordinary care as concurring or cooperating with the negligent act of another and which is the proximate cause or occasion of the injury complained of. To constitute contributory negligence there must be a want of ordinary care and a proximate connection between that and the injury. Beach on Const. Neg. 7.
No doubt the city was in default. The hole had been in the condition known for more than two weeks. Accidents had occurred, but which had produced no grave injury worth being judicially complained of. The city must be considered as having had notice of the condition of the hole and it is no excuse for it to plead penury, or shift the responsibility on the railroad company so as to avoid liability. The city should have notified the company; but primarily, it was bound to put the hole in a condition not to be dangerous. It should be blamed for not having so done.
Nevertheless, the heedlessness of the city in the premises, however censurable, does not fasten upon it the responsibility in damages sought to be saddled upon it.
The falling of the right fore wheel of the wagon into the hole caused a shock; that shock dashed the driver from the vehicle and he was flung with some violence. The evidence shows that several other travellers on the street and on the track had met with similar accident, had been thrown from their carts on the pavement, but none were killed or dangerously hurt. The unfortunate fellows were more or less bruised and that was all, although much in itself to some extent.
[335]*335In the present instance the driver would have sustained no further injury had it not been that a condition of things existed at the time which did not exist previously, when the other accidents occurred. The city is not sued now for the suffering which the driver sustained in consequence of bruises inflicted by the fall. It is sued for damage suffered in consequence of the death of the driver, and the fact is that the city is not guilty of any negligence which was the proximate or direct cause of that catastrophy.
The responsibility must rest on other shoulders. The defences announced of the railroad company have no bottom to stand upon. Conceding all the facts averred, which would seem to tend to show a condition of things amounting somewhat to vis major or uncontrollable circumstances, the railroad company can not be heard to say that they were of such a character as to prevent it from stopping the hole and preventing it from being dangerous, from nailing down securely the loose rail and fastening steadily the protruding spikes. The plaintiff could sue independent of any contract between the city and the company.
Though true it be, that the hole was somewhat dangerous and was the cause of the shock which occasioned the fall, the certainty is, that but for the loose rail and protruding spikes the traveller would not have met with an untimely and sudden death. He would have fallen, would have received some bruises, for indemnifying which he would not probably have sued either the city or the company; but he would not have been hilled!
The cause, eausa causans, of the death was the violent coming in contact of the skull of the deceased with the loose rail and the protruding spikes, in consequence of which the skull was fractured, or perforated, with almost instantaneous death as the result.
If, under the facts and the law, this railroad company can not be held responsible, but must be excuse 3, what is the case in which a company can be held liable for omissions of duty which are the direct cause of irreparable calamity?
In the consideration of this case and the law and jurisprudence applicable to it, we have consulted with advantage a new work, just issued, on “Roads and Streets,” by Elliott, which is quite commendable.
It is very difficult to compute the damages to which the plaintiff, [336]*336in her own right and as tutrix, is entitled for the loss sustained by the death of the husband and father.
When she opened his estate she produced the certificate of the coroner to prove.the death, and she established from it that he was 62 years of age.
It is claimed that according to' the life insurance time tables he would probably have lived twelve years more, and it is insisted that his earnings during that time would have amounted to a considerable sum, and that this amount at least should be recovered in this action.
It may be, and it may not be, that the party would have lived that time. He might have died the next day, the next month, the next year, by disease, or some accident, or some other unforeseen cause.
His earnings were small. The evidence in that respect is entirely unsatisfactory and unreasonable. The fact is that he was a wagon driver doing jobs; but he had to provide for a stable and shed for his horse and wagon, for feed for the animal; he had to supply his own wants. If he earned $1.50 or $2 a day he could have saved very little to provide for his wife and daughter, who it is to be presumed, owing to their age and condition in life, must have been able to support themselves to some extent.
It is extremely doubtful that the earnings of the poor man could have amounted in the end to $1000, but to avoid doing his representatives any injury, we will allow that sum, thinking it ample.
It is therefore ordered and decreed that the verdict of the jury and the judgment thereon as regards the Oity of New Orleans be quashed and reversed, and that there be judgment in favor of the city, with costs in both courts; and it is further ordered and adjudged that the verdict' and judgment thereon against the railroad company be amended so as to reduce the amount to $1000, with interest as allowed and costs below, and that thus amended, said judgment be affirmed at appellee’s costs.