Peterson v. Richfield Plaza

• Decision Date: 18 April 1958
• Docket Number: No. 37261,37261
• Citation: Peterson v. Richfield Plaza, 252 Minn. 215, 89 N.W.2d 712 (Minn. 1958)
• Parties: Mark Christian PETERSON, a minor, by Theodore W. Peterson, his father and natural guardian, and Theodore W. Peterson, individually, Respondents, v. RICHFIELD PLAZA, Inc., Defendant, New England Furniture Company, Appellant.
• Court: Minnesota Supreme Court

Page 712

89 N.W.2d 712

252 Minn. 215

Mark Christian PETERSON, a minor, by Theodore W. Peterson his father and natural guardian, and Theodore W Peterson, individually, Respondents, v.RICHFIELD PLAZA, Inc., DefendantNew England Furniture Company, Appellant.

No. 37261.

Supreme Court of Minnesota.

April 18, 1958.

Syllabus by the Court.

1.In order to establish negligence by circumstantial evidence, plaintiff need not exclude every other reasonable hypothesis, but a jury may not be permitted to guess as between two equally persuasive theories consistent with the circumstantial evidence.Reasonable minds, functioning judicially, must be able to conclude from the circumstances that the theory adopted by the verdict outweighs and preponderates over every other theory.Tested by this rule, the verdict is justified by the evidence.

2.The rule we follow with respect to the degree of care required to eliminate conditions on real property which are hazardous to children is the same whether the child is a trespasser or licensee.

3.The negligence of a parent is not imputable to a child in an action brought for the benefit of the child to recover for personal injuries.

4.The negligence of a mother in failing to watch a child is not an intervening superseding cause under the facts of this case.

5.When an attending physician, to whom a patient has gone for treatment of an injury or illness, is called as a witness, the physician may testify as to the history of such illness or injury given him by the patient for the purpose of diagnosis or treatment of such injury or illness, whether such statement relates to conditions or symptoms existing at the time of the consultation or to past symptoms or conditions, as long as they relate to the injury or illness for which the patient seeks treatment and are relevant to the subject matter involved in the inquiry.

Meagher, Geer, Markham & Anderson, David W. Nord and O. C. Adamson, II, Minneapolis, for appellant.

Harold J. Sorensen and Herbert C. Davis, Minneapolis, for respondents.

KNUTSON, Justice.

This is an appeal from an order of the trial court denying defendant's motion for judgment notwithstanding the verdict or a new trial.

DefendantNew England Furniture Company has for many years been engaged in the business of operating a furniture store in Minneapolis.On February 24, 1954, it opened a suburban store in Richfield.The store building was owned by defendantRichfield Plaza, Inc.The case originally was commenced against both defendants to recover damages for injuries sustained by Mark Christian Peterson, a child of tender years, when he was alleged to have fallen from a balcony at the rear of the store building.At the close of all the evidence, the court dismissed the case as to Richfield Plaza, Inc. Inasmuch as the propriety of so doing was not argued in appellant's brief, we shall refer to the New England Furniture Company as defendant.

At the rear of the store involved was a balcony, 11 feet above the main floor, running the entire width of the store.A railing 2 feet 8 1/2 inches high was erected in front of this balcony.The railing consisted of a horizontal bar supported by upright metal bars, one-half inch square, which were fastened to the floor at the bottom and to the railing at the top.These bars were spaced 11 1/2 inches apart.The balcony was reached from the main floor by means of a stairway located somewhere near the center of the balcony.The stairway was in the form of an inverted T, the bottom 2 wings running parallel with the balcony to a common landing about halfway up to the balcony.From this landing a single stairway proceeded at right angles through the balcony, emerging about halfway between the front and rear of the balcony.The edge of the balcony, where the stairway cut through it, was protected by a railing identical with that in front of the balcony which has been described.

The portion of the balcony to the left of the stairway, as a person proceeded upward, was used for an office.The other side of the balcony was used to display juvenile furniture.As a person reached the head of the stairs there was a cashier's counter about 4 or 5 feet to his left.Behind this counter or shelf was the office space, in which were located a credit desk and other office furniture.The office space was entered through a swinging door or gate about 20 inches wide, which was next to the railing at the edge of the balcony.The hinges on the door were on the side away from the railing.It was hinged so that it could swing either way and had no lock or other device to keep it shut.This door was located almost directly above the bottom step on the main floor of the left wing of the stairway as one faced the balcony.

