Smith v. City of Baton Rouge

119 So. 98, 9 La. App. 19, 1927 La. App. LEXIS 675

• Court: Louisiana Court of Appeal
• Decided: December 6, 1927
• Docket: No. 187
• Status: Published

Opinions

MOUTON, J.

The Baton Rouge Water Works Company as assignee, is under contract to supply the City of Baton Rouge, the other defendant, with water; and, for that purpose, is authorized under the contract to take up mains and pipes in the streets of the city. A child of plaintiffs, Mr. and Mrs. Smith, two years and six months old at the time, was drowned in a cut or excavation which had been made by the Baton Rouge Water Works Company in Julia Street of said city for the purpose of repairing a leaking valve in the main of the company’s • water pipe.

This excavation was approximately four feet, five inches in width, eight feet in length and had an average depth of about three feet. The clay and gravel taken out of the excavation was piled around it at the height of approximately two feet and which w“as evidently intended as a barricade or protection. The excavation was dug out on the 18th of May, 1926, and was closed on June 3, 1926, by boards thrown over it. The child was drowned on May 31, 1926, between the hours of five-thirty and six in the afternoon.

The City and water works company are sued by the parents of the child in damages for the gross amount of $42,000. Judgment was rendered against the water works company for $5,000, and the suit was dismissed as to the City against which the claim is not pressed in this Court. The Baton Rouge Water Works Company-appeals.

The grounds of defense of the Baton Rouge Water Works are that it has not been guilty of negligence in connection with the excavation; » if negligent, the plaintiffs, the child’s parents, were guilty of negligence which contributed to the child’s death. It also pleads, if negligent, it was not so towards the child, and, therefore, it was not the cause of his death.

It may be appropriate to state at the outset that this child of two years and six months when it lost its life, was then incapable of contributory negligence. State vs. Waggner, 42 La. Ann. 63, 8 So. 209; Palermo vs. Orleans Ice Mfg. Co., 130 La. Ann. 833, 58 So. 589, 140 L. R. A. (N. S.) 671.

The house of the plaintiffs is north of Julia Street; the excavation was a few feet from the curbing on the south side of that street, and was about forty or forty-five feet from the home of the plaintiffs.

The proof is that in the afternoon of this deplorable accident, Mrs. Smith, after bathing and dressing this little child, took him to the front porch of her-home where she left for a few minutes while she went to the kitchen to put some grits on the stove. The child was given a nickel and was left on the porch to wait for the ice cream vendor to buy an ice cream cone from the ice cream itinerant vendor, as he had done before. The father, Mr. Smith, had left for the meat market a short distance away to make a purchase before Mrs. Smith had placed the child on the front gallery. Leaving the child on the porch was certainly not negligence on the part of Mrs. Smith, as a parent is not negligent in permitting his child four years of age to be on the sidewalk adjoining his residence. St. Charles Municipal Drainage Dist. vs. Cousin, 130 La. Ann. 333, 57 So. 992; Westerfield vs. Lewis Bros., 43 La. Ann. 63, 9 So. 52.

Defendant company contends that Mrs. Smith was absent from the child about ten or twenty minutes, the plaintiffs contend that she was not away from him over five or six minutes.

