O'Malley ex rel. O'Malley v. Heman Construction Co.
Supreme Court of Missouri
Appeal from St. Louis City Circuit Court — Ho». W. B. Homer, Judge. (1) Tbe evidence offered by plaintiff failed to make a prima-facie case, because it does not tend to prove: (a) That ber injuries were due to tbe negligence of tbe driver of tbe wagon; (b) that tbe driver was in defendant’s employ; or (c).tbat tbe driver, if in such employ, was acting Avitbin tbe scope of bis employment at tbe time of tbe injury.
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Appeal from St. Louis City Circuit Court — Ho». W. B. Homer, Judge. (1) Tbe evidence offered by plaintiff failed to make a prima-facie case, because it does not tend to prove: (a) That ber injuries were due to tbe negligence of tbe driver of tbe wagon; (b) that tbe driver was in defendant’s employ; or (c).tbat tbe driver, if in such employ, was acting Avitbin tbe scope of bis employment at tbe time of tbe injury. (2) Tbe evidence in tbe ease affirmatively shows that tbe accident was unavoidable on tbe, part of said driver, and is not susceptible of any reasonable inference to tbe contrary.…
1Opinion of the Court
BLAIR, C.
This is an appeal from an order of the circuit court of the city of St. Louis setting aside involuntary nonsuit. The action was for damages for injuries to plaintiff (eight years of age when injured) occasioned by being struck by a wagon plaintiff claimed defendant’s servant negligently drove upon her.
Defendant assigns for error the ruling setting aside the nonsuit and contends the evidence does not tend to show (1) that the driver was in defendant’s employ; (2) or, even if so, that he was acting within the scope of his employment; (3) or that plaintiff’s injuries were due to the…
2Cases cited2 opinions
- Fleishman v. Polar Wave Ice & Fuel Co.Missouri Court of Appeals · 1910
- Lee v. JonesSupreme Court of Missouri · 1904
3Cited by22 opinions
- Orlann v. LaederichSupreme Court of Missouri · 1936
- Barz v. Fleischmann Yeast Co.Supreme Court of Missouri · 1925
- Chandler v. New Moon Homes, Inc.Supreme Court of Missouri · 1967
- Houston v. Co.Oregon Supreme Court · 1917
- State Ex Rel. Kurz v. BlandSupreme Court of Missouri · 1933
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