Gold v. Hlivyak

DRAPEAU, J.

Richard Gold, hereinafter referred to as plaintiff, is a 12-year-old boy. John Hlivyak, hereinafter referred to as defendant, operated a boys’ club for compensation.

On Saturday mornings, defendant usually picked up a group of boys in his Plymouth station wagon and supervised them in a program of athletics and recreation.

On May 3, 1952, he was transporting a group of 16 boys in and around Beverly Hills on their way to a playground in Culver City. The station wagon had a rear window opening upward.

Plaintiff was one of the first to be picked up. When he got into the station wagon he was carrying a new toy called a “slinky.” This was a coil of fine steel wire, two to three inches in diameter and four inches in length when in repose. When in operation it expanded lengthwise a distance of from 10 to 15 feet.

The club had a rule that nothing should be dropped or thrown from the windows of the station wagon. However, plaintiff began playing the toy out of the rear window, allowing it to bounce along on the pavement behind the ear.

Defendant warned plaintiff to be careful with the slinky and not to let it out the back window. But plaintiff continued to do so and defendant took it away from him and put it in the glove compartment of the station wagon.

After several minutes, plaintiff asked for the return of his toy and promised defendant he would not let it drop out of the window any more. Defendant returned the slinky to him, and plaintiff immediately dropped it out the window. As he did so, he observed other automobiles near the station wagon, and also that the slinky stretched out about 14 feet —far enough to reach a parked car. Shortly thereafter the toy caught, either on a parked car or a passing Cadillac, the coil of wire tightened and amputated three of plaintiff’s fingers.

The instant action is one for damages for these personal injuries sustained by plaintiff on account of defendants’ alleged negligence and lack of supervision of the minor.

Defendants denied the negligence and áffirmatively pleaded contributory negligence and assumption of risk.

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