author: Blanchard, J.

text:
    No. 13,346.
    Succession of Amelia Cormier.
    Syllabus.
    1. where property, which must be held to have been the separate property of the husband, was carried by him into the community formed by the marriage, became merged into it, and enured to its benefit, its value becomes an indebtedness due the husband by the community.
    2. No fixed rule or standard as to the extent or sufficiency of evidence necessary to establish a claim of that character can be formulated. Each case must rest on its own peculiar state of facts.
    ii. The prescriptions which would otherwise bar such a claim are suspended as against the husband during the time he fills the positions of tutor to the children of the marriage and administrator of the deceased wife’s succession.
    4. There is no reason why the father, who is both tutor of the children and administrator of their mother’s succession, should not account in his settlement of the mother’s succession to her heirs of age for moneys received by him from their grand-father as their inheritance by right of representation of their mother.
    A PPEAL from the Twelfth Judicial District, Parish of Calcasieu— Bead, J.

      Pujo & Moss for J. Y. Moss, Sr., as Administrator and Personally, Appellant.

      George II. Wells for Oliver H. Floss et als., Opponents, Appellants.

      Winston Overton and E. L. Wells for Mrs. D. H. Lyons, Opponent, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Jane Coward, the first wife of J. Y. Moss, Sr., died on September 6, 1854, leaving four children of the marriage, one of-whom, however, died early. Those who survived as her heirs are: E. Lavinia Moss (now the wife of D. IT. Lyons), Amelia Moss and J. Y. Moss, Jr.

Amelia Oormier, the second wife of J. Y. Moss, Sr., whom he had married in April, 1856, died in April, 1874, leaving nine children of the marriage and heirs of her estate. They are as follows: Clara 0. Moss (who married Solomon West, and who is now deceased, leaving-two children and heirs), Erastus C. Moss, Cornelius Johnson Moss, Oliver II. Moss, Emma Josephine Moss (now wife of Bujard), Annie Rosa Moss, Richmond L. Moss, Arthur II. Moss and Susan Augusta Moss.

The community of acquets and gains existed in both these marriages, and in this litigation are involved the always difficult and intricate questions of the settlement of conflicting community claims, and of succession rights, and those asserted by the surviving spouse, and by heirs forming- two sets of children, of common origin on the father’s side, and of diverse origin on the mother’s.

When Moss married Miss Coward his means were exceedingly limited, and beyond a few hundred dollars in money and property, later realized from her mother’s succession, she brought him nothing.

After some years he settled upon a piece of vacant public land (about eighty acres) in proximity to the then village of Lake Charles, erected a small house upon it and lived there with his family. Here were passed the last years of Jane Coward and here she died. The husband and children continued to reside there, and when in <1856 he married Amelia Cormier she was brought to this house, which continued to be the home of the family thus -reorganized.

The evident intention of Moss, when he settled upon this land near Lake Charles, was to enter or purchase it from the U. S. Government as soon as he could, and, accordingly, in 1860, about four years after his marriage to Miss Cormier, he did so purchase it.

This property thus fell into the community of the second marriage, though the actual settlement- upon it was during' the lifetime of the first wife.

'When Moss acquired title to this small tract of land it had no value beyond a few hundred dollars. But time passed and with it the old order of things gave place to the new; -a great development of that section of .the State began; Lake Charles, the county seat of Calca-sieu Parish, from, a hamlet assumed the proportions of a city, absorbing within its municipal limits the land upon which Moss lived; and, finally, when in 1893 its sale at public auction, provoked to pay debts and for purposes of partition, took place, the tract, laid off into squares, blocks, lots and streets, realized the large sum of $33,236.

The one-half of this fortune pertained to the husband; the other half to the heirs of the second wife. It seems the irony of fate that the heirs of the first wife have, as such, no share therein.

Between the date of the marriage of Moss witfi. his first wife and her death, the community between them acquired but little property. After her death, but not until some months after his second marriage, he caused an inventory to be taken and applied to be recognized as natural tutor of his children, the issue of the marriage. This' inventory showed property, all community, of an aggregate value o-.f $1361.27. It included one slave — a negro woman — appraised at $400. It also included the improvements erected upon the tract of public land near Lake Charles, where the family lived, and the value of the same was put down at $400. No action seems to have been taken on the application for appointment as natural tutor.

