60 Cal. App. 2d 177 | Cal. Ct. App. | 1943
This action is brought to recover damages for personal injuries suffered by plaintiff, Takashi Kataoka, who was, when he was injured, a boy four years of age. The first three counts of the complaint set forth, in varying forms, his cause of action to recover damages for his own injuries. In a fourth count, plaintiff Tsutomu Kataoka, who is the father of the other plaintiff, seeks recovery for liabilities he has incurred for medical, hospital and nursing treatment for his son. In the following opinion the word “plaintiff” will be used to designate the plaintiff Takashi Kataoka, unless otherwise indicated. Both plaintiffs appeal from a judgment against them entered after a directed verdict in favor of defendants.
The defendant corporation conducts a large department store in the city of Los Angeles. At the time plaintiff was injured this store had, upon its third floor, a department sell
This escalator had at its lower end, fastened to the floor where the moving steps disappeared under the floor, a device designated as a “comb plate,” the purpose of which was, if some passenger did not lift his feet up and step off the escalator, to slide them gradually up on the plate. This comb plate had forty or fifty teeth 3% inches long and 9/16 inch apart. Between the comb plate and the steps as they passed under it there was a space about *4 inch deep. There was no guard or attendant stationed at this or any of the escalators at the time of the accident, although on busy days it was the custom to have such an attendant.
Plaintiff’s hand was caught in the space between the comb plate and the steps passing under it. Goddard stopped the •escalator, took hold of plaintiff’s wrist and tried to pull his hand out, but was unable to do so. Then he got a key which was kept near by and reversed the escalator. When it started going in the opposite direction plaintiff’s hand at once came out. Two fingers were mangled, crushed and cut off, so that now only short stumps are left.
No witness saw plaintiff just before his hand was caught and hence there is no direct testimony disclosing how it happened. The theory of plaintiff’s counsel is that plaintiff was attracted to the escalator by its bright appearance and moving steps, went .to it and in childish curiosity reached out his hand to investigate the steps and thus got caught.
The question here for decision is whether, on the foregoing facts, and a few others which we shall mention as they become pertinent to our discussion, the court should have directed a verdict for defendants. The power of the court in passing upon such a motion is strictly limited. It has no power to weigh the evidence, but must view it in the light most favorable to the party against whom the direction is asked and accept every inference and presumption in his favor that may legitimately be drawn therefrom, and the motion can be granted only when, on such a consideration of the evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of that party if one were given. (Gish v. L. A. Ry. Corp., (1939) 13 Cal.2d 570, 573 [90 P.2d 792]; Newson v. Hawley, (1928) 205 Cal. 188, 190 [270 P. 364]; Wiswell v. Shinners, (1941) 47 Cal.App.2d 156, 159, 163 [117 P.2d 677]; Barty v. Collins, (1930) 109 Cal.App. 94, 96 [292 P. 979].)
In answering the question above put as to the propriety of the directed verdict, we deal with the defendants separately, reaching a different answer for each of them. We take up first the case of the defendant corporation. Plaintiff contends that it was required to exercise the highest degree of care toward him, likening the escalator to an elevator and citing cases where operators of elevators and escalators were
“The term ‘ordinary care’ is a relative one, and the standard by which it is to be measured varies . . . with the circumstances attending each particular case.” (19 Cal.Jur. 579; Lolli v. Market St. Ry. Co., (1941) 43 Cal.App.2d 166, 168 [110 P.2d 436].) “Care must be in proportion to the danger to be avoided and the consequences that may reasonably be anticipated as the result of conduct, and the circumstances may be such that far greater care is exacted from one party to an action than from the other.” (19 Cal.Jur. 579, 580; see also Hatzakorzian v. Rucker-Fuller Desk Co., (1925) 197 Cal. 82, 98 [239 P. 709, 41 A.L.R 1027].)
One of the factors affecting the care to be exercised may be the presence of children on the scene. In this case the accident happened in the infants’ and children’s wear department of a large store. While there is no evidence of the ñumber of children visiting that department, it is clear that children under the age of six years were invited to go there and that the defendant storekeeper should have expected their presence. Children of such an age ordinarily could not appreciate the danger of putting their fingers, in or around moving machinery, but would be attracted by it, especially if it were bright, and would be likely to investigate with their fingers anything to which they were attracted.
