TAKASHI KATAOKA ET AL v. MAY DEPARTMENT STORES CO ET AL (1943)

This action is brought to recover damages for personal injuries suffered by plaintiff, Takashi Kataoka, who was, when he was injured, a boy four years of age. The first three counts of the complaint set forth, in varying forms, his cause of action to recover damages for his own injuries. In a fourth count, plaintiff Tsutomu Kataoka, who is the father of the other plaintiff, seeks recovery of liabilities he has incurred for medical, hospital and nursing treatment for his son. In the following opinion the word “plaintiff” will be used to designate the plaintiff Takashi Kataoka, unless otherwise indicated. Both plaintiffs appeal from a judgment against them entered after a directed verdict in favor of defendants.

The defendant corporation conducts a large department store in the city of Los Angeles. At the time plaintiff was injured this store had, upon its third floor, a department selling infants' and children's wear, for babies and for children between the ages of two and six. Plaintiff's mother went to this department to exchange a suit bought for another of her children, taking plaintiff with her. While she waited for and talked to the manager of this department (defendant Goddard) the plaintiff was walking around at a distance of about 15 feet from her. In the store were a series of escalators for carrying the public from floor to floor, and the place where plaintiff was walking around on the third floor was quite near to the lower end of the escalator coming down from the fourth floor to the third floor. When plaintiff's mother started to talk to defendant Goddard she called plaintiff to come to her. He was then two or three feet from the escalator and she saw him come two or three feet toward her. After that she talked to Goddard two or three minutes without observing plaintiff. At the end of that time she heard plaintiff cry and she and Goddard rushed to him and found his right hand caught in the escalator.

This escalator had at its lower end, fastened to the floor where the moving steps disappeared under the floor, a device designated as a “comb plate,” the purpose of which was, if some passenger did not lift his feet up, to slide them gradually up on the plate. This comb plate had forty or fifty teeth 3 1/2 inches long and 9/16 inch apart, which were sloped up slightly and so were somewhat thicker where they joined the comb plate than at their tips. Between the comb plate and the steps as they passed under it there was a space about 1/4 inch deep. There was no guard or attendant stationed at this or any of the escalators at the time of the accident, although on busy days it was the custom to have such an attendant.

Plaintiff's hand was caught in the space between the comb plate and the steps passing under it. Goddard stopped the escalator, took hold of plaintiff's wrist and tried to pull his hand out, but was unable to do so. Then he got a key which was kept nearby and reversed the escalator. When it started going in the opposite direction plaintiff's hand at once came out. Two fingers were mangled, crushed and cut off, so that now only short stumps are left and the back of his hand was “torn and blistered like,” as his mother put it.

No witness saw plaintiff just before his hand was caught and hence there is no direct testimony disclosing how it happened. The theory of plaintiff's counsel is that plaintiff was attracted to the escalator by its bright appearance and moving steps, went to it and in childish curiosity reached out his hand to investigate the steps and thus got caught. Confirmatory of this theory, there is testimony by plaintiff's mother that “he was very active and he was very much interested in everything, like a boy. He was always breaking it up and trying to look into the inside, and things like that * * * he was very anxious to know everything that was around him.” There is also testimony that the sidewalls of the escalator were of steel or chrome and the steps of steel. It had been installed only ten months to a year before the accident, so each of these metals was probably bright at that time. A moving device like an escalator would attract the attention of most children of plaintiff's age, but especially that of one with such an active curiosity as that shown by his mother's description of plaintiff. Defendants suggest other possible causes for the plaintiff's mishap, but we think the jury would have been warranted by the evidence in accepting that advanced in plaintiff's behalf.

