Gilbert v. Hardimon ( 1918 )

GATES, J.

Plaintiff stored, an automobile with defendant, a •warehouseman, for several months. On taking it- out of storage certain parts and tools were missing, certain parts broken, and, the machine would not run. In an, action for damages the jury returned a verdict for dfefendlant. From, the judgment and an order denying a new trial, plaintiff appeal's..

[1, 2] The only point necessary to consider is the sufficiency of the evidence to sustain ¡the verdict. As charged' by the ciourt when proof (was offered!, tending to show that the machine was in good condition and all the parts, and tool's were there when, delivered to the warehouseman, the burden was on defendant tcv show his: want oif negligence. The only witness for (the defendant was himself, and he apparently knew nothing about tine car, except that he first saw it several davs after it was placed, in storage. Pie did not testify that he ever made a personal examination of the car, nor dkl he dispute any of the evidence offered on behalf' of plaintiff. After testifying generally as to the care used, he testified that none of the articles removed from from plaintiff’s car were removed' by him or by his order, but that a short time prior to the removal of the machine the warehouse was broken into. He did not testify as to the condition of the car 'before or after the warehouse was broken into', nor did he call any of bis assistants to the witness stand. He also negatived the assumption on his part that the damage occurred! and the missing parts were stolen at the time the warehouse was broken _ into by testifying that, “We checked everything over, and ■everything was there.” We are of the view that the defense was insufficient ini law to be 'Considered by the jury. Tibe faict that the windshield was broken, that a good tire was taken off .and an old! -worn tire substituted', and that the machine would not run, together with «plaintiff’s testimony as to the examination made «immediately thereafter, show, beyond a reasonable doubt, that the condition of the car was not the result olf the breaking intoi the warehouse. Reasonable men could not differ from itiiis roncllusiloar. We think defendant utterly failed to establish a «defense to the «action.

The judgment and order appealed from are reversed, and the cause remandte'di for a new trial.