Gueble v. Town of Lafayette

• Decision Date: 22 June 1908
• Docket Number: 16,979
• Citation: 121 La. 909,46 So. 917
• Court: Louisiana Supreme Court
• Parties: GUEBLE v. TOWN OF LAFAYETTE

46 So. 917

121 La. 909

GUEBLE v. TOWN OF LAFAYETTE

No. 16,979

Supreme Court of Louisiana

June 22, 1908

Rehearing Denied June 29, 1908.

Appeal from Eighteenth Judicial District Court, Parish of Lafayette Philip Sidney Pugh, Judge.

Action by Francois Gueble against the town of Lafayette. Judgment for plaintiff, and defendant appeals. Amended and affirmed.

See 43 So. 63, 118 La. 494.

John Lewis Kennedy and Jerome Mouton, for appellant.

Gustave A. Breaux and Ralph W. Elliott, for appellee.

OPINION

BREAUX C. J.

On the 7th day of November, 1904, plaintiff fell and was seriously hurt. He was walking on one of the sidewalks of the town of Lafayette, conducting as usual on week days his little grandchild to school, a little girl of tender years.

He broke his hip in the fall. He was confined to his bed three months, and suffered excruciating pain. During that time he was not able to sit up at all. He was under medical treatment the whole time. He needed nursing night and day.

He was an old man, and had not yet entirely recovered from the effects of the fall at the date of the trial of this case in 1907. He cannot attend to any business which requires walking. Before the accident, though an old man, he could attend to some business.

He claimed $ 3,227.15 damages.

On January 6th last the judge of the district court decided his cause in his favor, and allowed him $ 1,800, with legal interest from the date of the judgment.

Defendant appealed.

The condition of the sidewalk where plaintiff fell presents the first question to which we direct our attention.

The weight of the testimony shows that the sidewalk was not in good condition. Residents of the town have, without hesitation, as witnesses, spoken of it as a poor and unsafe sidewalk.

Before taking up this branch of the case, we recall one of defendant's contentions. As it relates to a question of practice, it will be disposed of in the first place. It is that there was a fatal variance between the proof and the pleading.

All variances between the allegata and the probata are not necessarily fatal to the suit.

Now, as to the facts regarding this point: Plaintiff alleged in his petition that he fell in a small hole in the sidewalk; his foot was caught and caused his fall. In his testimony he stated that the sidewalk was in a bad condition; that the little girl was about to fall in the ditch, and that in the attempt to hold her up, quoting from his testimony, "I fell in the hole." At another time while testifying he said that a loose plank was the cause of his fall.

In the cross-examination also there is some contradiction on the part of plaintiff.

After the witnesses for plaintiff had testified, defendant, who had previously urged no objection, moved to strike out his testimony about the accident at any particular spot other than that alleged as stated in the motion.

The judge of the district court declined to strike out the testimony that had been admitted without objection.

We are of opinion that there was no good reason for him to do otherwise.

In his carefully written opinion, he briefly disposes of the dispute on this point. Substantially, his statement is that there was no surprise to any one; that the ground to strike out did not recommend itself to him. There was no reason in this case not to hold defendant by the rule that objection should be made in due time. There is a time limit within which to raise objections. Besides, the allegation in plaintiff's petition was broad enough to admit the evidence.

That allegation is "that while walking along Madison street, near the corner of Main and nearly opposite the then town hall of Lafayette," he met with the accident. That was substantially a correct allegation, and this allegation is not undone nor fatally affected by other words going more into particulars in regard to the place of accident. These words did not contradict the general allegation inserted above, although they did localize the place more thoroughly than the general allegation.

In describing the place of an accident mathematical precision is not always to be expected.

Under the facts and circumstances here we will not detail further. We find no good reason for setting aside the court's refusal to strike out the testimony.

There is authority sustaining the ground we hold as correct in this case. In Johnson v. R. R. Co., 27 La.Ann. 53, this court said: "It is true that the allegata and the probata must agree, but it is sufficient if the substance be proved."

Leaving this point, we take up the merits of the case; that is, the condition of the sidewalk.

We have already stated that it was bad. This inquiry involved tedious examination into the facts -- an inquiry regarding the sidewalk of the town years ago.

Whatever may have been the state of the sidewalks years ago, we infer that their dilapidated condition is of the past, and that now there is no danger of accident to the pedestrian; that there are no boards unnailed or broken to a dangerous extent.

In beginning with our examination into the facts of this case, we will not insert a summary of the testimony of plaintiff himself. It is sufficient to state that he sought to sustain the allegations of his petition.

We have carefully read the testimony of Louis Domengaux, a witness residing in the town. He said that previous to the accident he passed the sidewalk where plaintiff fell; it was in bad condition. He,...