Kline v. J. C. Penney Co.

BRAZIL, J. pro tem.

*

Six-year-old plaintiff Terry Kline prevailed before a jury in an action for damages against defendant J. C. Penney Stores. From the judgment, after denial of its motion for a new trial, the defendant appeals.

The child injured his hand one day when he was in the store with his mother and sister who were interested in buying some clothes. While they were thus preoccupied, Terry went over to the end of the escalator on the second floor, and while playing around there got his hand caught in the opening where the continuous hand rail of the escalator returns through the floor. Around the aperture are stiff bristles, dark in color, which effectively keep anything larger than a ruler from going through the hole. The bristles are all around the returning hand rail and actually come in contact with it. The child was putting his hand on the moving rail and following it down, stooping to do so; in momentarily looking away, his hand got “sucked” into the opening; and it was badly lacerated. A section manager of the defendant store quickly stopped the escalator by pressing a button, and he got the child’s hand out by reversing the escalator with a key he regularly carried.

The escalator had been in use for about five years without any material change. There was evidence that other children

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had on previous occasions gotten hurt in much the same way as Terry, and employees had knowledge of several such instances. They also had knowledge that children had used the same place to engage in play while those who should have been watching them were busy shopping.

Appellant does not include insufficiency of the evidence to support the judgment as one of its grounds of appeal. Its claims of error in short form are these: (1) the amount sued for was below the jurisdiction of the superior court, (2) two faulty instructions, (3) misstatement of evidence by plaintiff’s attorney in his argument, concurred in by the court, and (4) denial of a fair trial because of conduct of plaintiff’s attorney.

The defendant’s claim that the superior court had no jurisdiction to try the case is based on what took place before the jury was sworn. The record discloses: “Mr. Teerlink: The other matter, your Honor, would be the question of plaintiff [s] moving to amend their prayer for damages from the sum of $20,000 general damages down to the sum of $3,000. The Court: Of course, the motion will be granted. . . . Mr. Custer: Wait a minute. Now, is this in the jurisdiction of the Superior Court? Mr. Teerlink: Three thousand plus specials. All right, three thousand and one dollar, Judge. The Court: All right. Motion granted.” And that’s all there was said about it until the point shows up in appellant’s opening brief. The case was tried, argued and decided with concurrence of all on the obvious basis that the prayer of the complaint was amended to $3,001 and not $3,000. The first statement of the trial judge in response to the attorney’s statement of his desire about the amount of the prayer is in the future tense; his second statement was the order which reduced the amount of the prayer. The conduct of the parties thereafter supports this interpretation.