In 1877, three years after the death of his .second wife, Moss applied for confirmation as natural tutor of the children of the second marriage, and was confirmed and qualified as such.

In 1888 he applied to be appointed administrator of the succession of the second wife, Amelia Cormier, and caused an inventory of the effects thereof to be taken. The appraisement showed property to the value of $3671.28. He seems to have proceeded no further in the matter at that time, and nothing was done until January, 1893, when he applied again for the administration, and another inventory was taken, showing property valued at $8225. He was, under this second application, appointed administrator and qualified as such.

He at once ax^plied for authority to sell the property in order to pay debts of the succession, effect a partition and settle the estate and the community.

Two of the children of the second marriage were still minors. A family meeeting- in their interest was convoked, and a sale of all 'the property was recommended. This sale took place, and then it was that there was realized the aforementioned large price of $83,286. This was in Márch, 1893.

In 1898 three of the sons of the second marriage obtained an order against the administrator to file an account.

No account and no tableau of debts had hitherto been presented by him.

The order directed an account and a tableau of debts and charges and a provisional tableau of distribution to be filed.

I-Ie straightway complied with this order, and a little later presented a second supplemental account and tableau.

From the oppositions filed to these accounts and tableaux, this litigation arose.

On the account thus' presented, appears the following, under the head of “Ordinary Debts:” “Amount due the community existing between Jane Coward, deceased, and J. Y. Moss, Sr., one-half of which belonged to her heirs (naming them) and the other half to J. Y. Moss, Sr., as shown by inventory on file in the Succession of Jane Coward, less a slave mentioned, the value of which has been deducted $961.63.”

“Interest thereon since date of dissolution of second community, April 1, 1874, at 5 per cent. — 24 years, 5 months and 20 days.1175.86.”

These two amounts aggregate.$2137.49

The administrator contends that the property of the first community, for the value of which this charge is made, was on hand at the beginning of the second community, went into the second community and was used for and enured to its benefit.

This claim on behalf of the first community is resisted by six of the nine children of the second marriage, who oppose its allowance.

It is resisted both on the facts and the law, and as against it the prescriptions of four, five, ten, fifteen, twenty and thirty years are pleaded.

The pleas of prescription were overruled, but the opposition to the allowance of the claim was maintained, and the items thereof, aggregating the aforesaid $2131.49, were ordered stricken from the account.

The account and tableau of the administrator were opposed in other particulars, which will be adverted to later on.

The judgment below amended the account and tableau, and as thus amended homologated the same.

Orders of appeal were taken by all the opponents as well as by J. V. Moss, Sr., both as administrator and individually.

Of. the property inventoried in the Succession of Jane Coward, all of it was movable in character, except the slave valued at $400, and an interest in land valued at $15. We have already seen it was all community property. It, therefore, belonged — one-half to J. V. Moss, Sr., the other half to his children of the first marriage, as heirs of their mother.

It does not appear that the community owed any debts which were paid out of the property.

The inventory shows tire property to have been of the character to be imediately available for the use of the second community, which began with the marriage of Moss to Amelia Cormier.

As surviving parent, Moss was entitled, under the law, to the usu-fruct of his children’s share in the community property of the first-marriage. But this right of usufruct ceased when he entered into the second marriage.

Act 162 of 1844.

The situation, then, of Moss at this time was this: — Without having caused himself to be appointed and qualified as tutor of his children of the first marriage, and having lost the usufruct of their interest in the community by reason of his second marriage, he, nevertheless, remained in possession of the same and converted it to’ his own use. From that moment he became indebted to his children of the first marriage for the value of their share of the community property and owes, tire same to them now, with legal -interest front the time when his usu-fruct ceased, which was the date of his second marriage, less whatever amounts, if any, he may have paid them, respectively, on account of their inheritance.

We do not understand that he disputes his indebtedness to them, or claims that the samo is bar-red by prescription. On the contrary, his pleadings in the instant case, both in the court below and in this court, are such as to virtually admit liability and to take the ease out of prescription even if prescription were applicable.

