David Irish, a Minor, by and Through His Guardian Ad Litem, Clifford L. Irish, and Clifford L. Irish v. United States of America and Lyle James Smith

Irish appeals from a judgment in a federal tort claims act case holding the United States not liable for injury to him through the negligence of its driver Smith in operating a United States mail truck in Marysville, California in the vicinity where Irish, a child under four years of age, was playing. The district court dismissed the complaint as to Smith and Irish assigns no error in such dismissal in his statement of points on appeal.

In such a case the burden of proof is under the law of the State of California as stated in Kading v. Willis, 135 Cal. App.2d 82 , at page 87, 286 P.2d 861 , at page 865 as follows:

The ground of the appeal is that “The supplemental finding made by the court that the defendants were not negligent is not supported by, and is contrary to, the evidence.” The supplemental findings complained of so far as pertinent, read:

These supplemental findings were made in response to a holding in a prior appeal, 9 Cir., 225 F.2d 3, 7 , that the original finding, set forth in the footnote supra, “does not tell us whether the court believed all or part of the contradictory testimony of* Donald Hubbard, who seemingly had an affinity for any leading question which…