Nettie v. Carraci , 1971 La. App. LEXIS 6065 ( 1971 )

REGAN, Judge.

Plaintiff, Lawrence Nettie, filed this suit against the defendants, Antonio Car-raci, and his liability insurer, The Fidelity and Casualty Company of New York, endeavoring to recover damages for personal injuries which he asserts he incurred when he fell down a flight of stairs in the residence owned by Carraci.

Defendants answered by virtue of a general denial and then affirmatively asserted that the fall was caused entirely by plaintiff’s negligence in failing to observe where he walked. In the alternative, they pleaded that he was contributorily negligent.

From a judgment dismissing plaintiff’s suit, he has prosecuted this appeal.

Our review of the pleadings and the testimony convinces us that the plaintiff failed to establish actionable negligence by a preponderance of credible evidence. It is apparent plaintiff’s pleadings, deposition prior to trial and finally his testimony are too contradictory to permit us to attach credibility to any of his statements. In his petition he asserted that he was painting upstairs in a residence owned by Carraci, and tripped over an object on the landing at the top of the stairs. In the course of the trial he testified that he was not painting, but was returning from closing the upstairs windows when he fell. This time he recounted tripping on the first or second step from the top. According to plaintiff’s description the steps were uneven and he once approximated each step slanted sidewise as much as forty-five degrees. According to the photographs introduced in evidence by the defendants, the steps appear to be straight, safe and have a uniform pitch.

Since the plaintiff was the only witness to the accident and since we find his testimony totally lacking in credulity, we are compelled to reach the inevitable conclusion, as did the lower court, that the plaintiff has failed to prove his claim with that certainty that the law requires.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.