Keesecker v. G.M. McKelvey Co.

• Court: United States Court of Appeals (Ohio)
• Citation: 27 N.E.2d 787,64 Ohio App. 29
• Parties: KEESECKER v. G. M. McKELVEY CO.
• Decision Date: 14 February 1940

64 Ohio App. 29
27 N.E.2d 787

KEESECKER
v.
G. M. McKELVEY CO.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Feb. 14, 1940.

Action by one Keesecker, an infant, against the G. M. McKelvey Company for personal injuries. From a judgment for defendant, plaintiff appeals.-[Editorial Statement.]

Judgment reversed, and cause remanded.

[27 N.E.2d 787]

C. W. Osborne and E. L. Williams, both of Youngstown, for appellant.

Manchester, Ford, Bennett & Powers, of Youngstown, for appellee.

ROSS, Presiding Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Mahoning county, Ohio.

The final journal entry in this case in the trial court is one of the most peculiar specimens we have had occasion to examine. As it has a direct bearing upon the conception of the case by the trial judge, we quote it in full:

‘This day came on for hearing the motion for new trial fined by plaintiff, and the court after due consideration overrules the same; as to the question raised by counsel for plaintiff as to claimed error in the charge on pages 12 and 13, the court follows ‘Jones on Evidence,’ (3 Ed.), Section 134, at page 177, and citations in footnote, and [ Hossler v. Trump] 62 Ohio St. 139, at page 145 [56 N.E. 656], and 1 Hanna Ohio Trial Evidence, Section 15, at pages 13 and 14.

‘And the court further, after further consideration, finds upon the record and upon the undisputed facts in the record that the defendant's employee was not a

[27 N.E.2d 788]

trespasser upon the premises; and finds further that, applying the principle of Hamden Lodge v. Gas Company [127 Ohio St. 469, 189 N.E. 246], there is no evidence requiring the submission of that issue to the jury, and that defendant is entitled under the evidence to a directed verdict and final judgment.

‘It is therefore considered that judgment be and is hereby rendered for defendant upon the verdict of the jury and upon the record, and that defendant recover its costs taxed at $.... against plaintiff.

‘To all of which plaintiff excepts.’

We pass this, however, without further comment.

This case was once before the Court of Appeals of Mahoning county. That court at that time was called upon to consider a judgment in favor of the plaintiff in the amount of $13,000. The Court of Appeals reversed the judgment for the reason that the issue of negligence was presented to the jury and the court found as a matter of law that the employee of the defendant could not be held to reasonably anticipate that a child five and one-half years of age would go to a door and stumble down a flight of steps. The case was remanded to the Court of Common Pleas for trial on the issues of whether the defendant through its employee was a trespasser and, if so, whether the injuries to the plaintiff were the direct and proximate result of such trespass.

The petition was amended to conform to the mandate of the court and trial was had upon these issues.

In view of the acquiescence of counsel in the conclusions of the Court of Appeals of Mahoning county, we are not here required to consider whether the issue of negligence should have been submitted to the jury as would have been necessary had not such issue been abandoned by counsel for plaintiff. New York Life Ins. Co. v. Hosbrook, 130 Ohio St. 101, 196 N.E. 888, 118 A.L.R. 1283.

Our conclusion in the case as it is now presented may not therefore be taken to any extent as an acquiescence in the conclusions previously expressed upon the case as it was first presented to the Court of Appeals.

Coming, then, to consider the present review, isolated from its previous history, we find that the plaintiff, a child (at the time of filing the original petition) some five and one-half years of age, lived with its parents at 356 Crandall avenue, Youngstown, Ohio; that as a part of the construction of the house in which plaintiff lived, a large sunroom had been placed across the portion of the house facing Crandall avenue; that the entrance to this room was gained by means of a flight of five steps, rising from a private driveway, upon the property of the plaintiff's parents, which extended along the west side of the house.

Sometime previous to the 29th of May, 1933, the plaintiff had experienced an operation for brain tumor. Previous to the operation the child had been mentally and physically helpless. After the operation, her condition very materially improved, so that she was able to walk and run and showed evidence of some mental ability. She was permitted the free use of the sunroom in which she was apparently secure, in that she did not have either the physical or mental capacity to open the only door leading to the steps.

The defendant operates a department store in the city of Youngstown. On the day noted, one of its delivery wagons stopped opposite the house of plaintiff, and two of its employees alighted from the truck, each with a package from the defendant's store. Each package was addressed to the residence of a next door neighbor of plaintiff's parents. Owing to some...