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District Court of Appeal, Second District, Division 1, California.


Civ. 13860.

Decided: April 07, 1943

Parker & Stanbury, Harry D. Parker, Raymond C. Stanbury, and White McGee, Jr., all of Los Angeles, for appellant. W. I. Gilbert, Jr., of Los Angeles, for respondents.

The instant action is predicated upon injuries sustained by the minor, Carol Ann Brown, when she fell down an elevator shaft in the St. George Apartments in Hollywood. The structure was owned and operated by the George Pepperdine Foundation, and the elevator was serviced by the Oliver & Williams Company, a copartnership, which was in the business of elevator maintenance. During the trial the action was dismissed as to defendant John Burke, the manager of said apartment house, and the jury brought in a verdict in favor of the two remaining defendants, George Pepperdine Foundation and Oliver & Williams Company. Thereafter the court granted plaintiffs' motion for a new trial, and George Pepperdine Foundation alone appeals from the order granting said motion.

The order appealed from did not specify insufficiency of the evidence to sustain the verdict as one of the grounds therefor, and it is conceded that such ground is therefore not available on this appeal. However, respondents state in their brief that they “will justify the order granting a new trial upon the sole ground of errors at law occurring during the trial”; such errors occurring exclusively in the instructions.

The record reveals that the respondents, mother and daughter, were guests at the St. George Apartments, occupying an apartment on the third floor thereof; that Mrs. Brown and her brother left the apartment and, as they were on their way to the elevator (which was self–operating), the child Carol Ann skipped ahead of them. On direct examination Mrs. Brown said she saw Carol Ann push the button of the elevator and pull the outer door open; that the door closed and the child dropped out of sight. When Mrs. Brown reached the elevator door she pushed the button and the elevator came down from the fourth floor. She asked the occupants to hold the elevator on the third floor while she ran down the stairs to the ground floor where she was present when Mr. Burke, the manager, rescued the child from the bottom of the shaft. On cross–examination, Mrs. Brown stated she could not say that she saw the child fall directly into the shaft, but that she saw her body lean forward and disappear. Said witness also testified that at the time she pressed the button to bring the elevator to the third floor she tried to pull the outer door open but was unable to do so.

It was defendants' contention that the accident did not and could not occur in the manner alleged by plaintiffs; that the locking devices were as nearly foolproof as they could be made and that they were found in proper working order immediately after the accident. It was further contended that even if the facts were as plaintiffs asserted, there was no negligence on the part of either defendant. The elevator equipment and locking device were of the best and were inspected weekly by a concern specializing in elevator inspection and maintenance. The facts with regard to the construction of the elevator and its appurtenances were not in dispute. Defendants' theory as to how the child got into the shaft was that she entered the elevator cage and put it in motion; that when it was between floors, she stopped the cage by either pressing the button or by pulling back the cage door; that when the elevator cage was in a certain position between floors, and the cage door was either fully or partly pulled back, there was a small space through which a child of the weight and size of Carol Ann could step or maneuver herself into the elevator shaft and that she fell down the shaft in this way.

Although respondents urge in support of the order granting the motion for new trial that certain instructions were prejudicially contradictory and the entire charge was otherwise confusing and misleading, they also concede that “It is a familiar rule governing appellate courts that they will examine instructions to the jury as a whole. If, when taken as a whole, the instructions form a fair presentation of the law applicable to the case, the judgment will not be reversed for individual inconsistencies, errors or conflicts.”

An examination of the entire charge in the instant case shows that the jury was fully and fairly instructed on all issues. There are some slight inconsistencies and conflicts, but none that amount to prejudicial error. As heretofore indicated, plaintiffs tried the case on one factual theory while defendants urged that the accident could not have occurred as charged by plaintiffs and urged an entirely different claimed factual situation. The jury was clearly admonished that before certain of the instructions were applicable, the jury must decide which version of the facts was true. When the controverted factual situation is taken into consideration, we are impressed that the asserted inconsistencies and conflicts in the instructions were dissipated by the court's admonition as to the applicability of instructions in connection with which other instructions might appear to be in conflict and that such conflicting or inconsistent instructions were to be applied only in the event the jury found that the accident occurred in such a manner as to justify the application of particular instructions.

Our examination of the evidence discloses that the verdict of the jury was sound and the record as a whole fails to reveal any miscarriage of justice. It was therefore error to grant the motion for a new trial.

For the reasons stated, the order is reversed and the trial court is directed to enter judgment for defendants pursuant to the verdict of the jury.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concur.

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