But the Succession of Amelia Cormier; the second wife, is not the place where inquiry as to the husband’s indebtedness to the children of the first marriage may be properly gone into, or settlement reached. Their rights in this particular are reserved to them, to be enforced, if need be, in proper proceedings taken against him. ■

Having thus possessed himself of the share of the community prop-1 erty of the first marriage belonging to his children of that marriage, what did Moss do with the same and with the share of the property belonging- to him of right as surviving husband in community ? If he carried it into the second community; if it was appropriated b'y the second community, .if it became merged into it, then its value became an indebtedness dué him by the second* community.

A review of the evidence found in the record and of all the circumstances connected with the ease, and a consideration of the situation and environment of the parties at the beginning of the second community, produce the conviction that all this property went to enrich the second community; was' appropriated by the second community and enured to its benéfit. ■

This being- so, the community which existed between J. Y. Moss, Sr., and Amelia Cormier — not the succession of the latter — owes its value to the husband.

Succession of Foreman, 36 La. Ann. 700; Succession of Breaux; 38th Ann. 728; Succession of Kidd, 51st La. Ann. 1151; Denegre vs. Denegre, 30 La. Ann. 215.

In dealing with questions relating to the liability of a conjugal community to the separate estate of the husband or wife for separate funds of his or of hers, as the case may be, alleged to have enured to the benefit of such community, this court has found it necessary to say that no fixed rule or standard as to the extent or sufficiency of evidence necessary to establish such claims can be formulated, and that each case must rest on its own peculiar state of facts; that there must be taken' into consideration all the surroundings and circumstances applicable to a given case to ascertain whether it can be reasonably said that the situation of the community, proposed to be held liable, could or would, at the time of the husband^s or wife’s death, have been found as it was, in the absence of having been assisted by the property or funds for the value or return of which the claim is made.

Succession of Kidd, 51 La. Ann. 1169.

This rule we apply to the ease in hand, with the result that the conclusion is reached the claim of the husband against the second community for $961.63 .of the property shown in the inventory taken in the Succession of Jane Coward, the first-wife, is made out with reasonable and legal sufficiency.

The record discloses that when Moss, Sr..-, wedded Amelia Cormier in 1856 the only property then brought into the marriage was by the husband, .and, that consisted entirely of the assets of the first community, as shown by the inventory taken just following the second marriage. Moss, himself, testifies that this property was used, consumed, expended, or otherwise enured to the benefit of the second community, and, with the exception of the - fifteen dollar interest in land and the slave, the property was of that character which rendered its use practically unavailing if not consumed and expended, or the substance thereof changed in the use. C.-O. 534, 536.

Those interested in the second community are, certainly, in no position to dispute that Moss, Sr., was, at the beginning of that community, the. owner, quoad the second community, of the property of the first community. And the second community was entitled to the enjoyment of all the property and effects belonging to the husband at the time of the second marriage.

Depas vs. Riez, 2 La. Ann. 31.

But when the time com.es for the settlement of the community affairs, the husband is entitled to claim as a debt due him the value of the separate property .he brought into the community and which was used for the benefit of the same and expended and consumed in its use. . .

And that is this case.

The community, between Moss, Sr., and his second wife was properly the subject of settlement in the succession of the second wife, where all the community property had been inventoried and sold, and where its proceeds are the subject of distribution.

Before this .distribution can take place, there must be deducted from the sum total of the proceeds the community debts, including the debt due the husband as above.

While Moss, the father, owes to his children of the first marriage the value of the movable property of theirs converted by him to his own use, with interest from the time his usufruct thereof ceased, he has claimed against the second community, on the value of the separate property he brought into it, legal interest only from the dissolution of the second community, which was the date of the death of the second wife, April 1,1874. He will be held to this. No opinion is expressed as to whether he might or might not be, in law, entitled to interest from an earlier date.

None of the prescriptions urged are applicable as against the indebtedness due him by the second community.

When the second wife died, Moss owned in his own right, subject of course to payment of community debts, one-half of the property pertaining to the community, and became the usufructuary of the other half owned, by the children and heirs of the second wife.

This community has continued unsettled to the present time, the surviving husband and father remaining in possession of the property. He qualified as tutor of the children of the second marriage and be-, came administrator of the second wife’s succession.

