Hills v. City of New Orleans

Statement of the Case. MONROE, C. J. Plaintiff has appealed from a judgment sustaining an exception of no cause of action and dismissing her suit, which is an action for damages sustained by reason of the following circumstances, as set forth in her petition, to wit: That the city of New Orleans and certain other defendants, whom she names, are the owners of the premises No. 926 Touro street, in the city of New Orleans: “That on June 26, 1914, about 6 o’clock, p. m., petitioner was walking on Touro street * * * and was passing in front of the premises 926 Touro street, * * * and, as she was passing in front of the premises 926 Touro street, she stepped into a hole in the sidewalk, from which a brick had been removed; that petitioner’s ankle was twisted when she stepped in said hole, and that, as petitioner is a very stout woman, she lost her balance, and, in struggling to break the fall, she fell to the sidewalk, injuring her left arm, left side and hip, and her back; that the hole in said sidewalk was unnotieeable to 'any passer-by, but could have been discovered by defendants if they had examined same for the purpose of keeping the sidewalk in proper condition; that the said injuries to petitioner were caused solely by the negligent acts and omissions of defendants whose duty it was to keep said sidewalk in proper condition, and were in no way contributed to by any negligence on the part of petitioner.” Opinion. There is no suggestion in the petition as to the time when, or person by whom, the brick was removed, and non constat but that it had been used as ammunition, in a street shindy, within 10 minutes preceding the accident. The mere fact that it was not in its place at the moment of the accident is therefore insufficient to charge defendants with the responsibility therefor. True, plaintiff alleges that her injuries were attributable solely to defendant’s negligent acts and omissions, but [540] that is a mere conclusion of her own. She should have stated what the acts and omissions consisted of, and the court would then have had some basis upon which to predicate an opinion as to whether they were negligent or not. Judgment affirmed.