Merion v. Schnitzlein

ARCHBALD, J.,

pro tem.

On November 30, 1928, plaintiff was living with her mother in a furnished apartment located in an apartment house in Long Beach operated by defendants and rented from them. Installed in each apartment of the establishment, including that occupied by plaintiff and her mother, was a small Humphrey Radiant Pire Heater No. 20. On the date mentioned the mother lighted the heater in the morning, dressed, had breakfast and departed to her work, returning at noon for lunch. She knocked on the door of the apartment but received no answer; “I commenced hammering, pounding on the door. I heard her [the daughter] fool with the door, and she opened it and just fell back on the floor.” The mother then telephoned Dr. Newman, who in turn, thinking the girl might have been overcome by monoxide gas, requested the pulmotor squad of the fire department to go at once to the apartment. This they did, finding the girl unconscious. After working on her for forty-eight minutes consciousness was restored. The lieutenant in charge testified that he had been a member of the squad for several years and had treated at. least a hundred cases; that plaintiff’s breath at the time had the smell distinctive of cases wherein people were overcome by monoxide gas. Dr. Newman testified that prior to November 30th.he had known plaintiff for about two years and that she “was a normal, healthy girl of her age”; that he treated her at the apartment for a month after that date and that she then came to his office with her mother the latter part of December and in January, 1929; that later he advised the mother to “try a change of climate” for the girl; that he did not see her again until April, at which time she had not recovered her health; that in his opinion her condition was the result of monoxide gas poisoning.

This action was brought by plaintiff through her mother as guardian

ad litem,

the complaint charging negligence in installing the heater without venting it as required by city ordinance, and that the heater was negligently “adjusted and left by said defendants in such a condition that mon

[723]

oxide gas was produced when said heater was burning”. Trial before a jury resulted in a verdict of $5,000 against defendants. Motion for new trial was denied on condition that plaintiff accept $2,000 damages in lieu of the amount awarded by the verdict of the jury. Such election was filed by plaintiff and defendants appeal from the judgment entered. The sole question raised by the appeal is as to the sufficiency of the evidence to support the judgment.