MERITS
On trial the evidence established that the accident occurred in the sparsely settled portion of the city on an unimproved street in the center of which the city, had graded a roadway for vehicular traffic leaving on each side of the roadway in its natural condition a space of about nineteen feet. The gas shut-off pipe which was several inches in diameter was constructed and located by the Gas Company as alleged by plaintiff; it extended approximately eight inches above the surface of the ground and was located at a point near the roadway (within the nineteen feet above referred to) directly in front of and at a distance of about fifty feet from plaintiff’s residence.
The plaintiff knew of the condition and location of the gas shut-off pipe, having had occasion to observe it since its construction, and on the occasion of the accident plaintiff was proceeding from her residence to a neighbor’s residence directly across the street and carrying in her arms a child of about three years of age, and as she was crossing she tripped on the gas shut-off pipe and fell into the street.
The plaintiff was a frail woman, very nervous, having been in poor health for several years prior to the accident, and when the child who was visiting her showed some symptoms of being chilled, plaintiff became unnecessarily alarmed, and, in her haste to get the child home, she attempted to cross the street, oblivious of the way (although the evidence shows that the light was sufficient to have enabled plaintiff to have seen the obstruction and other unevenness in the roadway) and she fell with the child in her arms.
Conceding, without deciding, that the city was bound to maintain that portion of the street where the shut-off pipe was located in a reasonably safe condition for persons using the street in the exercise of ordinary care, it must be conceded that plaintiff cannot recover (Whalon vs. Sewerage & Water Board, 142 La. 735, 77 So. 530; Peetz vs. St. Charles Street R. R. Co., 42 La. Ann. 540, 7 So. 688; Burke vs. Tricalli, 124 La. 774, 50 So. 710), unless it can be said that the failure to exercise ordinary case was excusable by reason of her alarm occasioned by her anxiety at what she conceived to be the condition of the child.
The authorities which are cited by the plaintiff in support of her contention in that respect we do not think are in point.
*222In Mayronne vs. Keegan, 117 La. 661, 42 So. 212, in which the syllabus on original hearing reads:
“Where a boy ten years of age was walking at night on a public levee, and was frightened by dogs, and thereupon- ran down into a street and came into violent contact with certain pieces of machinery negligently left in the public thoroughfare by the employees of the defendant, and was thereby seriously injured, the defendant will be held responsible in damages.
“In such cases the unlawful obstruction of the street is the proximate cause of the injury, and it is no excuse that, defendant did not anticipate that any person would approach the street from the levee or would be frightened therefrom by the pursuit of dogs”—
is distinguishable from the present case in many respects, and especially in that the plaintiff in the case cited acted in an emergency where his safety was apparently imperilled, while in the present instance the assumed emergency or peril under which the plaintiff acted related to another, and in such situation it is generally conceded that in order for the person injured to be excused from exercising ordinary care, or negligence, the emergency must have been produced by the act of the defendant (R. C. L., Negligence, Yol.' 20, Sec. 108 et sect.; 29 Cyc. 524); and it is not, of course, contended that the emergency in which plaintiff acted was created by the defendants.
There are other cases cited by plaintiff in which a pedestrian was held not to have been guilty of negligence in failing to observe an obstruction or defect in the street by reason of the fact that his attention was diverted from the street on account of it being necessary for him to observe the traffic, or in having his attention directed to other matters which the city should have reasonably apprehended would be the case; which, of course, are recognized to be distinguishable from the present case.
The judgment appealed from is affirmed.