Sample
Sample v. S. H. Kress & Co.
Opinion
Lead Opinion
Duniway, J.
Plaintiff appeals from a judgment of nonsuit entered in an action for personal injuries. He claims (1) that the evidence was sufficient to go to the jury, (2) that the doctrine of res ipsa loquitur applies, and (3) that the court erroneously denied his motion for leave to reopen. We find no error.
We state the facts most favorably to appellant, as we are required to do on appeal from a judgment of nonsuit. In doing so, we assume the truth of appellant’s own description of the accident, including those portions thereof that may tend to sustain the judgment. We do not think that the rule as to nonsuit permits a plaintiff to ask us to disbelieve his own uncontradicted testimony in order to find error in granting a nonsuit. Our statement includes those facts that appellant sought to prove on his motion to reopen.
Appellant, a truck, driver, arrived at the rear of respondent’s store on Stevenson Street in San Francisco with a load of merchandise for the store. He entered the store in search of a receiving clerk and was directed to the second floor. There was a freight elevator alongside the place where he was standing. On motion to reopen, appellant offered to show that the employee…