Swyny v. Caylor

FRICKE, J., pro tem. Plaintiff and her sister rented an apartment from appellants on November 1, 1931, and occupied the same up to March 16, 1932, on which day a door, to which the folding bed being occupied by them was attached, fell across the bed, causing the personal injuries for which plaintiff recovered damages in the trial court.

The testimony in the record is at many points ambiguous and unintelligible, being replete with descriptions, demonstrations and illustrations by various witnesses of- the construction, installation, operation and condition of the door, bed and attached hardware, which testimony and the questions of counsel repeatedly employ the words “this”, “that”, “this way”, “that way”, “here” and “there”, without any indication in the record as to what the witness had reference or the physical demonstration accompanying the testimony. While such testimony was no doubt understandable to the trial court and jury, it is of no assistance to an appellate tribunal which has before it only the words of the witnesses.

The facts, as we are able to gather them from the record, are that on March 16, 1932, respondent and her sister retired, and shortly after they fell asleep the door to which the head of the folding bed was attached fell across the bed, severely injuring respondent. The bed was a “Marshall-Stearns” folding bed, with the head thereof attached to the door of a closet, the door being pivoted at the center of its top by fittings and a movable pin in the door and door frame, and pivoted at the center of the bottom edge of the door by a fixed pivot with a conical tip resting in a corresponding socket set in the floor. The foot end of the bed could be raised and the bed thus folded up against the door, and while in that position the door could be revolved to move the bed out of or into the closet. The bed and door formed one complete device and were both made by Marshall-Stearns Company. Both parties agree that the fittings constituting the fixed pivot at the bottom of the door were standard MarshallStearns fittings. Appellants contend this was also true of the fittings at the top of the door, but respondent contends that, while the top fitting in the door itself was of MarshallStearns manufacture, the fitting in the door frame or header [630]and the pin which constituted the pivot at the top were not Marshall-Stearns fittings but “bootleg” fittings, which by reason of their inadaptability and the manner of installation caused the accident. The liability of appellants depends largely upon the correctness of this latter contention, which appellants assert is not supported by anv evidence.