I respectfully enter my dissent. The question of proper lookout, in various phases, arises frequently. It seems to me that the majority opinion goes considerably beyond any of the decided cases in holding that the evidence in the case before us will support findings of failure to keep a proper lookout, negligence, and proximate cause.
As I see it, the case boils down to this. What was the negro attendant doing, or failing to do, with respect to keeping a lookout, at the time the car was stolen; was his conduct negligent; and was his *Page 213 negligence a proximate cause of the loss? There is no causal connection between his acts before, or his acts after, the theft of the car. The only ground of liability sought to be established by plaintiff's pleadings, or by the findings of the trial court, is that this particular negro attendant negligently failed to keep a proper lookout for the parked car.
I consider that the evidence tends to show that the attendant did not see the car at the time it was stolen — in fact, his words and conduct at the time plaintiff came for the car seem conclusively to demonstrate that the attendant did not see the car when it was stolen, and that he did not know that it had been stolen until plaintiff came after it.
Next, we may inquire, what does the proof show with respect to whether the attendant was negligent, at the exact time of the theft, in not watching the car? It is my opinion that the evidence shows nothing one way or the other with respect to this, and that we must resort to conjecture and speculation in order to find that the attendant was negligent at that particular time. We might speculate that the attendant was in the little house on the lot at the time, or that he had gone across the street to buy a cold drink, or that he was on the opposite side of the lot talking to friends, or that he was doing any one of countless things other than performing his duty of watching the car. Or, we might speculate that his duties had called him to another part of the lot where, for a moment, he could not see plaintiff's car, or that for a moment he was busily engaged in parking another car, or that he was delivering another car to its owner, or that he was doing some other act in the performance of his duties that would necessarily divert his attention for a short time from plaintiff's car.
Plaintiff's pleadings and the findings of the trial court will not permit us to impose liability upon the defendant because the ignition key was left in the car, or because there were not more attendants on the parking lot, or because of the construction and location of the lot and its driveways. Liability must be imposed, if at all, solely upon the ground that this particular negro attendant was failing to exercise ordinary care in the performance of his duty of watching plaintiffs car, at the very time the car was stolen. We do not know, from the evidence in the record, what the negro attendant was doing when the car was taken. Not knowing what the attendant was doing, we have no basis upon which to compare his conduct with that of the average prudent man under the same or similar circumstances.
To quote from Phillips v. Citizens' Nat. Bank, Tex.Com.App., 15 S.W.2d 550, 552, where the loss of certain property was involved: "Now the mere happening of an accident not only does not show negligence, but it does not tend to do so. It is no evidence of negligence."
In Wells v. Texas Pac. Coal Oil Co., Tex.Com.App., 164 S.W.2d 660, 662, it is said: "It is familiar law that negligence is never presumed, and that the mere happening of an accident is no evidence at all of negligence."
To the same effect are the decisions in Texas P. R. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049; Davis v. Castile, Tex.Com.App., 257 S.W. 870; Paris G. N. R. Co. v. Stafford, Tex.Com.App., 53 S.W.2d 1019; Gulf, M. N. R. Co. v. Wells, 275 U.S. 455, 48 S. Ct. 151, 153, 72 L. Ed. 370. The language of the last cited case is applicable to the case now before us: "In no aspect does the record do more than leave the matter in the realm of speculation and conjecture. That is not enough."
In 26 A.L.R. 223 and in 48 A.L.R. 378 will be found citations of many cases bearing on the liability of a bailee where the subject of the bailment is stolen. In 34 A.L.R. 925 and in 131 A.L.R. 1175 will be found citations of many cases bearing on the liability of the proprietor of a parking lot for loss or damage to automobiles left in the parking lot. While some of the courts appear to hold that a presumption of negligence on the part of the bailee arises from proof of the bailment and failure to return the subject of the bailment, it seems definitely to be the rule in Texas that the burden is upon the bailor to prove the negligence, at least where it is shown that the failure to return the property is due to its destruction or theft. Exporters' Traders Compress Warehouse Co. v. Schulze, Tex.Com.App., 265 S.W. 133; American Express Co. v. Duncan, Tex. Civ. App. 193 S.W. 411; Staley v. Colony Union Gin Co., Tex. Civ. App. 163 S.W. 381; Munger Automobile Co. v. American Lloyds of Dallas, Tex. Civ. App. 267 S.W. 304; Leonard Bros. v. Standifer, Tex. Civ. App. 65 S.W.2d 1112. *Page 214 The last three cases concern thefts from the bailee, and the Leonard Bros. case is from this court.
The bailor in this case did not rest his case upon a presumption of negligence arising from the mere fact that he delivered the automobile to the bailee and that the bailee failed to return it. He alleged that the loss of the automobile was caused by the bailee's negligence, alleging in particular the manner in which he, or rather his servant, was negligent. As I see it, he failed to prove the case he alleged.
I think, therefore, that the judgment of the trial court should be reversed and judgment here rendered for the appellant.