Forrester v. Cleveland (City)

LEVINE,' J.

Epitomized Opinion

First Publication of this Opinion

Plaintiff Forrester was injured by being-struck by a police patrol wagon belonging to defendant city which was being driven by a civilian employe at an excessive rate of speed and which was carrying police officers. In the pleadings and opening statement of counsel plaintiff contended that the wagon was being used in the performance of a ministerial function by the city. Defendant in the pleadings alleged that the function was governmental. At the conclusion of opening-statement for plaintiff the Common Pleas, on motion of city, arrested the testimony from the jury and rendered judgment for defendant. Plaintiff prosecuted error. The Court of Appeals held:

If plaintiff had been able to show that the city was engaged in a ministerial or corporate duty, and that while so engaged its driver was negligent, resulting in injury to plaintiff, a prima facie case would have been made out. The mere fact that at the time of the accident the patrol wagon was carrying police officers was not sufficient to establish that the city was acting in the performance of a governmental duty only. Jones v. Sioux City, 170 NW. 445, followed. The trial court was in error in arresting the case from the jury. Judgment reversed.