In the case of Fox vs. Texas Oakland Consolidated Street Railway Company, 118 Cal. 55, 50 Pacific Reporter, p. 25, 62 Am. St. Rep. 216, a child four and one-half years of age was killed on Franklin Street by a car of defendant railway company. The father was away from home at the time, one of the daughters who lived with her parents was attending school, and the other was engaged in washing clothes with her mother on the back porch of the house. The child was obedient, as was the case here, and had been admonished not to go on Franklin, the forbidden street, and, had so been advised about 16 or 20 minutes before the accident. The Court held that the conduct of the mother did not constitute negligence per se. Here, the child had been placed on the gallery where it usually waited for the ice cream man to buy the cream cones. The father was away as in the case above cited, and so were two daughters, and a brother. It was shown that the child never left home alone,; and, that although the parents knew of the existence of the excavation they had never given it a thought or considered it as a danger spot to children. Even if Mrs. Smith remained twenty minutes before returning to the porch where she had left her child, who, the evidence shows, was drowned during her absence, she was not guilty of negligence, nor was her husband because of his being away on an errand at the meat market. See also Sundmaker vs. Y. & M. V. R. R. Co., 106 La. 111, 30 So. 285, where the principle therein recognized is in line with the ruling of the Court in the California case above cited. Counsel for plaintiffs say that the excavation where the water was at an average depth of three feet was dangerous and treacherous to children, who, in pursuit of their childish instincts would be naturally attracted to it. They assimilate this case to the one reported in Westerfield vs. Lewis Bros., 43 La. Ann. 63, 9 So. 52. In that case, it appears, that the defendants were leveling Coliseum Stret in New Orleans with heavy iron rollers to which two mules were attached; that one was left unattached, and the mules not hitched so as to ¡prevent them from moving off with the roller. Richard, a boy of the plaintiffs, aged five years seven months, escaped from his home, got on the rollers,- started the mules, was thrown and killed. It is apparent that the leaving of such heavy iron rollers attached to unhitched mules was a dangerous machine that would attract the instinctive curiosity of children with the probability of fatal results, which would suggest themselves to any person of ordinary prudence. This is not exactly the situation here. The fact is that the plaintiffs saw when the excavation was being dug out, saw it after it was made, and never thought for an instant that any danger lurked there for their child or for anyone else; also, that in the vicinity no one entertained any apprehension of danger from this pool of water. No complaint, the record shows, was ever made by plaintiffs, their neighbors or anyone else, about this excavation, to the water works company or the City of Baton Rouge, during the period it was there from May 18th to May 31st, when the child ' was drowned. It is obvious from the foregoing facts that plaintiffs and the people in their vicinity had not the least apprehension that a misfortune of the kind complained of would be likely. to occur. It is but fair to say that defendant company must be considered as having likewise been equally unapprehensive. As a matter of fact the proof is that defendant had been making excavations of that character in the streets of the city for many years, and which had always been barricaded or protected in the way the one in question was. It also appears that during that long period of time, prior to the accident in question, not a single complaint was made to the company or to the city (which followed the same method of barricading) by any citizen of the city in reference to these excavations. It is also shown that not a single accident occurred to any child of the city or to anyone else from such excavations up to the time of the one under discussion. It was shown that when the dirt from the excavation is removed to some other place, and where the size of the hole makes it necessary, a plank is usually run, or a horse and rail. It is explained by Stewart, a contractor of long experience, that when a pool is barricaded in that fashion, there is nothing to keep a child or anyone else from getting into an excavation. The proof shows that this excavation when made was absolutely necessary to stop the leak in the main, to maintain the water service to the city, and sufficient pressure of water in the event of fire. It therefore appears clearly from the record that -the excavation was essential, and had been made and barricaded as had been customary with defendant company and the city for a long period of time, that is, during seventeen years; and, in addition thereto, it was proved that a like method was followed in similar work by other public utility corporations.

In the case of Loftus vs. Union Ferry Co., 84 N. Y. 455, 38 Am. Rep. 533, the parents sued defendant for the death of their child, aged six, on account of the insuffieiency of a guard on the side of a ferry boat through which the child fell into the water and was drowned. The boat had been in use for a (period of about six years prior to the accident, and was similar in construction to the other ferries of defendant. It was possible in that case for defendant to have constructed the guard on that boat, that such an accident could not have happened and which could have been done without much expense and trouble. This is precisely the argument advanced here by plaintiff as to the absolute security against accident which could have been provided for in the construction of the excavation, and at a trivial expense. If, says the Court in that case, “the defendant ought to have foreseen that such an accident might happen, or if such an accident could reasonably have been anticipated, the omission to provide against it would be actionable negligence. But the facts rebut any inference of negligence on this ground. The company had the experience of years, certifying to the sufficiency of the guards.” Likewise, it can be said here, that the company had the experience of years, certifying to the sufficiency of the barricade. The Court in the case cited, then proceeds to say: “that it was possible for a child or even a man to get through the opening was apparent enough. But that this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty.” Here, we cannot refer to multitudes or millions because the character of the case could not present such a situation, but the proof shows that from one, two or three excavations were dug weekly in various parts of said city, and for some seventeen years prior thereto, though as many a week during that period of time does not appear. If such pools were attractive to children, or were dangerous or treacherous as is contended for by counsel for plaintiffs, it is indeed passing strange that not a single casualty of the character at issue ever occurred; and, still more singular is it, that not a single complaint was ever lodged with either the water works company or the City in reference to ' the danger of such excavations. Finally, the Court says the following, and which embodies the crux of the ruling, to-wit:

“We think the exemption of the defendant in this case rests upon the fact which, we think, clearly appears as an inference from the other facts, that the company had no reason to apprehend an accident like this, and that the arrangements made were such as experience had up to that time shown to be safe and suitable, and sufficient to meet the requirements of its duty. This doctrine applies with peculiar force to the facts of this case which show that the arrangements made by defendant company had proved sufficient to meet the requirements of its duty.”

