Buechner v. City of New Orleans

Citations

• 112 La. 599
• 36 So. 603
• 66 L.R.A. 334
• 1904 La. LEXIS 442

Syllabus

<p>MUNICIPAL CORPORATIONS — DEFECTIVE BRIDGE — INJURY TO PEDESTRIAN — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF — CARE REQUIRED OF CHILDREN — QUESTION FOR JURY — EVIDENCE—PLEADING.</p> <p>1. The court below did not err in excluding testimony offered to show contributory negligence, when no such defense had been pleaded.</p> <p>In actions for personal injuries,. the burden of proof is on defendant to show that plaintiff was guilty' of contributory negligence. Inland & Seaboard Ooasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Washington & Georgetown R. Co. v. Harmon’s Adm’r, 147 U. S. 571, 13 Sup. Ct. 557, 37 L. Ed. 284.</p> <p>Such negligence is a matter of defense, and must be specially pleaded to avail defendant. Rapalje & Mack’s Digest, vol. 3, Nos. 75, 76, p. 281; Beach, Contributory Negligence, §§ 440-443.</p> <p>2. The doctrine that plaintiff in such actions must allege and prove that he was without contributory fault is overruled in so far as it has been recognized in the jurisprudence of the state of Louisiana.</p> <p>3. Where it is shown that a boy between eight and nine years of age fell through a hole in a city bridge and was drowned, the question of his contributory negligence (arising on evidence introduced without objection) was one of fact to be determined by the jury, after considering his maturity and capacity and all the circumstances of the ease. Westerfield v. Levis, 43 La. Ann. 69.</p> <p>4. The city owed to the public the duty of keeping the bridge in a safe condition for public use, and is liable for special injuries resulting from neglect to perform this duty, after reasonable notice of the defective condition of the structure. Dillon’s Munic. Corp. (3d Ed.) § 1017.</p> <p>(Syllabus by the Court.)</p>