Kelly v. Dover

182 So. 2d 570, 1966 La. App. LEXIS 5483

• Court: Louisiana Court of Appeal
• Decided: January 24, 1966
• Docket: No. 6556
• Status: Published

Opinion

F. S. ELLIS, Judge pro tem.

This is a suit for property damage arising -out of an incident in which the windshield of plaintiff’s taxicab was broken, allegedly by a baseball thrown or batted by defendant. Judgment was rendered in the lower court, ■dismissing plaintiff’s suit, from which judgment plaintiff took a devolutive appeal.

Plaintiff testified that he, accompanied by his son, was driving one Mabel Jenkins to her home on Bayou DuLarge. When he passed in front of defendant’s property, he saw defendant engaged in batting flies to .two young men. According to plaintiff, defendant was standing in his driveway, fifty ■or sixty feet from the road, and was hitting the ball parallel to the highway. He stated his windshield was struck as he was opposite the driveway.

None of the passengers was able to say how the ball was propelled toward the car, but they all stated they saw a baseball 'bounce off the windshield and into the ■grass by the side of the road.

On the other hand, Mr. Dover, his broth■er and his nephew all testified that no baseball ever left the yard. They had no idea what might have broken plaintiff’s windshield.

The law of this state is clear that the burden rests on the plaintiff to prove bis case by a preponderance of the evidence. It is equally clear that the findings of fact of the District Court will not be disturbed unless they are found to be manifestly erroneous.

Although the District Judge did not render written reasons, it is apparent that he felt that the plaintiff had failed to prove his case by a preponderance of the evidence. With this conclusion we are in complete accord.

The judgment of the District Court is, accordingly, affirmed.

Affirmed.