Hillerbrand v. May Mercantile Co.

121 S.W. 326, 141 Mo. App. 122, 1909 Mo. App. LEXIS 271

• Court: Missouri Court of Appeals
• Decided: July 20, 1909
• Status: Published

Opinion

G-OODE, J.

This action was instituted to recover damages for an injury to tbe plaintiff, a minor, suing by next friend. Defendant conducts a large retail department store several stories bigh in the city of St. Louis. One of the means provided for patrons to pass between the first and second floors is a moving stairway or escalador. This device consists of two flights of stairs of easy slope, extending parallel to each other from the first to the second floor, kept in motion by machinery, one ascending as the other descends, and transporting passengers from one floor to the other. The banisters or handrails on either side of the stairs move as the stairs do, and are composed of a rubber casing around an endless interior chain. On the first floor, these handrails and the endless chains they cover, run into boxes some six or eight inches square, and projecting above the surface of the floor from six inches to a foot. Inside the boxes the chains and their rubber coverings run over sprocket-wheels and then up again to the second story. There is evidence to prove the top of one of these boxes was open at the time of the accident in question, and that the aperture was large enough for a grown person’s two hands to be inserted. One day plaintiff, who ivas then a child three years old, was taken by her mother to defendant’s establishment, and while the mother was engaged in making a purchase in close proximity to the foot of the descending stairway, in some way plaintiff’s right hand became inserted in the box into which a handrail descended, was clamped by the handrail, and gradually drawn farther into the opening, and before it could be extricated, her hand and arm were severely lacerated. No witness saw the child’s hand get in the opening, as attention was first directed to her plight by her screams. Some moments elapsed before the machinery could be stopped and her arm drawn out, and meanwhile, the arm was pulled in farther as the rail continued to revolve. After describing the construction of the stairway, the petition alleges defendant knew, or by the exercise of ordinary care would have known, the public, including the child, might visit their store and ride on the stairway; knew the stairs were alluring to children and particularly that the opening in the box was likely to attract them and induce them to put their hands in the hole where the rail was running; that nevertheless defendant carelessly failed to cover the opening and allowed it to remain unguarded; the plaintiff’s right hand was. caught suddenly in said hole between the box and the belt used in propelling the stairway, and her hand was thereby torn and lacerated, causing her great and excruciating pain of both- body and mind, and mangling her so she was crippled permanently. The damages demanded were $4,500. Defendant answered by a general denial.

The main instruction given for plaintiff required the jury to find, in addition to certain undisputed facts, as follows: The moving stairway suddenly caught plaintiff’s right hand; that said hand was caught by the belt in propelling the stairway and was drawn through the hole in the frame of it and thereby injured; that plaintiff was about three years old at the time; that the stairway was attractive to children as defendant kneAV, or by ordinary care would have known, and that children were apt to put their hands into the hole or opening, and be injured; that defendant failed to cover or guard the hole and therein failed to exercise ordinary care for the safety of persons lawfully about the stairway, and plaintiff’s injuries were thereby caused. If the finding was for plaintiff, damages were authorized to compensate her reasonably for the pain of body and mind she had suffered since the injury and for such pain and suffering as the jury might believe from the evidence she would endure in the future. For defendant the court instructed that if the jury believed the hole in which plaintiff put her hand was necessary to permit the passage of the handrail or banister, and was the usual and ordinary opening maintained by persons who exercised ordinary care, through which handrails like the one mentioned in the evidence ran, and snch an opening was in general use, the verdict should he for the defendant- that defendant was not liable for plaintiff’s injury if it resulted from a cause which defendant, by the exercise of ordinary care, would not reasonably anticipate, and if the jury found defendant could not reasonably have anticipated the injury, by the exercise of ordinary care, the verdict should be in its. favor. The last two instructions were in the form requested by defehdant except slight and immaterial changes. The court also instructed that if the jury believe the escalader and its appliances were constructed in the usual and ordinary way, and guarded so far as practicable, defendant was not guilty of any negligence and the verdict must be for it. An instruction was given correctly defining negligence and ordinary care and also an accurate instruction regarding the credibility of witnesses and how their testimony should be weighed. A request to direct a verdict in defendant’s favor was refused and one was returned for plaintiff in which her damages were assessed at $700. Judgment having been entered accordingly, defendant appealed and assigns as errors that the verdict is excessive, should have been for defendant instead of plaintiff and wrong rulings on the request for instructions.

