164 So. 452 | La. Ct. App. | 1935
Defendants admit ownership of the building and that they had leased it to Levi Thomas, but, for lack of information, other allegations of the petition are denied. They affirmatively plead that they did not know that the balustrade need repairing and did not know plaintiff was injured by its falling for some two months thereafter; and, after investigating the facts of the accident, have this to say: That if plaintiff had not negligently and in an abnormal manner used said balustrade it would not have fallen and he would not have been injured; that in so using the balustrade he *453 was guilty of gross negligence. In the alternative, should it be found and held that said balustrade was in a defective condition, and under the law they were negligent in not keeping it in a better state of repair, then, and in that event, the contributory negligence of plaintiff, in the following respects, is pleaded in bar of his right to recover:
(1) That on the afternoon when the accident occurred, he was intoxicated and drunk, and while in that condition staggered up the steps of the leased premises, and, spying a colored girl in the adjoining yard, he immediately rushed to the balustrade on that side of the house to engage said girl in conversation, and "at the same time throwing himself with a reckless, drunken force against the balustrade, grasping the top rail with both hands, and then, after bringing his torso and hips to a position of almost right angles, threw his body and entire weight across said top rail with so much force as to cause the balustrade to give way and break, and precipitate him to the ground"; which negligence, they specially plead, was the proximate cause of the accident, and not the negligence, if any, of defendants.
(2) That the decayed condition of the balustrade was plainly visible and apparent to plaintiff or any one else; that there were no coverings or obstructions to prevent him observing its true condition if he had tried to do so; and that he often visited the place and had ample opportunity to observe the defective and decayed condition of the balustrade.
From a judgment for plaintiff for $7,076.85, defendants appeal.
We are also convinced that the balustrade did not give way from any unusual pressure against it by plaintiff. Only two persons saw the accident. They were plaintiff and the negro woman on the porch or in the yard of the adjoining cottage. Plaintiff says he "didn't much more than touch it, went to lean over, had my hand like that (indicating), leaned over to call Levi," and the balustrade gave way before he actually called him. The negro woman (Nellie Haynes) states she never knew plaintiff before this occasion, but had seen him on the four previous Saturdays. However, later on in her testimony she states that on each of the previous four Saturdays she was with plaintiff, drank with him and his friends in the home of Levi Thomas. Thomas positively denies this woman's statement, and says so far as he could recall she had never been in his home at 420 Caddo street, and his wife corroborates his testimony in this respect. The testimony of this Haynes woman does not impress us as being entirely fair and unbiased. However, her evidence does not support defendants' contention that plaintiff threw his weight unduly against the balustrade when it fell. In describing the accident, she says:
"A. When he leaned on the porch, he asked me if the people were at home, and I says, `I do not know; if they are they are in the back.' He looked around like that (illustrating) and I kept on sweeping. He leaned on the porch and says, `You want a drink?', and I says, `I do when I get through sweeping,' and he says, `Drink now', and he leaned on the balustrade like this (illustrating) and then he took one hand off of the balustrade and reached in his pocket and pulled out a bottle, and then is when he fell.
"Q. When he put his weight on the balustrade, show how he did that? A. He had both hands on the balustrade, like this (illustrating) and when he asked me if I wanted a drink, then he put his weight like this (illustrating) and got the bottle with the other hand, and that is when he fell."
This testimony shows, if true, that plaintiff at first rested both hands on the balustrade, *454 and then only one as he reached for the alleged bottle of liquor. It negatives the contention that he lunged forward after resting his hands thereon. The top rail of the balustrade was 26 inches above the floor. Plaintiff is 5 feet, 9 inches tall. Therefore, it was but natural, as he states, for him to have rested both hands on the top rail as he prepared to lean forward to call or look for Thomas who was in bed in a room towards the rear of the house. In view of these conclusions, whether plaintiff was intoxicated to any extent becomes an unimportant factor in the case.
It is not seriously denied that the balustrade was not in a good condition. The ends of the rails, originally toenailed to the porch post, had decayed so much that the nails, also badly rusted, barely held them to the post. The balustrade was insecurely held in place by the rusted nails, and, when plaintiff leaned forward thereon, gave way with the result mentioned. There were several spools out of the balustrade, but its general appearance did not indicate its decayed and unsafe condition. Plaintiff was not required to have closely inspected it before leaning on it. Wise v. Lavigne,
"670. Owner of building — Duty to repair. — Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages, which may result from the neglect of the owner in that respect."
"2322. Building — Damage occasioned by ruin. — The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction."
"2692. Lessor's implied obligations. — The lessor is bound from the very nature of the contract, and without any clause to that effect: * * *
"2. To maintain the thing in a condition such as to serve for the use for which it is hired."
"2693. Delivery in good condition — Duty to repair. — The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is bound to make as hereafter directed."
"2695. Guaranty against vices and defects. — The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same."
"2717. Repairs required by unforeseen events or decay — Lessor's duty to make. — The expenses of the repairs, which unforeseen events or decay may render necessary, must be supported by the lessor, though such repairs be of the nature of those which are usually done by the lessee."
Article
In Ciaccio v. Carbajal,
And in Thomson et al. v. Cooke et al.,
The case of Evans v. Hollander,
In Klein v. Young et ux.,
Appellants mainly rely upon Brown v. Pons (La.App.)
Defendants carried the burden to establish their plea of contributory negligence. They have not done so.
The doctors who examined plaintiff concur in the opinion that he will continue to improve for several months, but none think he will ever attain to good physical condition again. It is practically certain he will be materially, if not totally, disabled for life. It is humanly and medically impossible to accurately forecast what the final result will be. Contingencies affect the case which will have influence upon its final outcome. In view of plaintiff's financial condition and station in life, it is not to be expected that he will receive the same character of medical treatment and attention as one more fortunately situated would receive.
In most cases involving demand for damages on account of personal injuries, fixing the amount thereof is not without difficulty. Ofttimes an arbitrary amount is arrived at. In the present case, the difficulty is increased because of the nature of the injury and uncertainty as to the extent improvement will finally reach. The doctors themselves are most uncertain, but, as said before, none believes plaintiff will ever be able to perform heavy manual labor again. This is the only line of work he could perform. The record does not disclose that he has suffered to any great extent. A state of paralysis is not generally accompanied by pain.
Appellants argue that this suit is premature because at this time the duration of plaintiff's injuries cannot be definitely determined. The point is not well taken. There must be an end to every litigation; and if suits for damages for personal injuries were held in abeyance on account of there being some degree of uncertainty as to the final outcome of such injuries, the extent of disability, etc., the dockets of the courts would become clogged from deferred cases, and the ends of justice frustrated.
All things considered, we are of the opinion the judgment appealed from is excessive to the amount of $2,000; and, for *456 the reasons assigned, said judgment is reduced to $5,076.85, and, as thus amended, said judgment is affirmed, with costs.