Davis v. Milligan

WARNE, J. pro tem.

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Appellant appeals from the judgment of nonsuit rendered in favor of the respondent in an action for personal injuries.

Plaintiff while an invitee and business visitor at a service station operated by Myrle Stephens was thrown from a horse when the horse shied as the result of noise caused by Myrle Stephens kicking an iron device upon the grease lifting rack. Appellant received a severe back injury. Respondent Milligan was the owner of the real property, including the service station, where the accident occurred. Appellant filed his action against both Stephens and the respondent Milligan, but a few days prior to the trial he dismissed the action against Stephens.

Appellant’s complaint was in four counts. The first cause of action alleged that Stephens was in control of and working on the premises of the service station, that the accident was caused by his negligence, and that such negligence was a proximate cause of appellant’s injuries.

The second cause of action alleged that respondent was the owner and operator of the service station, and that Stephens was the employee and agent of respondent Milligan at the time of the alleged injury.

The third cause of action alleges that Stephens and Milligan were partners doing business on said premises at the time of the injury; and the fourth cause of action alleges that Milligan was the sole and exclusive owner in fee simple of the premises upon which the service station was situated, and was in possession and control of the premises at the time of the accident. The defendant Stephens answered, denying negligence on his part as alleged in Count I, and entered a general denial as to each of the remaining counts. He pleaded two defenses:

(1) Contributory negligence on the part of the appellant, and

(2) assumption of risk by the appellant.

[406]

Respondent Milligan answered Counts II, III and IY of the complaint, admitting that Stephens was in control of the service station, but denying the remaining allegation in each of said counts.

After appellant had presented his case and rested, respondent moved for a nonsuit on all causes of action. The motion was granted, and this appeal followed.