Vaughan v. Western Meat Packing Co. ( 1971 )

BLANCHE, Judge.

Plaintiffs, Edward and Evelyn Vaughan, have taken this appeal from a judgment of the District Court in favor of defendants, Western Meat Packing Company and The Travelers Insurance Company.

Shortly before noon on January 19, 1967, a Brahma calf escaped from the Western Meat Packing Company. The owners of Western reported the animal’s escape to the Slidell police. On the evening of January 19, 1967, plaintiff, Mrs. Evelyn Vaughan, was driving in a southerly direction on U. S. Highway 11 approximately four-tenths of a mile north of Slidell, Louisiana, when a cow came out of the woods on Mrs. Vaughan’s right and suddenly entered her lane of travel. In the resulting collision the cow was killed and Mrs. Vaughan suffered whiplash-type injuries.

Plaintiffs’ devolutive appeal is from the District Court’s holding that plaintiffs did not carry the burden of proof necessary to establish that Western Meat Packing Company owned the cow that was killed in the collision with Mrs. Vaughan’s automobile on January 19, 1967.

The District Court was apparently impressed with the fact that there was a discrepancy between the size and color of the dead cow and the size and color of the cow that escaped from the Western Meat Packing Company. The testimony does not disclose whether or not the Slidell police were given a description of the cow that escaped from the Western plant at around midday on January 19, 1967. However, at the trial, one of Western’s employees, Russell Wilcox, testified that the escaped animal was a slate-colored Brahma calf weighing between 350 and 400 pounds. In contrast with the description given by Western’s employee, the testimony of the investigating officer indicates that the dead animal weighed between 400 and 600 pounds and was brownish in color. The investigating officer’s testimony was substantially supported by the testimony of Anthony Plescia, a partner in Western Meat Packing Company, who had been notified about the accident and had gone to see the dead animal. Mr. Plescia testified that the dead animal did not fit the description of the animal that escaped earlier in the day. The dead animal, according to Mr. Plescia, was brownish-red in color and weighed between 600 and 700 pounds.

It is well settled that the factual conclusions of the trier of fact are entitled to great weight and should not be disturbed upon appellate review in the absence of manifest error. Therefore, we are unable to disagree with the trial judge’s holding that the cow which escaped from the Western Meat Packing Company was not the same cow which was killed in the collision with Mrs. Vaughan’s automobile.

Accordingly, the judgment appealed from is affirmed, and all costs incurred in connection with this appeal are assessed to appellant.

Affirmed.