Barnes v. Beirne

The opinion of the. Court was delivered by Bermudez, J.

This is au ¡lotion in damages against the owner of a ■building.

The eliurge is, that the front, cornice, which had been for some timo 'in a dangerous condition, fell, struck and injured plaintiff, who was then a wayfarer to his home, and that the injury was occasioned by the neglect of the owner to repair.

The defendant pleaded file general issue and appeals from ii jndg'ment against, him for $580, which plaintiff, by joinder, asks to be increased to $5,000.

It appears that earlyin the morning of October 21, 1884, the cornice •of certain buildings, owned by defendant, on one of tlie principal thoroughfares of the city, suddenly tumbled down on plaintiff, who ■happened to be just at that moment passing on the sidewalk, seriously wounding him. The wound on the. head was severe and the bruises •ou tlie body were numerous and painful. They are shown t.o have been dangerous, suscepiible of occasioning lock-jaw, and such ns required the attendance of a competent physician for some twelve •days. The plain tiff remained confined to his bed about a week and to bis room a fortnight. Id was not, however, until two months after-wards, that his wounds healed and that he ceased to resent materially the injury and pain to his body, although, as soon as he was .able to gather some strength, he went back to bis occupation, (that of a private watchman), he being poor aud bis family needing his .assistance.

Tlie City Surveyor, a witness for defendant, testifies that the rafters were not tied together with collar-braces; that the heel-plates receiving t.lie ends of tlie rafters had rotted away; that the nails fastening the heels of the plates to the ceiling joist, had rusted ; that had there been collar-braces and the nails not rusted, the accident would not have happened; that the defect is iu the construction and could have been detected; that he could have discovered it and suggested.!! remedy which could have prevented the occurrence.

*282 His testimony is corroborated, by other witnesses. So that the evidence leaves no doubt that the building was, as regards the cornice, in a dangerous condition, duo both to a vice in the construction and to a want of necessary repair, and that this state of things could have been detected and remedied.

Article 670, R. C. C., provides that every person is bound to keep his-buildings in repair, so that neither their fall, nor that of any part of the materials compsing them, may injure the neighbors or passengers, (passans), under penalty of all losses and damages which may result from the neglect of the owner in that respect.

Article 2322, R. C. C., is to the further effect: That the owner is responsible for the damage occasioned by its ruin, when this is caused by neglect to repair, or is the result of a vice in its original construction.

The owner however is entitled to exoneration from liability when the accident is. the result of a fortuitous event or vis major. Larombiêre, 5, 795; Domat, 1, p. 481, N. 7; also 15 Ann. 448, Burton’s case.

The defendant contends that ho cannot be held liable, because the 'defect was not apparent from the outside, because he'was ignorant of it, and because he had not been notified of the condition of the cornice.

The law makes it his duty to keep his building in proper order, so that no one may be injured thereby. The defect could have been detected on inspection, if not outside, at least inside. He was bound to know whether repairs were or not necessary. Actual knowledge and willful neglect would have aggravated his responsibility. R. C. C. 670.

The law does not direct that any notice be given, or that any actual knowledge bo shown, as a condition precedent for recovery. R. C. C. 2322; Toul. 6 l. 3, til. 4; Marcadé, vol. 5, 272; Laurent, etc.

While commenting on article 1386 of the French Code, which is reproduced in ours, Marcadó says:

“Le propriétaire ost dé plein droit, présumé en faute. 11 a dfi. savoir que sa maison n’ótait pas en bon état; il á du connaítre les vices dont elle ótait affectée et lesreparations dont elle avait besoin et il ne serait pas admis á pr.ouver q’uil avait ótó trompé et qu’il les ignorait. Vol. 5, p. 272, II; also Toul., vol. 317; Laurent, vol. 20, p. 695, n. 642.

It is established, however, in this instance, that several attempts were made by the main tenant to notify the owner or his agent, but that neither could be found.

The circumstance that the property was acquired by inheritance by the defendant is not at all exciilpatoi’y and cannot be invoked in miti *283 gut-ion of damages. It may serve perhaps to alleviate the acuteness of the pain which the infliction of damages may occasion and which would otherwise be more keenly resented.

The defendant has failed to show fortuitous event, or vis major, which was not even pleaded.

The authority of Sourdat ( Responsibility) vol. 2, p. 15, No. 256, and the ancient precedent (1810) of the Court of Liege, have heeu well considered and given all the weight to which they are entitled.

A perusal of a more, recent opinion ( 1857 ) of a previous Supreme Court, in which heavy damages Were allowed for injury sustained by the falling of a wall, will x>rove of interest to the parties in this case. Howe vs. City of New Orleans, Mrs. Graihle et al., 12 Ann. 481. Tt is no doubt because the application of article 2322 of the Civil Code does not, appear in the syllabus, that the case is not alluded, to in the Digests.

The defendant can derive no benefit from the ruling on the Burton case, 15 Ann. 448, in which it was held that proof that there was no fault or negligence imputable to the defendant and that there was no original imperfection in the. structure, is sufficient to avoid liability.

' We adhere to that doctrine but fail to perceive how it can be applied to a case where neglect and vice of construction are shown.

The defendant complains that the allowance of the district judge is excessive and should be reduced to $50, actual damages, sustained in physician’s and druggist’s bills paid, wages lost, etc., etc.

Tt is no great, venture to answer that had he been injured and had he suffered as much and as long as plaintiff has, the indemnity allowed would surely not have sufficed to placate him. We will not however, increase the judgment as asked.

The lower - court properly applied the law to the facts found. 18 Ann. 26; 19 Ann. 363.

Judgment affirmed.