Weil v. City of Alexandria , 1928 La. App. LEXIS 394 ( 1928 )

REYNOLDS, J.

Plaintiff sues defendant for $2560.00 damages alleged to have been sustained by her in falling into a hole 16 inches by 14% inches by 22% inches in dimensions excavated by defendant’s employees in the neutral part of a sidewalk between the pavement and the street curb and about 8 inches from the latter, and which hole had been left unguarded and without any light or other warning signal for four days and four nights.

Defendant denied' liability and alleged contributory negligence.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for the sum of $310.00 with legal interest from judicial demand. Both defendant and plaintiff have appealed.

OPINION

The evidence conclusively establishes that the employees of defendant excavated a hole 16 inches by 14% inches by 22% inches in dimensions in the unpaved or neutral part of the sidewalk between the pavement and the street curb and about 8 inches from the former and let it remain open and unguarded and without any light or other danger sign for four days and four nights and that it was a menace to the safety of pedestrians and a trap into which any person using the sidewalk might fall.

Naturally the defendant is liable in damages to anyone suffering injuries by falling into such hole without any negligence on his part.

Plaintiff was walking along the sidewalk in company with friends after dark and fell into the hole and thereby wrenched her back and sprained her ankle.

■Defendant insists that plaintiff was negligent and that her negligence contributed to cause the injury, but in our opinion the evidence fails to establish the slightest negligence on her part. In company with friends she was walking along the sidewalk and conversing and laughing and it was not negligence on her part to step off of the paved part of the sidewalk and onto the neutral or unpaved part thereof either backward or forward at the place of the accident without knowledge of the presence of the hole. No harm would have come to her if the hole had not been there or it being there, had it been properly guarded or a light or other warning of its presence been there.

In Choppin vs. Carrollton Railroad Co., 17 La. Ann. 19, it was held that even where the conduct of the plaintiff has, as a matter of fact, contributed to the accident, but such conduct has not been, in a legal sense, imprudent or negligent, the plaintiff may recover from the defendant at fault.

And in Ford vs. Tremont Lumber Co., 123 La. 742, 49 So. 492, that a person is not negligent for failing to anticipate that other persons will be negligent.

In our opinion the defendant was negligent and the plaintiff not negligent and that the defendant is. liable to her for the damages suffered in falling into the hole.

This brings us to the question of the amount of damages plaintiff is entitled to.

She did not call a physician the night of the accident and was not permanently injured as a result of the accident. She suffered some pain and incurred some expense. The district judge who heard and saw the witnesses testify and observed their demeanor on the witness stand was of opinion that plaintiff was entitled to $250.00 for the pain and suffering and to $60.00 for medical attention and servant hire, made necessary by the injuries.

In suits sounding in damages for personal injuries the opinion of the trial judge is entitled to much weight.

Civil Code, Article 1934, paragraph 3.

Enders vs. Skannal, 35 La. Ann. 1005.

“A verdict of $250.00 for the breaking of two ribs and a contusion of the hip and ankle on one side, which were not shown to be permanent, though small, could not be said to be inadequate.”

Lanier vs. Hammond Lumber Co., 141 La. 829, 75 So. 738.

We cannot say that the trial court erred either in rendering judgment in favor of the plaintiff or in the amount of damages awarded her.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.