1. Plaintiff was entitled to recover if leaving uncovered the hole in the box wherein the handrail ran was an omission by defendant of its duty to use ordinary ■ care to have its premises reasonably safe at a place where children Avere expected to come. Whether or not defendant discharged its duty in this regard, depends upon whether the aperture and the rail running into it were dangerous to a child who meddled with them and so likely to excite the curiosity of children and induce them to meddle, that a person of ordinary prudence would have anticipated and guarded against the risk. The contrivance was not unreasonably dangerous, if dangerous at all, to persons of full discretion, and counsel for defendant say it was not to children in its ordinary operation and that there was no evidence it tended to attract them into playing with it. It is true no testimony was given that other children had been allured by the stairway or the rail running into the box; but the jury might say from their knowledge of the instincts of childhood that the construction and movement of the machinery was likely to excite a small child’s curiosity and allure it into thrusting its hand into the box, or into laying its hand on the banister and permitting it to be carried in by the banister’s motion; might say too the opening was a place of danger for an inserted hand. An expert witness introduced by defendant said a person’s hand might get into the hole but could only do so if the person stooped. No doubt a grown person would need to bend down to thrust his hand into the box, and maybe a child of three years of age would need to do this. That matter is unimportant; for considering the ways of children, Ave hold it Avas so likely some child would be attracted into playing with the rail and getting its hand caught in the hole, as to render the question of whether defendant should have anticipated such an incident, one for the jury. The notion that' because it was not proved other children had been allured by the contrivance, the jury had no evidence from which to infer the likelihood of such an occurrence is unsound. By that reasoning, if the first child who visited the machinery got hurt, then no matter how dangerous the device was, there could be no recovery because it would be impossible to prove children had been attracted before. In our judgment, common knowledge of the nature of children sufficed as evidence for the jury that due care was omitted in failing to cover the box. Some of the testimony tended to prove the aperture was a foot above the floor and if this was true, a small child would not have to stoop much to put its hand in the box. The gravamen of the petition is negligence in failing to screen or guard tbe opening, and it is immaterial whether plaintiff intentionally thrust her hand in the box or got it in accidentally, for she was too young to be guilty of contributory negligence. Proprietors of premises who invite children on them, must use care to keep them reasonably safe, not omitting precautions against injury from childish impulses. [Nagel v. Railroad, 75 Mo. 653; 1 Beven, Neg. (3 Ed.), pp. 161 et seq.; 1 Thompson, Comm. on Neg., secs. 1024 to 1051, inc., and citations.] When extended in favor of trespassing children, the rule has been criticized on the ground that the proprietor is under no duty to keep his premises safe for trespassers, whether they be children or adults. This criticism does not concern us in the present case, as plaintiff was in the store by invitation, and it is unquestioned law that a person who invites children on his property is liable if he has not used due care to provide for their safety. As a standard treatise says: “In such an inr stance the rule is clear because the child is not a trespasser, but the owner of the property, by inviting him to come on the premises, has assumed the duty of exei’cis-:ing reasonable care to the end that he sustain no injury in consequence of dangerous pitfalls, attractive nuisances or the like.” [1 Thompson, Neg., sec. 1050.] This doctrine is but one phase of the wider doctrine that an owner must keep his premises reasonably safe for the use of people whom he invites to come on them — an application of the general doctrine with special reference to the nature of children, and in accordance with the principle that what constitutes due care in a given instance depends on the degree of danger to be apprehended. [Bowen v. Railroad Co., 95 Mo. 268; Quick v. Elevator Co., 125 Mo. 279.] Because children are more heedless and have less discretion and capacity to avoid danger than adults, more care must be exercised by others for their safety. This rule was declared in another aspect, but without weakening the decision as an authority applicable to the present case, in Boland v. Railway Co., 36 Mo. 484, wherein our Supreme Court, speaking through Judge Wagner, said it would be unjust to require of a child with little capacity and discretion the same precaution and prudence which reasonably may be expected of older persons; and therefore one using dangerous instruments, machinery or vehicles, when he knows infants, idiots or others of imperfect discretion, are in close proximity, is compelled to ase a degree of caution, skill and diligence not required of him in the case of mature persons.