Under these circumstances, prescription was suspended.

Morris vs. Cain, 39th La. Ann. 722; Succession of Farmer, 32nd La. Ann. 1037; Goux vs. Moncla, 30th La. Ann. 743.

Lavinia Moss (now the wife of D. II. Lyons), one of.the children of the first marriage, opposed the account of the administrator. Her opposition was in part sustained. She, nevertheless, took an order of appeal, but has not perfected her appeal by filing the bond required.

In this court, however, she has filed an answer and motion to amend the judgment.

Her opposition must, in view of the position herein taken with reference to the legal rights of the children of the first marriage, be dismissed.

One of the grounds of the opposition of Oliver H. Moss and certain of the other heirs of Amelia Cormier to the administrator’s account was that he had not accounted for a sum of money (some $544.55) which it was alleged he had collected from the succession of Alexander Cormier, Sr., being the inheritance of his nine children of the second marriage by right of representation of their deceased mother, Amelia Cormier.

TMs ground of opposition was disposed of in the judgment appealed from by a reservation to opponents of their rights in this regard against their father, J. Y. Moss, Sr.

Complaint is made of this' here and it is asked that the judgment be corrected by ordering the administrator to áccount to the heirs for moneys received from their said grandfather on behalf of their mother.

There is no reason why the father,' who is both tutor of the children and administrator of their mother’s succession, should'not account in this proceeding — being his account as administrator — to her heirs for this money received by him as their inheritance by right of representation of their mother. It can be settled herein and should be settled herein. A multiplicity of suits is to be avoided.

It is considered that the interests of justice require this case should he remanded.

For the reasons assigned, it is ordered that the judgment appealed from be avoided and set aside; that the opposition of Lavinia Moss be dismissed at her costs; that this cause be remanded for readjustment and restatement of the administrator’s account in accordance with the views of this opinion, and for further proceedings according to law''; and that in a supplemental account to .be presented J. Y. Moss, Sr., do account for and séttlé with the heirs of Amelia Cormier for all moneys and property collected or received by him from the succession of Alexander Cormier, Sr., for them on their mother’s behalf, whether received by him individually, or as tutor, or administrator.

It is further ordered, etc., that the costs of this appeal and those of the lower court, other than the ciosts accruing on the opposition of Lavinia Moss, be paid out of the funds pertaining to the community which existed between J. Y. Moss, Sr., and Amelia Cormier.


source: Caselaw Access Project

author: Nici-iolls, C. J.

license: Public Domain

text:
    No. 13,030.
    Frederick Tatje vs. John J. Frawley.
    Syllabus.
    Though a contractor, -who had contracted with the city of New Orleans to cover with iron plates the open gutter running along the uptown sidewalk of Gravier street from Carondelet street to the edge of the bridge crossing that gutter from one side of Baronne street to the other, should have placed a red light at the edge of his only partially completed work at the corner of the streets, to show that there was still an open gutter space on the extension of the line of plates, he is not legally liable to an old resident of the city who falls Into this open space when running at night along this line of plates with his eyes fixed upon a car approaching on Baronne street instead of looking out for the open gutter spaces, which, from his familiarity with the usual situation at the corners of intersecting streets, he should have expected to find, and must have anticipated finding there.
    If he thought he was walking upon the sidewalk as argued, he must have expected to find either an open gutter directly in his path, and in front of him, or an open space somewhere upon his right.
    Contributory negligence bars recovery.
    APPEAL from the Civil District Court, Parish of Orleans — King J.

      Theodore G. Spiizfaden and Armond E. Blachmar for Plaintiff, Appellant.

      Bernard McCloshey for Defendant, Appellee.
   Statement of the Case.

The opinion of the court was delivered by

Nici-iolls, C. J.

Plaintiff in this suit prayed for a judgment in his favor for five thousand dollars, against the defendant.

