Rapp

A rehearing was granted' herein for the purpose of giving further consideration to the point that the action of the trial court in granting respondent’s motion for a directed verdict at the conclusion of the trial was justified by reason of the fact that there was no evidence of sufficient substantiality to show that, at the time of the accident which resulted in the death of decedent, the general manager of respondent, Fred E. Whyte, was acting within the scope of his employment.

The action was one instituted by the widow and minor child of Leo A. Rapp, deceased, to recover damages resulting from his death. The trial court on motion of defendant directed the jury to return a verdict in favor of defendant for the reason that the court was of the opinion that the evidence showed that the decedent was guilty of contributory negligence which proximately contributed to the injuries described in the complaint. The jury thereupon returned its verdict in favor of defendant and judgment was entered thereon. Plaintiffs have appealed. The question presented on this appeal, therefore, is whether the trial court erred in directing a verdict in defendant’s favor.

The decedent suffered…