213 F2d 538 Nowak v. General Acc Fire & Life Assur Corp

213 F.2d 538




No. 14902.

United States Court of Appeals, Fifth Circuit.

June 9, 1954.

Jesse S. Guillot, New Orleans, La. (Label A. Katz, New Orleans, La., of counsel), for appellant.

Leonard B. Levy, William M. Lucas, Jr., Dufour, St. Paul, Levy & Marx, New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and WRIGHT, District Judge.

HOLMES, Circuit Judge.

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This is a suit for personal injuries as the result of a fall of appellant while ascending some steps in the apartment where he was a tenant. The case was tried to the court without a jury, and at the conclusion of plaintiff's evidence defendant moved for a summary judgment. The district judge, setting out his reasons for so concluding, determined that the evidence did not show that plaintiff's injuries were caused by any defect in the steps, and gave judgment for the defendant, filing findings of fact and conclusions of law.


The appellant is here insisting that the case was not one for summary judgment because there was evidence from which the jury might have come to a different conclusion. The appellee, while not contesting this proposition, points out that the judgment, while entered on a motion for summary judgment, was really entered on the merits at the conclusion of plaintiff's case, and that it was appellant's burden to show that the findings were clearly erroneous. It seems clear to us that this is the correct way to look at the case. The judge did not decide it as a summary judgment would be decided, nor by summary-judgment procedure. He actually decided it on the merits at the conclusion of plaintiff's case, and we should treat it that way. So treating it, in view of the nature of the testimony of the plaintiff, we cannot say that the finding that the evidence did not show plaintiff was injured as a proximate result of any negligent condition of the steps was clearly erroneous.


Accordingly, the judgment appealed from is affirmed.