The demand was based upon the allegations that on June 18, 1894, defendant, Frawley, entered into a contract, with the city of New Orleans, for the rearrangement of the pavements on Gravier street, between Carondelet and Baronne streets, in said city; that under said contract, Frawley was to place iron covers over the gutters on said Gravier street, from Carondelet to Baronne streets, and also agreed to comply with all police and health regulations and ordinances, . and especially as to placing all necessary lights, etc.; that on the 24th of September, 1894, Frawley had completed putting said iron covers on the gutter on the south side of Gravier street, except a small space of about three or four feet, between the edge of the iron covers, already laid, and the edge of Baronne street; that on said date, September 24, 1894, about half past ten o’clock P. M., petitioner reached the corner of Gravier and Carondelet streets, and walked out said Gravier street, towards Baronne street, on the iron covers, laid and placed by said Frawley, ■under his said contract; that he continued his walk until near the open space, referred to above, and without knowledge, notice, or warning, that the said gutter head had not been properly covered,' petitioner fell into said opening, striking his right leg violently, against the edge of the iron crossing, running, over Baronne. street, causing a compound'fracture of both bones; that said accident and injury were caused by the carelessness and negligence, of said Erawley, in leaving-said .opening, and failing to place proper lights, to warn and advise pedestrians, of the existence of said opening, and to disclose the dangerous condition of said sidewalk.

That, immediately after the accident, petitioner obtained medical and surgical attention; that he suffered intense pain, immediately on being hurt, and for weeks thereafter; — that the injury, which he had suffered, was painful and serious, and petitioner was advised, and believed, and feared, was permanent; that petitioner was before his injury, and was still engaged in the manufacture of cigars; that by reason of said injury, he had suffered great physical and mental pain, suffering, and anguish, and hád been thereby damaged, to the extent of five thousand dollars; that by reason of said accident and injury, petitioner was unable to attend to his business for more than three months; that at the time of said accident, petitioner’s business was on the verge of a prosperous season, and he had suffered in damages, from loss of business, and time, the further sum of five hundred dollars; that all of said damages, resulted directly, from defendant’s negligence, and carelessness, as aforesaid.

Deféndant answered.

After pleading the general issue, he answered, and admitted, that he had entered into, on June 18, 1894, a certain contract, with the city of New Orleans, for the rearrangement of the paving on Gravier street between Carondelet and Baronne streets, as would appear, from contract passed before J. D Taylor, Notary Public, June 18, 1894.

He averred, that if any damages at all resulted to plaintiff, the same were caused by' the negligence of said plaintiff, and defendant in no manner contributed thereto.

Judgment having gone against plaintiff, he appealed.

OPINION.

The evidence shows that about ten o’clock on the night of September 24, 1894, the plaintiff and a friend started to walk on Gravier street ±rom Uarondelet to Baronne street upon the sidewalk on the upper side of Gravier street.

Plaintiff’s friend walked on the inside next the line of houses, and plaintiff on the side next the street.

Just as the parties reached the end of the last house on Gravier street, a car was seen approaching' on its way up Baronne street which they desired to take to go to their respective homes. It was'so near the corner when seen that plaintiff’s companion suggested that they should run to stop it, and they both did so.

The former crossed safely over into Baronne street, but the plaintiff fell into an open space of about three or four feet between the edge of certain iron covers by which the gutters on Gravier street up to that point had been covered, and the edge of the crossing from the front or the river side of Baronne street to the rear or swamp side of that street.

He was severely injured by his fall. The iron plates which covered the Gravier street gutter from Oarondelet to Baronne street, up to the point where the plaintiff fell, were placed there by defendant in execution of a contract between him and the city of New Orleans, Had an additional plate been placed upon the gutter, the space into which plaintiff fell would have been closed' anct no accident would have happened.

Defendant contends that the space into which plaintiff fell was nothing more than the open gutter which had always been there and in that condition, that it was no part of his contract to close it, and that even if it were, he was not called upon or required under the circumstances to place a red light at night on the sidewalk upon or near the plate next to the opening, he not'having caused the open space to ■be there, just beyond his completed work.

The evidence shows, we think, that there was on the night in question no red light either at or near the open space, but if there was a red light or lamp burning, it was in the centre of Gravier street, itself, upon which work of some kind was then going on.

