Nettrour v. J. C. Penney Co., No. 19187
| Docket Nº | No. 19187 |
| Citation | 146 Colo. 150, 360 P.2d 964 |
| Case Date | April 03, 1961 |
| Court | Supreme Court of Colorado |
Page 964
Nettrour, individually, Plaintiffs in Error,
v.
J. C. PENNEY COMPANY, Inc., a corporation, Defendant in Error.
[146 Colo. 151] Smith, Pyle, Johnson & Makris, Denver, for plaintiffs in error.
Wood, Ris & Hames, Denver, for defendant in error.
MOORE, Justice.
Plaintiff in error, David Nettrour, to whom we will refer as David, was five years of age at the time of the accident giving rise to this action. He seeks to recover damages for personal injuries sustained by him while riding on an escalator on the store premises of defendant in error, hereinafter referred to as Penney. The issues raised by the pleadings are the usual ones pertinent to actions to recover for personal injuries. Penney denied negligence on its part and affirmatively alleged contributory negligence and unavoidable accident.
At the conclusion of the testimony offered on behalf of David, counsel for Penney moved for dismissal of the action or for a directed verdict on the ground that the evidence was insufficient to warrant consideration of the issues by the jury. The trial court granted the motion and the action was dismissed.
There is but one question presented, namely--was there sufficient evidence introduced at the trial to establish a prima facie case upon which a verdict of the jury in favor of David could be sustained?
In passing upon a motion for a directed verdict the trial court must view the evidence in the light most [146 Colo. 152] favorable to the party against whom the motion is directed. Every reasonable inference to be drawn from the evidence presented is to be
Page 965
considered in the light most favorable to such party. A motion for directed verdict can only be granted where the evidence, when so considered, compels the conclusion that the minds of reasonable men could not be in disagreement and that no evidence, or legitimate inference arising therefrom, has been received or shown upon which a jury's verdict against the moving party could be sustained. Brent v. Bank of Aurora, 132 Colo. 577, 291 P.2d 391; Gray v. Turner, 142 Colo. 340, 350 P.2d 1043.The store operated by Penney occupies several floors with a number of departments on each floor. Merchandise offered for sale includes men's, women's and children's clothing. The customers are invitees while on the store premises. For the accommodation of its customers escalators are employed to carry passengers from one floor to another.
On April 2, 1955, the mother of David went with him and certain others to the Penney store intending to purchase, among other things, some clothing for David. They started from the third floor to the second floor on the escalator. The escalator consists of moving steps which travel at a speed of 90 feet per minute. The steps are guarded by side walls at the top of which are movable balustrades or hand rails for passengers to use in keeping their balance. The stairs being movable and the side walls immovable there is a clearance space between the steps and the walls to prevent friction and wearing.
As David and his mother stepped on the escalator he was by her side and to her right, and she was holding his hand. There was testimony that the mother was holding on to the left-hand rail, and it started and stopped and then started and stopped in a jerking sort of way. While her attention was thus attracted to the left-hand rail she released David's hand. Upon hearing [146 Colo. 153] him call out to her she turned and saw that he was in a position on the escalator as if he had fallen, and his right index finger was engaged or caught between the moving step and the side wall of the escalator, which was quite crowded, and she and others began calling out 'stop the escalator.' She tried without avail to extricate his finger from where it was caught. No one stopped the escalator and realizing that they were nearing the bottom she pulled as hard as she could and disengaged the finger. The force of the pull threw both her...
To continue reading
Request your trial
-
Mile High Fence Co. v. Radovich, No. C--31
...Bros. Co., 155 Colo. 406, 395 P.2d 1; Staley v. Security Athletic Assoc., 152 Colo. 19, 380 P.2d 53; Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964; Drake v. Lerner Shops, 145 Colo. 1, 357 P.2d 624; Field v. Sisters of Mercy, 126 Colo. 1, 245 P.2d 1167; Hooker v. Routt Realty Co.......
-
Schindler Elevator Corp. v. Anderson, No. 14-98-01286-CV.
...other entrapment cases. See, e.g, Eubanks, 294 F.2d at 521 (Otis escalator to run with 1/64 of an inch gap); Nettrour v. J.C. Penney Co., 146 Colo. 150, 360 P.2d 964 (1961) (gap of 1/16 to 1/8 of an inch is 6. Westinghouse, whom Schindler acquired, argued a similar issue in 1965: "[mother's......
-
Fair v. Red Lion Inn, No. 95SC753
...a directed verdict may be entered. McGlasson v. Barger, 163 Colo. 438, 442, 431 P.2d 778, 779 (1967) (citing Nettrour v. J.C. Penney Co., 146 Colo. 150, 360 P.2d 964 (1961)). The complex nature of a question usually reserved for the jury militates against a directed verdict. See id. at 442,......
-
Conrad v. City and County of Denver, No. 82SA267
...under C.R.C.P. 50(a) were to be applied rather than the C.R.C.P. 41(b)(1) procedure and criteria. See e.g., Nettrour v. J.C. Penney Co., 146 Colo. 150, 360 P.2d 964 (1961). On this appeal no party has challenged the correctness of the standards adopted by the trial court. In discussing the ......
-
Mile High Fence Co. v. Radovich, No. C--31
...Bros. Co., 155 Colo. 406, 395 P.2d 1; Staley v. Security Athletic Assoc., 152 Colo. 19, 380 P.2d 53; Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964; Drake v. Lerner Shops, 145 Colo. 1, 357 P.2d 624; Field v. Sisters of Mercy, 126 Colo. 1, 245 P.2d 1167; Hooker v. Routt Realty Co.......
-
Schindler Elevator Corp. v. Anderson, No. 14-98-01286-CV.
...other entrapment cases. See, e.g, Eubanks, 294 F.2d at 521 (Otis escalator to run with 1/64 of an inch gap); Nettrour v. J.C. Penney Co., 146 Colo. 150, 360 P.2d 964 (1961) (gap of 1/16 to 1/8 of an inch is 6. Westinghouse, whom Schindler acquired, argued a similar issue in 1965: "[mother's......
-
Fair v. Red Lion Inn, No. 95SC753
...a directed verdict may be entered. McGlasson v. Barger, 163 Colo. 438, 442, 431 P.2d 778, 779 (1967) (citing Nettrour v. J.C. Penney Co., 146 Colo. 150, 360 P.2d 964 (1961)). The complex nature of a question usually reserved for the jury militates against a directed verdict. See id. at 442,......
-
Conrad v. City and County of Denver, No. 82SA267
...under C.R.C.P. 50(a) were to be applied rather than the C.R.C.P. 41(b)(1) procedure and criteria. See e.g., Nettrour v. J.C. Penney Co., 146 Colo. 150, 360 P.2d 964 (1961). On this appeal no party has challenged the correctness of the standards adopted by the trial court. In discussing the ......