Public Service Co. of Colorado v. Petty

• Decision Date: 05 May 1924
• Docket Number: 10925.
• Citation: 226 P. 297,75 Colo. 454
• Parties: PUBLIC SERVICE CO. OF COLORADO v. PETTY.
• Court: Colorado Supreme Court

226 P. 297

75 Colo. 454

PUBLIC SERVICE CO. OF COLORADO v. PETTY.

No. 10925.

Supreme Court of Colorado

May 5, 1924

Rehearing Denied June 2, 1924.

Error to District Court, Boulder County; Neil F. Graham, Judge.

Action by Glenn Curtis Petty, infant, by his father and next friend Carl D. Petty, against the Western Light & Power Company, for which the Public Service Company of Colorado was substituted. Judgment for plaintiff, and defendant brings error.

Affirmed.

W. B Rutledge, Jr., and Goss, Kimbrough & Hutchinson, all of Boulder, for plaintiff in error.

Rinn &amp Archibald, of Boulder, for defendant in error.

SHEAFOR, J.

This writ of error is prosecuted by plaintiff in error to have reviewed a judgment in favor of the defendant in error for the sum of $4,500, on account of alleged negligence of the defendant. Supersedeas applied for. The parties are here designated as in the lower court. The facts as they appear from the record are:

The defendant was maintaining and operating an electric light plant in the city of Boulder. It maintained an office and storeroom in which the monthly bills of its patrons, were paid, and in which it exhibited electrical appliances which it kept for the retail trade. That many women, with their children, came to the office and store on or before the 10th day of each month to pay their bills for electricity used that they might receive a 5 per cent. discount. That the defendant placed the office and counter at which the bills were paid at the rear of its storeroom. That small children sometimes attended and sometimes unattended, frequented this storeroom on or just prior to the 10th day of each month, to which the defendant made no objection, although fully aware of the fact. That there was an aisle leading from the entrance door through the storeroom to the pay office. The plaintiff child was 18 months old on March 7, 1922, when it sustained the injuries complained of. On that date, or shortly prior thereto, the defendant had placed on the aisle, in the office and storeroom, a Meadow Lark electric washing machine, and left the door thereto open, exposing the wheels, cogs, and other mechanism of the machine; that this machine was placed at a height of one to two feet above the floor, and was in operation at the time of the accident, being driven by electrical power provided by the defendant, with no attendant in charge of the same, and it was in no way screened or glassed in or otherwise guarded. That on the day plaintiff was injured its mother led it into the storeroom and up to the cashier's window. That she let go of the child's hand for the purpose of taking out her pocketbook and paying her bill; that while she was so engaged the plaintiff wandered away and up to the washing machine in question, placing its left hand in the cogs of the machine. The tips of the first three fingers of its hand were badly crushed and mangled, and were tinally amputated slightly above the first joint. The end of the fourth or little finger was also crushed, causing the loss of the nail.

The negligence alleged was in permitting the machine to be so placed and left running with the cogwheels exposed. There had been one trial of the action prior to the judgment in this case, a verdict rendered in favor of the plaintiff for $6,000, the verdict set aside, and a new trial granted on the ground that the verdict was excessive. At the conclusion of the plaintiff's evidence at the second trial the defendant moved for a nonsuit, and at the conclusion of all the evidence moved for a directed vereict, both of which were overruled. The defendant requested the court to give certain instructions, which request was refused.

The defendant's theory of the case, as embodied in its instructions requested, is as follows:

That the defendant was conducting its shop, exhibiting and demonstrating its machines and appliances in the usual and customary way. That it owed no duty to the infant plaintiff to guard him and prevent him from leaving his mother and going to the washing machine unattended. That the child's conduct in so leaving his mother, and the mother's conduct in permitting the child to leave her and approach the machine unattended, were unusual, and could not, in the circumstances, possibly have been anticipated by the shop employés. That it was guilty of no negligence. That the proximate cause of the injury was the mother's failure to watch her child, and to prevent him from injuring himself by tampering with or handling the machines and appliances that were being demonstrated and displayed in the shop.

The authorities cited by defendant in support of its position are not in accord with the general rule as established by the courts of this country, and are not in harmony with the decisions in this jurisdiction. In the case of Kopplekom et al. v. Colorado Cement Pipe Co., 16 Colo.App. 274, 278, 64 P. 1047, 1048 (54 L.R.A. 284), it was said:

'If an owner

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