
    ROBERT FRITZ VS JOHN CRUJAK
    NO. 8387
    COURT OF APPEAL CITY OF NEW ORLEANS
    
      WILLIAM A. BEER, JUDGE.
    MAY 14, 1923.
    
      
    
   By WILLIAM A. BELL, Judge.

Plaintiff sues defendant in the sum of $1570.00 for damages alleged to have been suffered "by the falling of a portion of drain pipe from defendant’s premises. The trial court rendered judgment for defendant and plaintiff has appealed.

There is no dispute that the accident happened or that plaintiff was actually injured thereby or that defendánt is the owner of the property from whioh the falling object struck and injured plaintiff. The principal defense to this suit is that plaintiff,» by his own negligenoe, caused the accident and, therefore, oannot recover.

We find after oarefully examining the record, in whioh there is some conflicting evidence, that the facts of this case are as follows:

On February 20, 1919, the plaintiff, a colored man, helper on a brewery wagon, was delivering case goods to a saloon operated at Eo. 802 Iforth Rampart btreet; that adjoining this saloon, with a yard intervening,but without a fence separating the premises, was the property of defendant; that plaintiff, in obedience to instructions from the saloon-keeper, had delivered four or five oases in the yard, and while so engaged the funnel or top-most part of a down-pipe or drain was detached from defendant's house, to whioh it had been nailed, causing same to fall some twenty-five feet, striking plaintiff on the nose and inflicting a deep out across the nose or face about an inch and three-quarters; that plaintiff as a result of the accident was so severely and painfully injured as to require his being removed to and retained at'the Charity Eospital, where he was given the tetenus serum and confined for three weeks and unable to work for a total period of fouj weeks. Ihe doctor testifying in the case declared that the soar resulting from the wound is, in his opinion, one that could not be removed.

Defendant answers this suit by alleging that he waives all technical defenses, admits the ownership of the property to 7:hich the drain and broken funnel was attached, hut denieeT^fie accident plaintiff claims to have suffered was caused in any manner by the negligence of the defendant or to the bad repair or faulty oondition of his premises. The real and specific defense is framed in the following language:

"That said accident or any injury suffered by plaintiff therefrom was caused by his own fault and negligence in repeatedly piling heavy cases of beer against the gutter-spout pipe of defendant's house and by continually jarring same, shaking sane loose from its support; that said acts were negligent and were the direct cause of plaintiff's injury."

We are unable to find from the evidence that -defendant has substantiated by any reasonable preponderance of evidence the specific defense undertaken in this case. On the contrary there is but one of the three witnesses summoned by him that makes any positive statemeht that the down-drain pipe, which extended almost to the brick yard beneath, was struck by any object, such as a beer ca3e. This witness,and another of defendant's witnesses, ventures the remarkable theory that tho proprietor of this saloon, not the plaintiff, moved the down-pipe out of alignment to make room for the piling of the cases. This latter fact is specifically denied by the proprietor, and defendant's second witness, on cross-examination as well as on re-direct examination, stated that the proprietor had not touched the pipe. The plaintiff himself positively swears that he never touchod the down-pipe and did not place or throw any case or cases against it. Defendant produces a third witness, tho agent of the defendant, who admits that the drain and funnel had been on the property for over four ye^rs 'without any repair whatsoever, and that the down-pipe which supported the funnel was held in place by thirty or more metal straps placed around the pipe and soldered to it and also nailed to the building. Shis same witness v.as allowed to testify to the locality of the drain-pipe two days after the accident, saying that he found it's lower end had dropped to and was resting on the trick pavement of the yard. This fact, if true, does not in any manner prove that the plaintiff had, hy any act of his, caused this or any other condition of the down-pipe or the funnel resting upon it, whioh could have resulted in the accident.

•We are convinced from the evidenoe that the cause of the accident was natural deterioration of the funnel or upper portion of the drain-pipe, and that even though in the ordinary pursuit of his duties the plaintiff struck or shook the drain-pipe, that this of itself could not have caused the accident.

Epr these reasons,we think the judgment of the trial court should he reversed, and that plaintiff should he awarded reasonable damages, whioh from the evidenoe in this case, seem to he similar to and should he measured in a like amount in accordance with the ruling and award made hy us in the case of Grand v. Toys Brothers Company, Inc., No. 8920 Orleans Appeal. The loss of time, suffering and the nature and extent of damages suffered hy the plaintiff in this case would, in our opinion, he properly compensated hy a Judgment in the sum of $300.00.

IT IS, THER3E0RE, ORDERED, ADJUDGED AMD DECREED that there he judgment in favor of Robert Eritz and against John Crujak, in the sum of Three Hundred Dollars ($300.00), with legal interest thereon, from Judicial demand until paid, all oosts in both courts to he borne hy defendant.

JUDGMENT REVERSED.

MAY 14, 1923.  