The question here for decision is whether, on the foregoing facts, and a few others which we shall mention as they become pertinent to our discussion, the court should have directed a verdict for defendants. The power of the court in passing upon such a motion is strictly limited. It has no power to weigh the evidence, but must view it in the light most favorable to the party against whom the direction is asked and accept every inference and presumption in his favor that may legitimately be drawn therefrom, and the motion can be granted only when, on such a consideration of the evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of that party if one were given. Gish v. Los Angeles Ry. Corp., 1939, 13 Cal.2d 570, 573, 90 P.2d 792; Newson v. Hawley, 1928, 205 Cal. 188, 190, 270 P. 364; Wiswell v. Shinners, 1941, 47 Cal.App.2d 156, 159, 163, 117 P.2d 677; Barty v. Collins, 1930, 109 Cal.App. 94, 96, 292 P. 979.

In answering the question above put as to the propriety of the directed verdict, we deal with the defendants separately, reaching different answers for each of them. We take up first the case of the defendant corporation. Plaintiff contends that it was required to exercise the highest degree of care toward him, likening the escalator to an elevator and citing cases where operators of elevators and escalators were held to the exercise of such care toward their passengers. But while the rule of care which plaintiff invokes may bind carriers of passengers, in proper cases, both before and after the actual carriage, it does not extend to cases where the relation of carrier and passenger does not exist. Plaintiff here was not using the escalator as a means of transportation when he was injured, he had not previously done so and there is nothing to indicate that he or his mother intended to use it thereafter. The business which his mother was then transacting, and the activities of plaintiff himself, bore no relation to the matter of transportation. Plaintiff cannot be regarded as a passenger. He was, at the time in question, simply a business invitee of defendant corporation, and to him it owed the duty which exists in all such cases, that is, to use ordinary care to keep the premises reasonably safe for those so invited to go upon them. Koppelman v. Ambassador Hotel Co., 1939, 35 Cal.App.2d 537, 540, 96 P.2d 196; Tuttle v. Crawford, 1936, 8 Cal.2d 126, 130, 63 P.2d 1128. The place where the accident happened was the infants' and children's wear department of a large store, and while there is no evidence of the number of children visiting that department, it is clear that they were among those invited to go there and that the defendant storekeeper should have expected their presence and acted accordingly. The children so invited were of such an age, not over six, that ordinarily they could not appreciate the danger of putting their fingers in or around moving machinery, but would be attracted by such machinery, especially if it were bright, and would be likely to investigate with their fingers anything to which they were attracted. As the court said in Barrett v. Southern Pacific Co., 1891, 91 Cal. 296, 302, 27 P. 666, 667, 25 Am.St.Rep. 186: “In the forum of law, as well as of common sense, a child of immature years is expected to exercise only such care and self–restraint as belongs to childhood, and a reasonable man must be presumed to know this, and the law requires him to govern his actions accordingly. It is a matter of common experience that children of tender years are guided in their actions by childish instincts, and are lacking in that discretion which, in those of more mature years, is ordinarily sufficient to enable them to appreciate and avoid danger; and, in proportion to this lack of judgment on their part, the care which must be observed towards them by others is increased; and it has been held in numerous cases to be an act of negligence to leave unguarded and exposed to the observation of little children dangerous and attractive machinery, which they would naturally be tempted to go about or upon, and against the danger of which action their immature judgment interposes no warning or defense.” This case was approved in Cahill v. E. B. & A. L. Stone & Co., 1908, 153 Cal. 571, 574, 96 P. 84, 19 L.R.A.,N.S., 1094, and Pierce v. United Gas & Elec. Co., 1911, 161 Cal. 176, 181, 118 P. 700.

The Barrett case, just cited, was one of the “turn–table” or “attractive nuisance” cases and the other two were similar in nature. The doctrine of those cases was declared, in the first place, as an exception to the rule that a landowner has no duty towards trespassers except to abstain from wilful or wanton injury. There has been much discussion in the briefs herein, whether the instant case is to be classified with them. Literally, it differs from them because plaintiff here was not a trespasser, but an invitee. But they set up a standard of care which is even more applicable in case of an invitee than in case of a trespasser, and we think a person who invites children upon his premises is subject to it.

