Douglas Public Service Corp. v. Barge Transport Co. , 158 F.2d 89 ( 1946 )

PER CURIAM.

A cluster of piling adjacent to appellant’s wharf on the edge of the Mississippi River at New Orleans was on August 29 or 30, 1942, broken off under the ground by being pushed upstream. On October 23, 1943, appellant filed complaint against appellee and two other Companies, each of which had barges and tugs tied up to the cluster or to each other downstream from the cluster, at or about the time of the injury to the cluster, to recover damages for such injury. A trial before the Judge produced much confused and conflicting testimony, from which the Judge found it was impossible to tell clearly whether either tug of those there moored had pushed the piling over, or whether some craft not so moored had done it, and he gave judgment against the plaintiff. The evidence was reconsidered on a motion for new trial which was overruled. Appeal was taken from the resulting judgment only as to Barge Transport Company, owner of one of the moored tugs. We have reviewed the evidence and do not find that it shows that tug did the damage. As the trial judge found, so we find that it is impossible to tell with sufficient certainty who was responsible, that the complainant has not carried its burden of proof, and cannot prevail.

Judgment affirmed.