2. We agree the testimony shows the stairway in defendant’s establishment was similar to those in general use, but this circumstance does not exonerate defendant. The complaint is not of the pattern or kind of stairway, or that it or its appliances were needlessly dangerous if arranged and operated in a proper manner; but that the opening of the box into which the handrail revolved was left uncovered when, out of proper regard for the safety of children, it should have been covered. Instead of the evidence showing it was usual in well-managed establishments to leave the box open, defendant’s own witnesses testified the other way and that these openings, and indeed the very one in which plaintiff was hurt, were usually screened by a wire gauze which encircled the handrail without quite touching it, the purpose being to prevent anything getting into the opening — “dirt, handkerchiefs, unbrellas, etc.” As to whether there was any screen over the aperture the day of the accident, or if not, when it had been removed, or pushed down so as to be ineffective, or whether plaintiff herself pressed it down, the evidence would support different inferences. One of the employees in the store testified the wire gauze had been torn but he did not know whether this happened before or after the accident. It was clear defendant was not entitled to a verdict as a matter of law, on the ground that the stair-Avay and its appliances were in tbe condition justified by common use or that tbe box was properly screened. These matters were for tbe jury and '«’■ere submitted in accurate instructions.

3. Tbe court is said to have erred in tbe main instruction for plaintiff, in leaving it to tbe jury to say whether her band was caught suddenly “by tbe belt used in propelling tbe stairway,” since there was no evidence it was so caught. Tbe witnesses used tbe words “belt,” “handrail” and “banister” interchangeably to designate tbe endless chain and its covering which ran into tbe box and around tbe sprocket-wheel. Though no one saw bow plaintiff’s band got into tbe box or was caught, tbe evidence warranted an inference that it was suddenly caught by tbe moving rail in consequence of having been thrust into tbe opening in childish play or accidentally. The main instruction was substantially correct and we find no reversible error in it.

4. Complaint is made of tbe second paragraph in tbe instruction on tbe measure of damages, counsel insisting there was no evidence tending to prove plaintiff would endure future pain or suffering. It is to be observed tbe court did not authorize damages for permanent injury or suffering, but only for such past and future suffering as tbe jury might find from tbe evidence plaintiff bad or would endure. There was testimony that when a knife, spoon or other article was put into her injured band she would act like she was hurt and transfer tbe article to her left band; that she continued to do this to tbe date of tbe trial. Her father testified she bad acted ever since tbe injury as if she was suffering. These items of testimony justified tbe court in leaving it to tbe jury to say whether she would suffer pain in tbe future.

5. Tbe verdict is challenged as excessive but. we think it was not. Plaintiff’s injury did not involve tbe bones or ligaments of her band, but though tbe laceration was superficial, it was extensive, and caused severe pain for weeks, and so affected the band as to change plaintiff from a normal right-handed girl into a left-handed one. Portions of the skin, or as one witness said, the flesh, had to be clipped away with scissors. She. was under treatment by a physician for four weeks and when her hand was dressed day after day, would scream so loudly from the pain as to be heard a block away. At the time of the trial she seemed to have but little use of the injured member and handled articles with it awkwardly. She still acted as though it hurt her. The amount of the verdict was not so unreasonable as to call for interference by us against the opinion of the jury and the trial judge.

Judgment will be affirmed.

Reynolds, P. J., and Nortoni, J., concur.