Plaintiff contends that defendant’s contract called for the closing of the gap in the Gravier street gutter between where he had closed the gutter by plates and the edge of the crossing over from one side of Baronne street to the other, and that it was his duty, when in the¡ execution of his contract, he reached (in covering the gutter) this point, and saw and knew that this space was open in the direct line of extension of the completed portion of his work, to have placed a red light or lamp at night upon the sidewalk at or near the open space, as was required to be done in the immediate vicinity of their work, in order to give warning of danger to passers by.

He contends that the closing of the open gutter from Oarondelet street to Baronne by plates was a new work, changing’ the old condition of things, to which the people of the city had grown accustomed, one which tended directly to lead and lull passers along the sidewalk into a sense of full security, that the whole space which had been formerly open had been dosed. That defendant was bound to know that this would be the result of leaving any portion of the gutter open, and the danger resulting from that fact should have been guarded against by danger warnings or signals.

Defendant meets this claim by insisting that plaintiff was bound to know from the usual condition of things upon the corners of streets in New Orleans, from time immemorial, he would find an open space between the foot crossings which extend from the sidewalks of the streets to the streets themselves, over the gutters running from the Mississippi river to the rear, and those running parallel to the river, as Baronne street does;- that plaintiff was bound to expect to find such an open space somewhere, and if he thought proper, when approaching at night the spot where such an open space might be expected to be usually found, to start running and fix his eyes upon an approaching car instead of looking for the customary opening, he was guilty of contributory negligence which would bar his action. He contends that there was a city electric light burning at the corner of Baronne and Gravier, at the time of the accident, giving sufficient light whether flickering or not, t6 have shown plaintiff the open space before him, had he exercised usual care or judgment.

The contract between the city and defendant is in the record.

The defendant being upon the stand as a witness, himself, was cross-examined by the plaintiff’s counsel as to whether or not he had before the day of the accident, done any work in and upon the portion of gutter between the point where the iron plates laid by him terminated, and the end of the bridge covering the gutter as it crossed Ba-ronne street. The space here referred to was the open space into which plaintiff fell, and which defendant contended was not covered by his contract. This space was afterwards covered by defendant by a plate, but be insisted that the contract under which this was done was a supplemental agreement made after the accident, under instructions from the City Engineer and to supply an omission on this very point under the original contract defendant had referred to it as extra work.

The following questions were asked and answers given:

“Q. — You did that extra work, did you, that you say was extra?

“A. — Yes, sir.

“Q. — Did you charge anything extra?

•'A. — Yes, sir.

“Q. — Wasn’t that because you were being paid by the pound for every plate you were laying there?

“A. — Well, perhaps it was.

“Q. — You did dig that gutter according to the plans and specification? You dug that gutter didn’t you?

“A. — 1 suppose so.

“Q. — This particular place that was open, you did some digging there and concreted the bottom as provided in this (the original) contract, didn’t you?

“A. — Maybe I did.

“Q. — Why did you think you were to do that part of the work and still deny that you were not required to cover it ? Why did you think you were required to do the other part of the work and not required to cover it ?

“A. — I don’t know, unless it was not provided for by the Engineer by the amount of plates we ordered, and we ordered the plates on his estimate.

“Q. — You mean you had not ordered plates enough ?

“A. — Oh, yes. He made the measurements and he ordered so many plates and we got the number that he specified.

“Q. — Well, the balance of the work as to this point where this man fell in, in so far as all this contract calls for, the digging of this gutter, the shaping of it, the filling of it in with concrete and all these things had been complied with by you at this point except putting the cover over it. Is that right ?

“A. — No; my recollection of it is, that we had not complied with everything except the plates.

“Q. — You had complied with every thing except the plates?

“A. — No, sir; we had not.

“Q. — You bad not?

“A. — No; that is my recollection of it.

“Q. — Did you dig- another gutter there, afterward? Did you alter or change anything’ there, after the man fell in?

“A. — Not that I recollect.

“Q. — You simply put the plate on it after you got it?

“A. — That is my recollection.

“Q. — At this point where he fell in, you don’t mean to say you changed the gutter at all from what it was before ?

“A. — Perhaps we did.

“Q. — Don’t you know you had to do it to make it conform to this plan?

“A. — I don’t know that we had. There might have been an offset that would avoid any change in the curbing. I suppose that is what you mean?

