Luna v. Needles Elementary School District

BARNARD, P. J.

This is an action for damages for an injury suffered by the minor plaintiff, a pupil at a kindergarten maintained by the defendant, which resulted in the loss of his left index finger to the first joint. The accident happened on September 26, 1952, which was the minor plaintiff’s fifth birthday. It appears from a map in evidence that this kindergarten building was toward the rear of the school grounds, and there was a black-top sidewalk leading from

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the building across a lawn to the main entrance to the grounds, where the sister of the minor plaintiff testified that they would park and wait for the child. There was a cement block wall surrounding the kindergarten playground, which separated it from the general playground. There was a gate across this black-top sidewalk, extending from one end of this wall to a wall of the kindergarten room. The accident happened at this gate, when the minor plaintiff was climbing this wall and another boy pushed the gate one way or another. It does not appear from the evidence just how the accident happened or exactly where the boy’s finger was when it was injured.

The complaint alleged that the boy’s finger was cut or pinched off and that he suffered this injury by reason of the dangerous condition and imperfect construction of this gate, and “by reason of the negligence of said defendant district and its employees in conducting and supervising said kindergarten school.”

At the time of the trial, April 2, 1956, the minor plaintiff was 8% years old. The boy’s sister testified that her mother called her and asked her to go and see about this matter, and that she met the boy and the nurse at the doctor’s office. She also testified about what later happened at their home. The boy’s mother testified that the boy’s teacher phoned her about five minutes to three on that day and that “I called my daughter-to go after him.” She also testified that the boy went back to school in about a week and a half, and that since the accident “he feels kind of ashamed and shy, he is kind of shyish. ’ ’

The only evidence relating to the accident itself or how or why it happened consists of the map of the school grounds, several photographs of the gate and the near-by kindergarten room, and the testimony of the minor plaintiff. The gate appears to be a well constructed iron or steel gate of the usual type, and opened by a spring lever the handle of which is well above the top of the gate. The gate is apparently some 20 or 30 feet from a door into the kindergarten room.