This failure must be construed against plaintiff. Walters v. Coen, 228 La. 931, 84 So.2d 464; Perez v. Meraux, 201 La. 498; 9 So.2d 662, Prince v. Liberty Mutual Insurance Co., La.App., 106 So.2d 368; Malveaux v. Buller, La.App., 135 So.2d 368; Melancon v. Texas Co., 230 La. 593, 89 So.2d 135. Cf. State v. Barbee, 187 La. 529, 175 So. 50.
The further language repeated the denial of jurisdiction "over the case except" for specified matters which were truly exceptions to the original wording of art. 2088. The original wording caused no hesitancy in an appellate court's considering an original application for authority to proceed in forma pauperis, Malveaux v. Buller, La.App. 3 Cir. 1961, 135 So.2d 368 (just as appellate courts had done prior to the 1960 Code of Civil Procedure, Buckley v. Thibodaux, 1935, 181 La. 416, 159 So. 603). (Perhaps it was arguable that, even as to those matters excepted from the denial of the trial court's jurisdiction, the appellate court could have exercised concurrent jurisdiction under the original art. 2088's general rule.) The 1964 amendment, however, intended to reduce the "too broadly stated" general rule; 1964 Comment (c) to art. 2088.
"Since the negligence of the decedent was a proximate and contributing cause of the accident, then regardless of the conclusions which may be reached as to the negligence of any of the defendants, plaintiff and her children are barred by the decedent's contributory negligence from recovering damages for his death. Malveaux v. Buller, 135 So.2d 368 (La. App. 3d Cir., 1961); Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579, 59 A. L.R. 148 (1928); Smith v. Illinois Cent. R. Co., 10 La.App. 342, 120 So. 405 (1929); Smith v. Monroe Grocer Co., 179 So. 495 (La.App. 2d Cir. 1938); McGuire v. Louisiana Baptist Encampment, 199 So. 192 (La.App. 1st Cir., 1941)."
Since the negligence of the decedent was a proximate and contributing cause of the accident, then regardless of the conclusions which may be reached as to the negligence of any of the defendants, plaintiff and her children are barred by the decedent's contributory negligence from recovering damages for his death. Malveaux v. Buller, 135 So.2d 368 (La.App. 3d Cir. 1961); Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579, 59 A.L.R. 148 (1928); Smith v. Illinois Cent. R. Co., 10 La. App. 342, 120 So. 405 (1929); Smith v. Monroe Grocer Co., 179 So. 495 (La.App. 2d Cir. 1938); McGuire v. Louisiana Baptist Encampment, 199 So. 192 (La.App. 1st Cir. 1941). The portion of the judgment which awards damages for the death of the decedent, therefore, must be reversed.
The Department, however, is liable for damages caused by defects in a highway which are sufficiently dangerous to cause an accident and an injury to a person using the highway in a reasonably prudent manner, if the Department has actual or constructive notice of the defect. Millstead v. City of New Orleans, La.App.Orl., 146 So. 493; Arceneaux v. Louisiana Highway Commission, La.App.Orl., 15 So.2d 638; Malveaux v. Buller, La. App. 3 Cir., 135 So.2d 368; Marshall v. City of Baton Rouge, La. App. 1 Cir., 32 So.2d 469; Carriere v. Aetna Casualty Company, La. App. 4 Cir., 146 So.2d 451. See also 60 C.J.S. Motor Vehicles ยง 182.