“A child of immature years is expected to exercise only such care as pertains to childhood, and all persons dealing
This matter has been considered in several cases from other jurisdictions, in which not only were escalators in stores involved, but the facts were that small children had gotten their fingers caught in them, and it has been held that the proprietors of the stores might be held liable for negligence in not anticipating and guarding against such accidents, and that the question whether their failure in that respect did constitute negligence was one of fact for the jury. (Hillerbrand v. May Mercantile Co., (1909) 141 Mo.App. 122 [121
The defendants insist, especially in their argument on rehearing, that a decision against them on this point is an application of the rule of the so-called “attractive nui
We do not intend, by what we have just said, to declare that negligence of defendant corporation here was established as a matter of law, or that a verdict for it would have been without support in the evidence. But upon the evidence questions of fact arose for the jury, which should have been allowed to determine whether the escalator was of the class of objects naturally attractive to children, whether defendant corporation should in the exercise of ordinary care have known that it was of that class and anticipated accidents such as that which happened to plaintiff, and if so, whether ordinary care required the stationing of guards at the escalator or
The foregoing conclusions do not apply to defendant Goddard. He did not install or maintain the escalator and was not in charge of its operation. He was merely the floor manager in charge of the department of the store where plaintiff was injured. He had been instructed how to stop and start the escalator, in case accidents should happen, but is not shown to have had any other responsibility regarding it. He cannot be held liable to plaintiff on any of the grounds above suggested. Plaintiff contends, however, that other grounds of liability exist as to him, growing out of his conduct after the accident happened.
This eonténtion is based on the testimony of plaintiff’s mother that plaintiff was kneeling down facing toward the escalator with his hand caught in it, that Goddard, when he came up, stopped the escalator, took hold of plaintiff’s wrist and tried for “about two minutes ... a little while” to extract the hand, that failing in this effort, Goddard reversed the escalator and “then Takashi’s finger came out with the blood shooting out,” that before the escalator was reversed there was no blood visible on plaintiff’s hand, and the blood appeared “just when the escalator was reversed.” From this plaintiff seeks to draw the conclusions that the reversal of .the escalator was the cause of the loss of parts of his fingers and that Goddard was negligent in reversing the escalator instead of calling mechanics, who were somewhere about the building, to remove the comb plate, an operation which would take 15 or 20 minutes after the mechanics arrived. In addition to the facts thus relied on by plaintiff, the mother’s testimony also shows that the back of plaintiff’s hand was injured “quite a bit . . . torn and blistered like.” These facts do not justify the inferences suggested by plaintiff. From the fact that the back of the hand received the injuries above stated—injuries which were impossible unless the back of the hand were drawn in between comb plate and step—it is clear that the fingers were not visible when plaintiff’s mother looked at the hand before the escalator was reversed. Hence her failure to see blood affords no basis for an inference that the fingers were not then bleeding. It is easy to understand how the forward movement of the steps
Moreover, Goddard knew that it would take 15 or 20 minutes to remove the comb plate and thus free plaintiff’s hand, after the mechanics arrived, in addition to the time necessary to get them there. He had discovered that the hand could not be released by such efforts as he could make with the escalator stopped. Plaintiff was already crying with the pain of his injuries. Goddard’s conclusion that a reversal of the escalator would at once free the hand was a reasonable one, under the circumstances, and was proved correct by the event. It is not shown that anything apparent to him should have caused him to know, or even to suspect, that reversal of the escalator would result in the cutting off of plaintiff’s fingers or otherwise increase the injuries he had obviously suffered already. If Goddard decided, as apparently he did, that it was better to free plaintiff’s hand at once than to keep him in a strained and necessarily painful position for a period of time which might considerably exceed 15 or 20 minutes, we see no reasonable ground on which a jury could have found that his action in that respect, done under the stress of'a sudden emergency, was negligent, even if we assume that, in fact, the reversal of the escalator did aggravate plaintiff’s injuries.
Plaintiff also contends that the doctrine of res ipsa loquitur is applicable here and that under it an inference of negligence on the part of both defendants may be supported without anything more than appears in the record. That doctrine is clearly not applicable in support of plaintiff’s case against defendant Goddard. One of its fundamental elements is that the thing causing the injury be under the management and control of the defendant. (19 Cal.Jur. 704, 708.) No such condition existed as to Goddard. The doctrine is likewise not applicable to defendant corporation, but for other reasons. “The reason for the rule is that ordinarily the one injured is not in a position to know more than
Defendants contend that plaintiff’s mother was guilty of contributory negligence in failing to keep proper watch over plaintiff and to prevent him from getting caught in the escalator. As defendants concede, such negligence would not bar plaintiff Takashi’s action for his own injuries (Zarzana V. Neve Drug Co., (1919) 180 Cal. 32, 37 [179 P. 203, 15 A.LR. 401]), and it was not pleaded as a defense thereto; but defendants argue that any recovery by plaintiff Tsutomu
The judgment in favor of defendant Goddard is affirmed. The judgment in favor of defendant May Department Stores is reversed and the cause is remanded for a new trial as to that defendant.
Shinn, Acting P. J., and Wood (Parker), J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied October 6, 1943.