May Department Stores Co. v. Reynolds

• Decision Date: 28 February 1944
• Docket Number: No. 12721.,12721.
• Citation: 140 F.2d 799
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: MAY DEPARTMENT STORES CO. v. REYNOLDS.

140 F.2d 799 (1944)

MAY DEPARTMENT STORES CO. v. REYNOLDS.

No. 12721.

Circuit Court of Appeals, Eighth Circuit.

February 28, 1944.

James E. Garstang, of St. Louis, Mo. (Carter, Bull & Garstang, of St. Louis, Mo., on the brief), for appellant.

Jesse W. Barrett, of St. Louis, Mo. (Joseph J. Howard, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This is the second time this personal injury case has come before this court for review. Upon the first trial, the District Court directed a verdict for the defendant, May Department Stores Company. The plaintiff appealed, and this court reversed upon the ground that, under Missouri law, the case should have been submitted to the jury for determination. Reynolds v. May Department Stores Co., 8 Cir., 127 F.2d 396, certiorari denied 317 U.S. 639, 63 S.Ct. 31. Upon the retrial of the case, the District Court submitted it to the jury, which returned a verdict in favor of the plaintiff for $2,500. The defendant has appealed, contending that, under Missouri law, the case should not have been submitted to the jury. It is also asserted that the trial court erred in its instructions.

The principal question for decision is whether the evidence upon the second trial differed sufficiently from the evidence on the first trial to make the previous ruling of this court in this case inapplicable. This question must, we think, be answered in the negative.

The facts out of which this controversy arose are stated in the former opinion of this court, and will not be repeated. It is enough to say that the plaintiff, when four years of age, on February 17, 1938, was with his mother upon an escalator in the defendant's department store in St. Louis; that as they approached the top of the escalator, the plaintiff fell forward with his hands outstretched; that one of the fingers of his right hand passed into an aperture between the teeth or tines of the combplate, under which the steps of the escalator moved, and was torn off. His hand was injured in other respects. The plaintiff asserted in his complaint that his injuries were attributable to the defendant's negligence. The defendant denied that it was negligent in any respect.

The defendant contends that, upon the second trial, it conclusively appeared: (1) that the handrails of the escalator furnished usable support for a child of the plaintiff's height; (2) that the plaintiff was on the third step from the top of the escalator when he fell, and that the step in front of him was only two and one-half inches high, and not almost up to his knees as the former opinion of this court stated; (3) that he did not press forward and fall over a high step; and (4) that an attendant could have done nothing to prevent the injury, since the escalator could not have been stopped before the plaintiff's hand reached the comb-plate, and he was attended by his mother, who was entirely familiar with the escalator.

Whether the handrails of the escalator — which the evidence shows were at a height best adapted for their use by the average adult, and about the height of the plaintiff's head — furnished adequate support for a child of the age and height of the plaintiff, was a question of fact. The evidence does not definitely disclose on what step the plaintiff was standing when he fell. His mother's testimony places him on "about the third step from the top." The physical facts as to his height and the way in which he fell would have justified an inference that he was farther away than the third step from the comb-plate at the time of his fall, and, if he was, the height of the step in front of him may have been to...