Opinion
No. 3463.
May 5, 1969.
APPEAL FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, NO. 447-728, S. SANFORD LEVY, J.
George J. Kambur, Robert J. Stamps, New Orleans, for plaintiff-appellant.
Robert J. Pitard, New Orleans, for defendants-appellees.
Before YARRUT, SAMUEL and CHASEZ, JJ.
This appeal concerns a $60,966.15 damage claim arising from a collision between two taxicabs in the privately owned parking lot of the Fairgrounds Race Track in the City of New Orleans. The Trial Judge dismissed Plaintiff's suit on a finding he failed to prove the accident was caused by the Defendant-driver's negligence.
The only witness to the accident to testify was the Defendant-driver. This is his version:
On January 14, 1966, after entering the race track parking lot, he drove in a direction that paralleled the building. His course took him past a row of cars, parked perpendicular to and adjacent to the outside wall of the grandstand. The parked vehicles were to his immediate right. As he approached the back of Plaintiff's taxicab, he observed it was stopped in the parking area and there was adequate space between Plaintiff's vehicle and the row of parked cars to permit his passing Plaintiff on the right. While he was passing, the right rear door of Plaintiff's taxicab was flung open by a passenger attempting to disembark and the door struck his taxicab. He stated his vehicle was not damaged.
Plaintiff's testimony is pure conjecture as to how the accident occurred. He admitted he did not see the collision. At the time, he was turning off his ignition and shifting to reverse gear to prevent his taxicab from rolling. He explained this was the standard procedure he followed before opening the door to discharge passengers. The only other factual evidence Plaintiff attempted to adduce was the condition of the right rear door after the collision, but the man who made the estimate could not recall where the door was damaged. He could only identify an estimate to replace Plaintiff's right rear door as one made by him.
Based on the foregoing evidence, we conclude the Trial Court properly dismissed this suit because Plaintiff failed to prove Defendant was guilty of any act of negligence whatsoever. It is a well established principle of our jurisprudence that a plaintiff must prove his claim by a preponderance of the evidence. Newsom v. Temple, La. App., 66 So.2d 357.
For the reasons assigned, the judgment appealed from is affirmed. Plaintiff is to pay all costs in both courts.
Affirmed.