This matter has been considered in several cases from other jurisdictions, in which not only were escalators in stores involved, but the facts were that small children had gotten their fingers caught in them, and it has been held that the proprietors of the stores might be held liable for negligence in not anticipating and guarding against such accidents, and that the question whether their failure in that respect did constitute negligence was one of fact for the jury. Hillerbrand v. May Mercantile Co., 1909, 141 Mo.App. 122, 121 S.W. 326, 328; Graves v. May Dept. Stores Co., Mo.App.1941, 153 S.W.2d 778, 783; Jablonski v. May Dept. Stores Co., Mo.App.1941, 153 S.W.2d 786; Reynolds v. May Dept. Stores Co., 8 Cir., April 8, 1942, 127 F.2d 396. In Hillerbrand v. May Mercantile Co., supra [141 Mo.App. 122, 121 S.W. 328], the court said: “Proprietors of premises who invite children on them must use care to keep them reasonably safe, not omitting precautions against injury from childish impulses. * * * 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. [Citing cases.] 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.” Part of this language was quoted with approval in Graves v. May Dept. Stores Co., supra [153 S.W.2d 783], where the court further said: “We think that the evidence in the case at bar was sufficient to warrant the jury in saying that the moving escalator was such an instrumentality as was likely to attract a small child's curiosity and likely to cause it to put its hand upon the moving step at the point where the opening was located, and justified a finding that it presented a condition of such a dangerous nature to children of tender age that a reasonably prudent person, exercising ordinary care, would have anticipated such danger to a child and guarded against it.” The evidence there was not substantially different from that here, except that the injured child there was only 2 1/2 years old. It was also held, we think correctly, in Hillerbrand v. May Mercantile Co., supra, and Graves v. May Dept. Stores Co., supra, that the fact that there was no evidence of previous similar accidents did not prevent the finding of negligence, the statement being made in the Hillerbrand case and repeated in the Graves case that “* * * 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 * * *.”

Defendant insists that the rule of the turntable or attractive nuisance cases cannot be applied here because it is impossible to construct such an apparatus as an escalator without space between its moving parts, that any practicable space would be sufficient to receive the fingers of a small child, and that the rule does not apply unless the danger can be easily guarded against without impairing the usefulness of the instrumentality. The rule is qualified as thus contended. Morse v. Douglas, 1930, 107 Cal.App. 196, 201, 290 P. 465; Polk v. Laurel Hill Cemetery Ass'n, 1918, 37 Cal.App. 624, 629, 174 P. 414; Loftus v. Dehail, 1901, 133 Cal. 214, 217, 65 P. 379. But this qualification of the rule does not necessarily mean that the guard against danger must be wrought into the instrumentality. In this case the same result could have been accomplished by stationing guards at the places of danger, as was done when visitors were more numerous.

We do not intend, by what we have just said, to declare that negligence of defendant corporation here was established as a matter of law, or that a verdict for it would have been without support in the evidence. But upon the evidence questions of fact arose for the jury, which should have been allowed to determine whether the escalator was of the class of objects naturally attractive to children, whether defendant corporation should in the exercise of ordinary care have known that it was of that class and anticipated accidents such as that which happened to plaintiff, and if so, whether ordinary care required the stationing of guards at the escalator to prevent such accidents. Upon these issues findings in favor of plaintiff would have been supported and would have required judgment in his favor against the defendant corporation. Another question, in a proper case, might be, whether defendant should have covered or protected the opening into which plaintiff's fingers were thrust; but there was here no evidence to show that this was possible or practicable and so no verdict for plaintiff could be based on that theory.

The foregoing conclusions do not apply to defendant Goddard. He did not install or maintain the escalator and was not in charge of its operation. He was merely the floor manager in charge of the department of the store where plaintiff was injured. He had been instructed how to stop and start the escalator, in case accidents should happen, but is not shown to have had any other responsibility regarding it. He cannot be held liable to plaintiff on any of the grounds above suggested. Plaintiff contends, however, that other grounds of liability exist as to him, growing out of his conduct after the accident happened.

