Weston v. Gold & Co.

• Decision Date: 30 January 1959
• Docket Number: No. 34393,34393
• Citation: 167 Neb. 692,94 N.W.2d 380
• Parties: Michael WESTON, a minor, by William M. Weston, his father and next friend, Appellee, v. GOLD & COMPANY, a corporation, and Otis Elevator Company, a corporation, Appellants.
• Court: Nebraska Supreme Court

Page 380

94 N.W.2d 380

167 Neb. 692

Michael WESTON, a minor, by William M. Weston, his father and next friend, Appellee, v. GOLD & COMPANY, a corporation, and Otis Elevator Company, a corporation, Appellants.

No. 34393.

Supreme Court of Nebraska.

Jan. 30, 1959.

Syllabus by the Court

1. In an action for damages for negligence the burden is on the plaintiff to show by direct or circumstantial evidence that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff's injury or a cause which proximately contributed to it.

2. In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.

3. Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.

4. The doctrine of res ipsa loquitur proceeds on the theory that, under special circumstances which invoke its operation, the plaintiff is unable to specify the particular act of negligence which caused the injury, but if the petition alleges particular acts of negligence, then the plaintiff, in order to recover, must establish the specific negligence alleged, and the doctrine of res ipsa loquitur cannot be applied.

5. Before the doctrine of res ipsa loquitur can be applied it must appear that the negligent cause or thing which produced the injury complained of was wholly and exclusively in the possession, and under the control or management, of defendant.

6. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

7. If a motion for directed verdict made at the close of the evidence in a case should have been sustained for want of evidence to support a verdict in favor of the party against whom made, it is the duty of the court on motion for judgment notwithstanding the verdict timely made to sustain such motion to set aside the verdict and to render judgment pursuant to the motion for directed verdict.

Stewart, Stewart & Calkins, Floyd A. Sterns, Woods, Aitken & Aitken, Lincoln, for appellants.

Jack Devoe, Merril R. Reller, John McArthur, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action for damages by Michael Weston, a minor, by William M. Weston his father and next friend, plaintiff and appellee, who will hereinafter be referred to as plaintiff, against Gold & Company, a corporation, and Otis Elevator Company, a corporation, defendants and appellants. The case was tried to a jury and a verdict was returned in favor of plaintiff and against both defendants for $5,000. The defendant Gold & Company, which will hereinafter be referred to as Gold, filed an alternative motion for judgment notwithstanding the verdict or for a new trial. The defendant Otis Elevator Company, which will be hereinafter referred to as Otis, filed separately a motion for judgment notwithstanding the verdict and one for a new trial. The motions of these parties were overruled. The defendants separately appealed and each has separately set out alleged errors which it contends entitle it to have the judgment reversed. These assignments, or such of them as require consideration herein, will be discussed along with the facts as they have been presented by the record and the controlling legal principles.

Factually, as disclosed by the record and necessary to disclose herein, the action grew out of an accident which occurred on July 13, 1954, on an escalator in a department store owned and operated by Gold. As to this factual statement there is no substantial dispute. The escalator or portion involved descended on an incline from the second to the first floor. It was installed by Otis in 1947 and 1948. It was regularly inspected by employees of Otis but there was no evidence that the operation was under its control. Gold was the owner and in control of operation following installation to and including July 13, 1954. The escalator, as it passed downward between the two floors, was a series of steps and between the back of each step and the front of the next above was a riser. There was no vacant or open space between the step and riser. The escalator was operated between stationary panels on each side which were estimated at from 2 to 3 feet apart. There were handrails on top of the panels. The movement of the escalator was over fixed tracks which were not exposed to view. The steps in their turn as they reached the first floor passed thereunder and out of view. The normal space between the ends of the steps and risers and the enclosing panels on each side was from 3/32 to 5/32 of an inch. The purpose of the escalator was to provide passage for customers of Gold from the second to the first floor. In other words, it was for the purpose of allowing customers to step on a step and there remain until that step had reached the first floor. There was nothing protective against the space between the ends of the steps and the adjacent panels except the narrowness of the space. It is true that there was a trim molding extending from the top of the escalator to a point near the first floor, at a distance of about 1 inch above the front and 10 to 11 inches above the back of the steps of the escalator, but the defendants have not contended that this had a protective purpose.

On July 13, 1954, the plaintiff and his mother got on the escalator at the second floor and proceeded to descend to the first floor. The plaintiff, facing forward, preceded his mother. In some manner, when they were near the first floor the right shoe and foot of plaintiff became caught between a step or riser or both and the panel on the right side, and his large toe was amputated and his foot was otherwise injured.

The plaintiff pleaded that the cause of the accident was negligence on the part of the two defendants. The pleading in this respect is found in paragraphs 5, 6, and 7 of the petition as follows:

'5. When approximately 3 or 4 steps from the first floor of said store, and while the said escalator was still in motion, plaintiff's right foot was caught and held in a void created by the edge of the step and the sidewall of said escalator; that the said defendants and each of them, were careless, and negligent in that they failed to install, equip, or erect said escalator with any protective devices in preventing a void occurring between the edge of the step and the sidewall of said escalator.

'6. That the defendants, and each of them, did negligently, carelessly, improperly and unlawfully design, construct, install, maintain and operate said escalator in a dangerous, unsafe and hazardous condition, in that as the steps approached the floor there was a void created between the edge of the step and the side wall of said escalator large enough to catch the toes or front part of a shoe of this plaintiff thereby making it hazardous for persons using said escalator and especially this plaintiff.

'7. That all times herein mentioned defendants and each of them knew, or in the exercise of reasonable care under the circumstances should have known, of the dangerous and hazardous condition caused by said void and that said defendants, and each of them, at all times herein mentioned failed and neglected to warn the plaintiff or take any means to protect the plaintiff about and from the aforesaid hazardous and dangerous condition.'

The answers, to the extent necessary to refer to them herein, are that Otis generally denied the allegations of the petition, and Gold generally denied the allegations of the petition and pleaded that the accident was the result of negligence on the part of plaintiff and his mother.

The testimony given to support the allegations of negligence was very brief. The mother of plaintiff testified substantially that the plaintiff, then of the age of 5 years, got on the escalator ahead of her and that he stood quietly on the downward journey; that when they came near the bottom she saw a crack approximately 1 1/2 inches wide on the side between the end of the step or riser and the panel; and that the toe of plaintiff's shoe was caught in this crack.

There is no direct testimony as to the cause of this claimed separation.

The testimony of witnesses for the defendants was to the effect that such a wide separation was impossible in the light of their knowledge of the construction of the escalator.

The shoe worn by plaintiff had a rubber sole and in this connection the defendants' witnesses substantially testified that in their opinion the toe of the shoe could not have become engaged as it was except by contact and pressure into the space between the step and panel made by the plaintiff himself. The testimony of defendants negatived any contention that there was any defect in construction of the escalator or in its condition for other reasons at the time.

On the evidence here summarized the court submitted the issue of negligence of the defendants to the jury.

Both defendants insist that under no theory of pleading or proof is the evidence sufficient to sustain a verdict holding them or either of them guilty of negligence. It should be pointed out that from an examination of the instructions given it may not be said with certainty whether it...