Ward v. J. C. Penney Co.

• Decision Date: 27 January 1966
• Docket Number: No. 37838,37838
• Citation: 410 P.2d 614,67 Wn.2d 858
• Court: Washington Supreme Court
• Parties: Thomas WARD, a minor, by his guardian, John W. Ward, Appellant, v. J. C. PENNEY COMPANY, a corporation, Respondent.

Page 858

67 Wn.2d 858

410 P.2d 614

Thomas WARD, a minor, by his guardian, John W. Ward, Appellant, v. J. C. PENNEY COMPANY, a corporation, Respondent.

No. 37838.

Supreme Court of Washington, Department 1.

Jan. 27, 1966.

Miracle, Treadwell & Pruzan, Howard P. Pruzan, Seattle, for appellant.

Ogden, Ogden, Roberts & Murphy, Raymond D. Ogden, Jr., Seattle, for respondent.

HUNTER, Judge.

This action was instituted by the guardian of a 5-year-old boy, Tommy Ward, to recover for injuries sustained by said minor while riding on defendant's escalator.

In the early evening of August 21, 1961, Tommy Ward and his older brother, age seven, and their mother visited the shoe department of defendant (respondent) J. C. Penney's downtown Seattle store. While their mother was being fitted with a pair of shoes, the two boys left and proceeded to the nearby escalator. One of defendant's employees testified that she twice warned the two boys to cease playing on the escalator, but they again returned where they continued to play without her knowledge.

At this point, the construction of the escalator becomes significant. This was the 'Up' escalator unit, which consists basically of moving steps located between two immobile balustrades. On top of each balustrade is a black rubber handrail, which moves in a synchronized fashion with the steps. A metal track projects from the wall along each side of the escalator well. It is the function of these tracks to support a metal fire curtain, which can be extended horizontally along the tracks and vertically to the floor in order to shut off the escalator well to prevent the spread of fire. In 1948, when the escalator was installed, the Seattle Building Code required the use of such fire curtains. The track in issue extends some 2.4 inches from the wall on the left as you ride up the escalator. The track runs horizontally, and it was in the space between it and the moving handrail that the boy's head was caught.

There was testimony to the effect that Tommy's older brother had ridden up the escalator by resting his body upon the handrail. Tommy apparently followed his brother by holding onto the handrail with both hands, his feet dangling, and his head resting in some manner upon and beyond the edge of the handrail. His head was caught and wedged tightly between the moving handrail and the projecting metal track, resulting in serious injuries to his face, mouth and throat.

The action was tried before a jury, which returned a verdict for defendant. Plaintiff's motion for judgment notwithstanding the verdict or in the alternative for a new trial was denied, and judgment was entered on the verdict. Plaintiff appeals.

Plaintiff first assigns error to the trial court's refusal to permit the introduction of expert testimony to the effect that safety engineers would recognize the juxtaposition of the moving handrail and the projecting metal track as a hazard.

The admissibility of expert opinion testimony has been and continues to be a troublesome problem. See, e.g., Gerberg v. Crosby, 52 Wash.2d 792, 329 P.2d 184 (1958), and authorities discussed therein. The briefs of both parties discuss the matter at length with numerous citations. A review of these authorities leads to the conclusion that the increasing complexity of our society requires a greater use of expert testimony, even concerning matters about which the trier of fact may have a general knowledge. Qualifying this increased use, as stated in Rule 401 of the Model Code of Evidence of the American Law Institute, and discussed in Gerard v. Peasley, 66 W.D.2d 435, 403 P.2d 45 (1965), and Gerberg v. Crosby, supra, at 799, 'is whether the use of inferences, or opinions, in testifying will mislead the trier of fact to the prejudice of the objecting party.' By necessity, the trial court must be permitted a wide discretion in this...