Garner v. CrawfordGarner v. Crawford
This is a suit for damages for injuries sustained by plaintiff Willie Garner when he slipped and fell on the sidewalk immediately adjacent to а store building in Cov-ington, Louisiana, owned by defendant Lennie L. Crawford. Plaintiff brought suit initially for Three Hundred Fifty-Four Thousand Five Hundred Ninety-four and no/100 ($354,594.00) Dollars, and joined defendant Crawford’s liability insurer, United States Fidelity and Guaranty Company.
The accident in this case occurrеd when plaintiff, an elderly gentleman of eighty-three years was walking along a sidewalk immediately adjacent to defendant Crawford’s building, and slipped while attempting to traverse a wet spot caused by the leaking of a faucet attached to the side wall of defendant’s building. The evidence establishes that this faucet had been dripping from the mid-winter of the previоus year until the day of the accident, July 8, 1970, and that it had been dripping with Mr. Crawford’s full knowledge. A slick of algae and slime 18 to 30 inches in diameter had formed as a result of this dripping.
When plaintiff slipped and fell, he suffered an intertrochanteric fracture оf the right hip, for which he underwent surgery several days after the accident, at the Veterans Administration Hospital in New Orleans. He remained there until August 11, 1970, at which time he was transferred to the Forest Manor Nursing Home where he convalesced until January 8, 1971.
Thе defendant was found negligent in the trial court; and judgment was given in plaintiff’s favor, awarding him $1,914.00 for the expenses of his treatment at thе Veterans Hospital, and for expenses incurred at the nursing home, $2,114.00, or Four Thousand Twenty-eight and no/100 ($4,028.00) Dollars, in toto for reimbursement of the United States Government. In addition the trial court awarded plaintiff Fifteen Thousand Dollars for personal injuries.
In affirming the trial court on the issue of defendant’s negligence, we find that the evidence preponderates to the effect that the faucet in question had been leaking for a long time, that it had created a condition hazardous to the passing public; that Mr. Crawford had been well aware of the condition and its danger for somе time prior to the accident, and that he was negligent in failing to correct it.
The issue of plaintiff’s contributory negligencе is more serious. To have been guilty of contributory negligence in “assuming the risk” of walking through the wet place on the sidewalk, whiсh plaintiff freely admits that he saw, plaintiff must be found to have clearly understood the danger involved; or it must be found that a reasonable and prudent man similarly situated would have understood to do so. Peeples v. Dobson,
Generally, a relaxed standard of care is required in the contributory negligеnce situation by persons who are subject to the infirmities of old age. The rationale appears to be essentially the same as that employed to exculpate young children from contributory negligence. In the case of LaCava v. City of New Orleans,
“Aged Persons:
A person, whose sеnses are blunted by * * * old age, is not guilty of contributory negligence where his failure to use that degree of care, which an оrdinarily prudent person would use under the same or similar circumstances, is due to such disability.”
Nonetheless, the trial judge found the plaintiff to be spry and alert and to have had good eyesight. Three other witnesses testified to having slipped at the same spot, but being younger and a little more agile than plaintiff they did not suffer such severe injuries as his. In applying the “reasonablе and prudent man” principle of assumption of risk the trial judge said:
“At the time of the accident the plaintiff was 83 years old but sеemed to get around pretty well for his age. The Court believes that the circumstances existent here allowed the рlaintiff to reasonably anticipate that the sidewalk was safe for his passage and he could with reasonable diligеnce walk down the sidewalk in safety. The water on the walk was not of such an appearance that it revealеd it’s true danger.”
We find that the evidence upholds the trial judge in his opinion that plaintiff was not contributorily negligent so as to bar his rеcovery.
In affirming the trial judge’s award of $15,000.00 for plaintiff’s personal injuries, we note that plaintiff had been receiving an awаrd for total disability ever since contracting tuberculosis in World War I. We note, also, that he was ambulatory at the time of thе trial and confined neither to a walker, nor to a wheelchair. Nevertheless, in view of the extremely serious injuries which plaintiff sustained, requiring surgery and a long, painful period of immobilization and recuperation and a subsequent, substantial degreе of disablement, we find the trial judge’s award reasonable. Prior to the accident herein litigated plaintiff seems to have been unusual
For the foregoing reasons the judgment of the trial court is affirmed, at appellants’ costs.
Affirmed.