McDonald v. Southwestern Gas & Electric Co.

146 So. 341, 1933 La. App. LEXIS 109

• Court: Louisiana Court of Appeal
• Decided: March 6, 1933
• Docket: No. 4074.
• Status: Published

Opinion

TALIAFERRO, Judge.

The pleadings and facts of this case are fully set forth in our original opinion reported in 136 So. 169. A rehearing was granted by us to the defendant, Southwestern Gas & Electric Company, but denied to its codefend-ant, Shreveport Railways Company. This defendant applied to the Supreme Court for writ of certiorari or review of our decree affirming the verdict of the jury and the judgment of the lower court, holding it liable in damages for the death of the minor son of plaintiffs. The Supreme Court granted the application for the writ and ordered the ease up for its review.

That court reversed the judgment of this court and absolved the Shreveport Railways Company from any liability to plaintiffs. While the court only had before it primarily the case of the Shreveport Railways Company, yet, in passing on the involved questions presented by its defense, it necessarily, impliedly at’ least, passed on the question of the Southwestern Gas & Electric Company’s responsibility. It was held by the court (174 La. 1023, 142 So. 252) that the tower with attachments for distribution of electricity, erected and operated by defendants on land of the railway company, inclosed by seven-foot fence, was not an attractive nuisance. The case turned on this point.

Under the facts of the case, if the railways company cannot be held liable, of course it is obvious the electric company cannot be held.

For the reasons herein assigned, and assigned by the Supreme Court in its opinion on application of Shreveport Railways Company for writ of review, reported in 174 La. 1023, 142 So. 252, our former judgment against the Southwestern Gas & Electric Company is annulled and set aside, and the judgment of the lower court in its favor is affirmed.

MILLS, J., recused.