The principle above outlined was in a nebulous way recognized by our Court in Lopez vs. Sahuque, 114 La. 1004, 38 So. 810, where it said that the existence of a fact “without injury for a long time, with factors constantly present calculated to produce injury if really dangerous from those factors, would go far to do away with the anticipation of resulting injury.” It is but fair to say here that the existence of these excavations in the City of Baton Rouge during a period of over fifteen years without any injury having resulted to anyone, and without even a single complaint or protest as to their dangerous or treacherous character being urged should go far “in doing away with the anticipation of resulting injury” on the part of defendant company. N. O. & N. E. R. Co. vs. McEwen & Murray, Ltd., 49 La. 1184, 22 So. 675, 38 L. R. A. 134, we find a more formal and positive expression of the principle under discussion in the syllabus, which is as follows:

“A mere failure to guard against a certain result is not actionable negligence unless, under all the circumstances, it might have been reasonably foreseen by a man of ordinary intelligence.”

This doctrine resting on facts, constantly present, calculated to produce injury, but without causing any, should go far as was said in Lopez vs. Sahuque, 114 La. 1004, 38 So. 810, above cited, to “do away with the anticipation of resulting injury.” It must also be observed in connection with the above principle, as was said in that decision that:

“Responsibility for injuries to children is broader when the result is from acts of commission than when they are the result of acts of omission, leading up to unexpected, unanticipated consequences. In the light reflected from the facts of this case which we have hereinabove stated in substance; if defendant company is really chargeable with the acts of omission of which plaintiffs’ counsel complain, they certainly led up to and resulted in unexpected, unanticipated consequences.”

Counsel for plaintiffs refer to the case of Palermo vs. Orleans Ice Mfg. Co., 130 La. 833, 58 So. 589, 40 L. R. A. (N. S.) 671, in which it appeared that a child of four years had fallen in a ditch containing hot water which was flowing from the plant of the defendant in that case. It was clearly shown in the case that the defendant was entirely aware of the danger that might befall children from the hot water which was running in that ditch, a's it had placed a watchman to warn them of the danger and who deserted his post. Unquestionably, the casualty which resulted to the child had been anticipated and foreseen.- There is no evidence of that character in this case. If defendant company herein, had placed a guard around the excavation in question to warn children of any danger, it is obvious that defendant would be chargeable with having foreseen and anticipated what happened, and the principle we are invoking could not possibly have any application. Admitting as true what plaintiffs’ counsel are contending for, that the proof shows children were attracted by the water in the excavation, still, it is undeniable from the facts of the case, that from the long period during which these excavations had been made without the occurrence of a single mishap, or complaint of any character, that in justice to defendant, it must be said, as was aptly said in the case of Loftus vs. Union Ferry, 84 N. Y. 465, 25 Cal. Am. Rep. 533, 38 Am. Rep. 533, as follows:

“We think that the exemption of defendant in this case rests upon the fact which we think clearly appears as an inference from the other facts, that the company had no reason to apprehend an accident like this, and that the arrangements made were such as experience had up to that time shown to be safe and suitable, and sufficient to meet the requirements of its duty.”

The proof shows that boards were placed over the excavation immediately after the accident. Counsel for plaintiffs refer to this fact as proof that defendant had been negligent in only raising a barricade of dirt around the pool. W. P. Connell, president of the company, testified that prior to the accident it was never the intention of the company to protect the hole against children going into it. It was thought, he said, to protect it against traffic accidents. When this tragedy occurred, he testified he wanted to make it impossible for accidents of that kind to be repeated. In Biegel vs. City of N. O., 143 La. 1077, 79 So. 867, the Court said:

“Municipal corporations cannot foresee or guard against all dangers incident to the rashness of children, and are not the insurers of the lives or safety of children.”

The defendant company was not required to so guard the pool in question as to make all accidents impossible. If boards were placed over such excavations, it is doubtful, as appears from the evidence, if a danger could not have been created as to traffic by autos and other vehicles over the streets of Baton Rouge, thus showing the difficulty of making arrangements which would protect all the individuals of the city.

In conclusion it may be proper to remark the case must be determined on the conditions which existed at the time of the accident in the light of the facts, circumstances and experience which had influenced the conduct of the defendant when the excavation was made. It is under such a test that the issue of negligence or no negligence must be solved. The criterion is not as to the possibilities of danger which were disclosed by the accident but which could not have been reasonably foreseen, expected or anticipated wherein lies the crux of the issue here presented. For the foregoing reasons we are constrained to reserve the judgment, which is therefore avoided and reversed, and the demand of the plaintiffs is hereby rejected at their cost.