304 F2d 875 Smith v. United States

304 F.2d 875

Fannie Lee SMITH, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 14795.

United States Court of Appeals Sixth Circuit.

June 15, 1962.

Louis E. Peiser, Memphis, Tenn., on the brief, William K. Moody, Memphis, Tenn., for appellant.

Thomas L. Robinson, U. S. Atty., Edward N. Vaden, Asst. U. S. Atty., Memphis, Tenn., on the brief. William H. Orrick, Jr., Asst. Atty. Gen., Civil Division, Department of Justice, Washington, D. C., for appellee.

Before MILLER, Chief Judge, and McALLISTER and WEICK, Circuit Judges.

ORDER.

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1

This action was filed against the Government under the Federal Tort Claims Act by the mother of Oliver Smith, Jr., a six-year old boy who was run over and killed by a mail truck on a street in Memphis, Tennessee. The action is based upon the alleged negligence of the driver of the mail truck. 28 United States Code, §§ 1346(b), 2674.

2

The District Judge, hearing the case without a jury, held that the plaintiff had not met the burden of proving negligence on the part of the operator of the truck and dismissed the complaint. We have reviewed the evidence and are of the opinion that this finding of fact is not clearly erroneous and must be accepted on this appeal. Rule 52(a), Rules of Civil Procedure, 28 U.S.C.; Beit v. United States, 260 F.2d 386, C.A. 5th; Valente v. United States, 264 F.2d 800, C.A. 6th; Gillen v. United States, 281 F.2d 425, 427, C.A. 9th.

3

It is ordered that the judgment be affirmed.