At the time of the accident giving rise to this litigation, Mark Peterson was about 2 years old.His mother, Evelyn Bernice Peterson, was employed by defendant as a cashier.On the evening of April 17, 1954, Theodore W. Peterson, Mark's father, called at the store about closing time to take his wife home.He brought Mark with him.When he arrived at the store he was informed that his wife had purchased two chairs and that he was to pick them up on a loading platform to the rear.He inquired of Marvin N. York, the store manager, what he could do with Mark, and York told him that he would watch Mark.At that time Mrs. Peterson was counting money in the office.York went about his business of closing up the store, leaving Mark alone.Mrs. Peterson heard him whimpering on the main floor so she went down and carried him up to the office with her.She placed him in a chair at a desk behind the place where she was working at the cashier's cage.Her 13-year-old daughter, Gwen Peterson, who had come into the store after Theodore Peterson and Mark, then arrived at the office, and Mrs. Peterson told her to watch Mark.The mother then turned her back on the children and went back to her work.Gwen asked if she could help her mother but was told to watch Mark.Gwen, however, left her place by Mark and came over to where her mother was working.The mother then shortly heard a squeak, such as is made by the swinging door when it is moved, and shortly thereafter she heard a thud.She looked and saw that Mark was gone and then went to the railing and saw Mark lying on the floor below with one foot on the bottom step of the stairway.

No one actually saw Mark fall.There is evidence from which the jury could find that the manager of the store, as well as the president of the New England Furniture Company and his wife, prior to the time that Mark fell, had discussed the dangerous nature of the railing in so far as children were concerned.It was known that children accompanied their parents to the balcony when they came there to pay bills and for other reasons.While the office was not intended to have children in it, Ray Holt, a salesman for the company, testified that he had seen children in the office a number of times.Mr. York, the manager, testified that he had not seen children in the office during the 7 weeks the store had been open.Mrs. Peterson said that 6 or 7 times previous to the accident children had gone past the swinging door and that she had taken them out.

Mark suffered a skull fracture in the fall.The jury returned a verdict for plaintiff.No question is raised here as to the amount of the verdict so a more detailed discussion of the injuries is unnecessary.

Defendant's contentions are: (1) That the evidence, being entirely circumstantial, is insufficient to establish negligence on the part of defendant; (2) that the law applicable generally to trespassing children is inapplicable where the child is accompanied by its parents; (3) that the parent's failure to supervise a child, when the parent knows that the child is in a place of danger, constitutes an intervening efficient cause; and (4) that a physician may not relate hearsay declarations made to him as to past symptoms of the patient's illness.

1.The degree of proof required to establish negligence by circumstantial evidence has been stated frequently by this court and is not seriously in dispute by the parties to this litigation.Many of our cases are collected in Smock v. Mankato Elks Club, 203 Minn. 265, 266, 280 N.W. 851, 852, ¹ where we said:

'* * * It was not necessary for the plaintiff to exclude every other reasonable hypothesis by the circumstantial evidence which she introduced but a jury may not be permitted to guess as between two equally persuasive theories consistent with the circumstantial evidence.The evidence must be something more than consistent with the plaintiff's theory of how the accident occurred.Reasonable minds functioning judicially must be able to conclude from the circumstances that the theory adopted by the verdict outweighs and preponderates over any other theory.'

It is defendant's contention that the circumstantial evidence is as consistent with the theory that Mark fell down the stairs as that he fell through the railing; that, inasmuch as there is no claim that the stairway itself was negligently constructed, the evidence is as consistent with a theory upon which no claim of negligence can be predicated as it is with a theory upon which negligence can be based; and therefore, that the verdict is based on speculation and conjecture.

In order to fall down the stairway and be in the place where he was found, the boy would have had to go through the gate; walk around the railing protecting the top part of the stairway; walk or fall from the top of the balcony to the landing halfway down to the floor; and then fall down the balance of the stairway, which ran at right angles to the top section.The jury was justified in concluding that it was more likely that he fell through the railing near the door, which was directly above the place where he was found.Mrs. Peterson heard only one thud.The severity of the injury would be...