This contention is based on the testimony of plaintiff's mother that plaintiff was kneeling down facing toward the escalator with his hand caught in it, that when Goddard came up he stopped the escalator, took hold of plaintiff's wrist and tried for “about two minutes * * * a little while” to extract the hand, that failing in this effort, Goddard reversed the escalator and “then Takashi's finger came out with the blood shooting out,” that before the escalator was reversed there was no blood visible on plaintiff's hand, and the blood appeared “just when the escalator was reversed.” From this plaintiff seeks to draw the conclusions that the reversal of the escalator was the cause of the loss of parts of his fingers and that Goddard was negligent in reversing the escalator instead of calling mechanics, who were somewhere about the building, to remove the comb plate, an operation which would take 15 or 20 minutes after the mechanics arrived. In addition to the facts thus relied on by plaintiff, the mother's testimony also shows that the back of plaintiff's hand was injured “quite a bit * * * torn and blistered like.” These facts do not justify the inference suggested by plaintiff. From the fact that the back of the hand received the injuries above stated––injuries which were impossible unless the back of the hand were drawn in between comb plate and step––it is clear that the fingers were not visible when plaintiff's mother looked at the hand before the escalator was reversed. Hence her failure to see blood affords no basis for an inference that the fingers were not then bleeding. It is easy to understand how the forward movement of the steps pulling on the fingers when the hand was caught in the escalator might inflict the injuries suffered by the fingers; but it is not so clear how the backward movement of the steps, freeing the fingers from detention, could have produced that result. We have no information regarding the internal construction of the escalator to aid us in reaching the conclusion that it did so. Any such conclusion must be based on pure conjecture, which is not a basis on which a verdict may be founded.

Moreover, Goddard knew that it would take 15 or 20 minutes to remove the comb plate and thus free plaintiff's hand, after the mechanics arrived, in addition to the time necessary to get them there. He had discovered that the hand could not be released by such efforts as he could make with the escalator stopped. Plaintiff was already crying with the pain of his injuries. Goddard's conclusion that a reversal of the escalator would at once free the hand was a reasonable one, under the circumstances, and was proved correct by the event. It is not shown that anything apparent to him should have caused him to know, or even to suspect, that reversal of the escalator would result in the cutting off of plaintiff's fingers or otherwise increase the injuries he had obviously suffered already. If Goddard decided, as apparently he did, that it was better to free plaintiff's hand at once than to keep him in a strained and necessarily painful position for a period of time which might considerably exceed 15 or 20 minutes, we see no reasonable ground on which a jury could have found that his conduct in that respect was negligent, even if we assume that, in fact, the reversal of the escalator did aggravate plaintiff's injuries.

Plaintiff also contends that the doctrine of res ipsa loquitur is applicable here and that under it an inference of negligence on the part of both defendants may be supported without anything more than appears in the record. That doctrine is clearly not applicable in support of plaintiff's case against defendant Goddard. One of its fundamental elements is that the thing causing the injury be under the management and control of the defendant. 19 Cal.Jur. 704, 708. No such condition existed as to him. The doctrine is likewise not applicable to defendant corporation, but for other reasons. “The reason for the rule is that ordinarily the one injured is not in a position to know more than that, by some unusual movement of the instrumentality, he was injured, whereas the one who operates the instrumentality should know and be able to explain the precise cause of the accident.” 19 Cal. Jur. 705–707; Alexander v. Wong Yick, 1938, 25 Cal.App.2d 265, 269, 77 P.2d 476. “The converse of this rule is likewise true. If the evidence affirmatively shows the operator or manager of the instrumentality by means of which the injuries are inflicted has no superior knowledge or by the exercise of reasonable care is unable to secure information regarding the cause of the accident, or the evidence establishes the fact that the complainant possesses all the knowledge or information thereof which is reasonably accessible to the operator of the machine, then the doctrine of res ipsa loquitur has no application.” Johnson v. Ostrom, 1932, 128 Cal.App. 38, 43, 16 P.2d 794, 795; Alexander v. Wong Yick, supra, and cases therein cited; Jorgensen v. East Bay Transit Co., 1941, 46 Cal.App.2d 189, 193, 115 P.2d 556. “* * * When the cause is established by either party to the action the doctrine is not then applicable.” Manuel v. Pac. Gas & Elec. Co., 1933, 134 Cal.App. 512, 517, 25 P.2d 509, 511. Here the evidence clearly establishes the immediate cause of the plaintiff's accident. It resulted from the facts that the escalator was in operation and that it was so constructed that there was an opening in which plaintiff's fingers could get caught. It did not result from any abnormality in the operation of the escalator, such as the sudden jars or jolts which the operators of moving vehicles have been required, under this doctrine, to explain. Whether defendant corporation was to be held liable for the injuries thus caused depended on the consideration of matters which were as open to investigation by one party as by the other. Defendant could be held liable in this case, as we have held, for failure to station guards to keep watch over the escalators. But this conclusion of liability does not depend on the res ipsa loquitur rule. Since we hold that an inference of negligence was otherwise possible this point is perhaps not of great importance; but we determine it for the purpose of a new trial, to guide the trial court in its instructions to the jury, or its own consideration of the case if there is no jury.

