Castay v. Katz & Besthoff, Limited

• Decision Date: 08 May 1933
• Docket Number: 14298
• Citation: 148 So. 76
• Parties: CASTAY ET UX. v. KATZ & BESTHOFF, LIMITED
• Court: Court of Appeal of Louisiana — District of US

148 So. 76

CASTAY ET UX. v. KATZ & BESTHOFF, LIMITED

No. 14298

Court of Appeal of Louisiana, Orleans.

May 8, 1933

Rehearing denied June 12, 1933.

Deutsch Kerrigan & Burke, of New Orleans, for appellant.

Loys Charbonnet and E. B. Charbonnet, both of New Orleans, for appellees.

OPINION

WESTERFIELD Judge.

This is a suit for damages for physical injuries resulting from a collision between two motortrucks.

The court below gave judgment for plaintiff in the sum of $ 618.05 and defendant has appealed.

The accident occurred at 7 p. m., March 4, 1930 (Mardi Gras Day). The plaintiff, Paul Castay, was driving his truck, with his wife, Mrs. Castay, as a passenger, along Banks street in the direction of the lake, and in obedience to a semaphore signal came to a stop at the intersection of Banks street and Jefferson Davis Parkway. While waiting for the signal light to change from red to green, plaintiff's truck was struck violently in the rear by the truck of the defendant, causing the damage for which this suit was brought.

The defendant admits that its truck hit plaintiff's truck but denies responsibility upon the ground that it had been stolen by some unknown person just prior to the accident and was in charge of the thief at the time. The record fails to show how the accident occurred beyond the bare fact that the vehicles collided at the intersection.

The driver of defendant's truck testified that he stopped the truck across the street and abreast of the premises No. 2812 Banks street, about five city blocks from the Jefferson Davis Parkway intersection, and, leaving the engine running, crossed the neutral ground of Banks street to the address mentioned where he delivered a package of medicine to the householder, Mr. Hymel, who met him at the door; that after receiving payment of the medicine, he started down the steps of Mr. Hymel's house, when he saw his truck speedily moving along Banks street and heard the gears shift but did not see any driver; that he thereupon returned to Mr. Hymel's home, where he called the manager of defendant's branch store at Lopez and Canal streets, acquainting him with the alleged theft of the truck; that he also reported it to the police at the Tenth Precinct Police Station; that he remained in Mr. Hymel's house for the purpose indicated for about fifteen minutes and then returned to the store at Lopez and Canal streets; that when he reached the store he was informed that one of defendant's trucks had been found at the intersection of Jefferson Davis Parkway and Banks street and, thereupon, he went to that location and found the truck.

The driver is corroborated in some particulars by Mr. Hymel and in others by Mr. Viosin, the manager of defendant's branch store. Other witnesses, testifying on behalf of plaintiff, stated that they saw the accident, but nobody saw any one leaving defendant's truck, nor was there any one about the scene of the accident who claimed to be its driver or to have any control over it.

Beyond the statement of defendant's driver to the effect that he heard the shifting of the gears, there is no evidence in the record which would indicate how the truck got to the corner of Jefferson Davis Parkway and Banks street, which is about five city blocks from the point where the delivery to Mr. Hymel was made, No. 2812 Banks street. Plaintiffs contend that it is possible that the truck started of its own accord by reason of some defective mechanism due to the fact that the driver left the engine running when going across the street to make the delivery of the package. Counsel for plaintiffs also suggest that Loeb, defendant's driver, may not be telling the truth and that he might have driven the truck himself and, after the accident, hurried back to the Hymel residence. However, they say that, in any event, whether the truck started of its own accord or was driven by Loeb or by a thief the defendant is liable.

Of course, if Loeb was driving the truck there can be no doubt of defendant's responsibility, but on the record before us, it is impossible to find as a fact that he was in charge of the truck when the accident occurred.

If the truck started of its own accord, and without human intervention, it is said that defendant is liable because defendant's driver was guilty of negligence in leaving the truck unattended with the engine running, particularly on Mardi Gras evening when great numbers of people are in the streets and presumably more evilly disposed person abroad. Without discussing at this time the question of the negligence of defendant in parking the truck with the engine running, we feel that the likelihood of its having started without shifting gears is very remote, and the probability of its having traversed five city blocks unattended and unguided is even more so. We cannot accept this theory of the occurrence. We pass, therefore, to the more likely explanation of the accident as having been caused by a thief or intermeddler and, for the purpose of discussion of this point concede, without so deciding, that the act of the...