“Q.--Isn’t the bottom of that gutter concrete ?.

“A. — Yes, sir; I think.

“Q. — Didn’t you concrete it at that spot?

“A. — I think we did.

“Q. — Don’t you know you did?

“A. — It is four years ago and I could not recollect all these details. The foreman is here. lie will give his evidence.

“Q. — There wasn’t concrete before, at this point, was there?

“A. — No; there was an asphalt bottom or a concrete bottom.

“Q. — Didn’t you put the concrete there?

“A. — I don’t remember I did.

“Q — You mean to say that you think that gutter bottom at the point where this man fell is not concreted to-day?

“A. — I don’t say that it is not, I don’t say any such thing.” .

Ke-direct examination:

:‘Q. — Mr. Frawley, these cast iron plates, according to the contract, you were in doubt as to .what you would use, whether it was cast iron or steel?

“A. — Yes, sir.

<lQ. — And you were .to be paid so much a pound for the quantity that the 'Engineer ordered?

“A. — Yes, sir.

“Q —And you put it down under his instruction ?

“A. — Yes, sir.

“Q. — -Did you comply with- the instruction of -the Engineer under this contract in what he- ordered you to get ?

“A. — Yes,- sir.'

“Q. — Did you lay the plates down ?

“A. — Yes, sirwe did.

“Q. — In other words you obeyed the. instructions of the city of New Orleans about the quality and,quantity of the plates?

“A. — Yes, .sir.

. “Q. — You obeyed their instructions to that effect?

“A. — Yes ,sir.”

We gather from the evidence that the portion of the gutter where plaintiff fell in was in fact included in the work to he done under defendant’s contract, but that it remained in an incomplete state at the time of the accident, for the reason either that the City Engineer had made a mistake as to the number of plates required, and one or more new ones had to be sent for, or because matters were held in abeyance for the reason that the City Engineer had altered his mind as to the material and weight of the additional plate or plates under a reserved right to ultimately determine that matter, and his change, of opinion had necessitated new orders and delay.

These facts would be very pertinent and relevant in determining whether the defendant was of was not in default for not completing the work or covering the space with the selected plate, hut would have uo bearing upon the question whether the walk itself was or was not included in the contract, whether the Opening should have been temporarily closed by some other material or means, or whether a red light should have been placed at the edge of the completed work.

It has been held that the mere fact of a person’s running upon a sidewalk is not per se evidence of negligence on his part and that all the circumstances existing at the time of his doing so, have to be examined. (71 N. W., 863.)

We. have, therefore, in this case bo take into consideration all facts having a legitimate bearing upon the question of plaintiff’s having exercised or not exercised proper care and caution.

We have had several times before us actions wherein damages for injuries received upon sidewalks were claimed. Mahan vs. Everett, 50 Ann., 1167, and Shidet vs. Dreyfous Company, 50 Ann., 281, were cases of that character.

The evidence shows that the plaintiff was not familiar with the condition of affairs at the corner of Baronne street and Gravier street, on the night of the accident, or the prior situation and condition of that particular corner.

As a general rule there is an open space to be found between the edge of the foot bridges extending over the gutters of the cross streets of New Orleans to the streets themselves, and the edge of the bridges covering the same gutters as they pass across the streets parallel to the river, and there is quite frequently an open space between the foot bridges crossing the gutters of the streets parallel to the river and the points where those gutters intersect the gutters running the length of the.cross streets.

The improvements made upon the streets of the city in the last few years have changed this upon some but' not upon many streets.

We have reached the conclusion in this case that though it might have been defendant’s duty to have placed a red light at the end of the completed portion of the gutter covered by him, plaintiff was guilty of' such want of care and caution, and contributory negligence in the premises as to bar his right of recovery.

ITe is shown to be an old resident of the city and must have known that he was likely to find and should have anticipated finding open gutter spaces in front of him at the intersection of Gravier and Baronne streets if he believed that he was walking upon the Gravier street sidewalk, and he should have governed himself accordingly.

It was an act of negligence upon his part to have started running at the particular place he did and to have fixed his eyes upon the approaching car, instead of using them to ascertain the situation at places where open gutters would probably be in his path.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

BlaNCI-iakd, J., dissents.