Buechner v. City of New Orleans

• Decision Date: 11 April 1904
• Docket Number: 14,857
• Citation: 112 La. 599,36 So. 603
• Court: Louisiana Supreme Court
• Parties: BUECHNER et ux. v. CITY OF NEW ORLEANS

36 So. 603

112 La. 599

BUECHNER et ux. v. CITY OF NEW ORLEANS

No. 14,857

Supreme Court of Louisiana

April 11, 1904

Rehearing denied May 11, 1904.

Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.

Action by Daniel Buechner and wife against the city of New Orleans to recover damages for personal injuries. From a judgment for plaintiffs, defendant appeals. Affirmed.

Edward Stanley Whitaker, Asst. City Atty., for appellant.

Arthur John Peters, Frederick Deibel, Jr., and James Wilkinson, for appellees.

OPINION

LAND, J.

Plaintiffs sued the defendant to recover the sum of $ 15,160 damages for personal injuries suffered by their minor son, Albert, and sustained by them by reason of his death, alleged to have been occasioned by his falling through a hole in a defective bridge over the Mobile Street Canal. Plaintiffs alleged that they and their son were without fault.

The defendant is charged with negligence in not keeping the bridge in a safe condition, and especially in permitting a dangerous hole in one of the passageways to remain open for some time.

The defendant pleaded the general issue.

The case was tried, and the result was a verdict for $ 6,000 in favor of plaintiffs.

Defendant did not move for a new trial, but took an appeal from the judgment.

During the trial of the case the defendant's counsel asked a witness on the stand the following question:

"Then that Mobile Bridge is the most unsafe of the two?" The question was objected to as irrelevant, and the court inquired what was the object of the question. Thereupon counsel for defendant made the following statement, viz.: "The object of the question is to show that there were two routes from the home of this boy to that school, and it was not necessary for him to take the route where this plank was out; that, being an intelligent, bright fellow, he had been warned that there was a hole there, and it had been there for three weeks, and there was another bridge where there was no hole like that, which would be more safe, and just as near for him to take to go to school."

Whereupon, the trial judge ruled as follows, viz.: "That amounts to contributory negligence, and that has not been pleaded. The objection is sustained." Defendant's counsel reserved a bill of exception.

The question raised by this bill is one of great importance, and the decisions on the subject are confusing, conflicting, and unsatisfactory.

The weight of the more recent decisions is in favor of the proposition that "contributory negligence is a matter of defense, and, to be availed of, must be pleaded." See Rapalje & Mack's Digest, vol. 3, Nos. 75, 76, p. 281; Beach, infra.

It has been the uniform jurisprudence of the Supreme Court of the United States that the burden of proof is on defendant to show that the plaintiff was negligent, and that his negligence contributed to the injury. See Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 55 L.Ed. 270; Washington & Georgetown R. Co. v. Harmon's Adm'r, 147 U.S. 571, 13 S.Ct. 557, 37 L.Ed. 284.

If this be a correct proposition of law, it follows that defendant must plead what he is bound to prove. What a party does not allege, he cannot prove. Hennen's Digest, vol. 2, p. 1155, No. 3.

Beach states that the rule adopted by the United States Supreme Court prevails in England, and 20 states of the Union, and that defendant, under this rule, must allege and prove the concurrent default of plaintiff. Cont. Neg. §§ 440-443.

The doctrine that the defendant may prove, without alleging, contributory negligence, rests on the premise that plaintiff must allege and prove, either affirmatively or by inference, that he was without fault. From this point of view, evidence that the injury was occasioned by the concurring fault of the plaintiff is admissible in rebuttal of the evidence adduced on his behalf to show that he exercised due care and caution. Several of our own state decisions enunciate this doctrine in a general way, but the clear-cut question is for the first time presented to this court by objections to the admissibility of testimony to prove contributory negligence. Where the evidence is all in without objection, it is unnecessary to pass on the question of the burden of proof. Ryan v. Railway, 44 La.Ann. 806, 11 So. 30. But in all cases the preponderance of the evidence as to contributory negligence must be on the side of the defendant. The law presumes, in the absence of evidence to the contrary, that plaintiff was free from negligence. Baltimore & Potomac R. Co. v. Landrigan, 191 U.S. 461, 24 S.Ct. 137, 48 L.Ed. 262.

In order to make out a prima facie case, the plaintiff must allege and prove that he was injured by the fault or negligence of the defendant. Civil Code 1838, art. 2315. It is true, as a general rule, that if the evidence shows that plaintiff was also in fault, and that the concurring fault of both parties produced the injury, plaintiff cannot recover. But it does not follow that plaintiff must allege and prove that he was without fault. Plaintiff is not required to prove that he was without negligence. Washington & Georgetown R. Co. v. Harmon's Adm'r, 147 U.S. 571, 13 S.Ct. 557, 37 L.Ed. 284.

The defense or plea of contributory negligence is in the nature of a confession and avoidance. It, standing alone, necessarily admits that the plaintiff was injured by the negligence of defendant. Otherwise it is irrelevant.

Our opinion is that contributory negligence must be pleaded by defendant, and, in the absence of such plea, evidence is not admissible to show that plaintiff was guilty of negligence.

As the plaintiff is required to allege, with legal certainty, injury from the negligence of the defendant, there is no reason why the defendant should not be required to allege the concurring negligence of the plaintiff. Our decision, however, is confined to the particular question raised by the bill of exception, and does not conclude the...