Defendant contends that plaintiff's mother was guilty of contributory negligence in failing to keep proper watch over plaintiff and to prevent him from getting caught in the escalator. As defendant concedes, such negligence would not bar plaintiff Takashi's action for his own injuries (Zarzana v. Neve Drug Co., 1919, 180 Cal. 32, 37, 179 P. 203, 15 A.L.R. 401), and it was not pleaded as a defense thereto; but defendant argues that any recovery by plaintiff Tsutomu would be community property of himself and his wife, the mother of the other plaintiff, and hence her contributory negligence would constitute a defense to Tsutomu's action. It is true that negligence of the wife, if any, in caring for the children of herself and her husband is imputable to the husband and is a defense to any action brought by him in behalf of the community to recover for injuries to the children to which such negligence contributed. Dull v. Atchison, T. & S. F. Ry. Co., 1938, 27 Cal.App.2d 473, 479, 81 P.2d 158. But from the evidence it appears that the wife took some precautions by way of watching over and caring for the son, and we cannot say, as a matter of law, that they were not sufficient. The question was one for the jury. See Healy v. Market St. Ry. Co., 1940, 41 Cal.App.2d 733, 738, 107 P.2d 488; Carrisosa v. Southern Service Co., 1932, 128 Cal.App. 160, 163–165, 16 P.2d 1032. The parties appear to assume that this action is, so far as plaintiff Tsutomu is concerned, one brought in behalf of the community. Nothing in the record indicates otherwise; but, if plaintiff Tsutomu had actually paid the bills for treatment, for which, only, he sues, from his separate property, we see no reason why his action should be regarded as one brought in behalf of the community.

The notice of appeal names Toki Kataoka, who is the mother of plaintiff Takashi, as an appellant. She was not made a plaintiff by the complaint and it stated no cause of action in her favor, no relief was sought against her by the answers, and although we have what purport to be complete clerk's and reporter's transcripts, no amendment of the complaint or other proceedings appear therein by which she was made a party to the action. Nevertheless, in the caption of both verdict and judgment she is named as a plaintiff and the judgment for defendants' costs runs against her by name. One who is not a party to the record may not appeal (2 Cal.Jur. 209); but when the court reaches out and enters judgment against one not theretofore a party to an action, we think such person becomes sufficiently a party to the record to entitle him to appeal. It also seems plain that a judgment against one who is not a party to the action in which it is rendered is erroneous.

The judgment in favor of defendant Goddard is affirmed in so far as it runs against plaintiffs Takashi Kataoka and Tsutomu Kataoka. The judgment in favor of defendant May Department Stores Company is reversed and the cause is remanded for a new trial as to that defendant. The judgment against Toki Kataoka is reversed.

SHAW, Justice pro tem.

SHINN, Acting P. J., and PARKER WOOD, J., concur.