The opinion
Concurring Opinion.
GrODCIIAUX, J.
I concur in the decree, though not in the opinion, which, independantly of the provisions of the statute under which this action is brought, indulges in a presumption of negligence based upon the unexplained presence of defendant’s property in a public highway.
The opinion, therefore, evidences an adoption and application of the doctrine of "res ipsa loquitur,” a doctrine which, far from being recognized in our jurisprudence, has, on the contrary, been ignored in cases where it might have been aptly applied.
Ackerly vs. Sullivan, 34 An. 1156; McIlhenny vs. Pullman Co., 5 Ct. of App. 219; Mire vs. Railroad Co., 42 An. 385; Neider vs. Railroad Co., 108 La. 154 .
Section 12 of the statute makes the owner of the log liable to a fine as well as to damages, for any injury suf *309 fered through the presence of the sunken log in the canal.
Consequently proof of the damage through this cause and of the ownership of the object causing the damage raises the presumption of liability and of negligence, which, in this case, the defendant has made no attempt to rebut. The attack upon the constitutionality of the statute on the ground that the subject-matter of this section is not expressed in the title cannot be sustained. The object of the act, as expressed in its title, is to provide a board to control or manage the canal and to prescribe its powers and duties; and,a specification of these powers necessarily carries with it the imposition of duties upon the persons within the sphere of operation of these powers.
As the title of the Act announces an intention to define the duties of those using the canal, a provision, such as is contained in Section 12, fixing a rule a presumption of liability for failure to perform these duties, is germane to the subject and clearly within the object expressed in the title. This is in accord with the conclusion reached by the Supreme Court in a case where the title of the statute bore a relation to its subject-matter quite identical to that existing in the present instance.
State vs. Coal Company, 41 An. 465.
Section 12 of the statute is constitutional and under its provisions the plaintiff has established a prima facie right of recovery that has not been rebutted. For these reasons I concur in the decree.
February 9, 1910.