Audige v. Gaillard

8 La. Ann. 71

• Court: Supreme Court of Louisiana
• Decided: February 15, 1853
• Status: Published

Opinion

Rost, J.

We do not consider this a proper case for the allowance of the damages claimed. The servant of the defendant, a hoy about fourteen years old, had gone into the yard of the plaintiff, at the request of the plaintiff’s servant, and picked up from the ground whore it lay, what to all appearance seemed a walking cane, and in handling it, as a boy of his age would naturally do, it went off and killed the plaintiff’s slave. If there was any fault in the boy, there was greater fault in the plaintiff’s leaving a disguised and loaded gun in her yard for months, as it is shown she has done. It was her negligence which was the occasion of the accident, and this is sufficient to prevent her recovery.

The testimony leaves it doubtful whether the cane was an air gun or a fire arm; if, as argued for the plaintiff, the fact of its being a fire arm was material to her, she should have shown it affirmatively.

Judgment affirmed with costs.