Sample v. S. H. Kress & Co.

DUNIWAY, J. Plaintiff appeals from a judgment of nonsuit entered in an action for personal injuries. He claims (1) that the evidence was sufficient to go to the jury, (2) that the doctrine of res ipsa loquitur applies, and (3) that the court erroneously denied his motion for leave to reopen. We find no error.

We state the facts most favorably to appellant, as we are required to do on appeal from a judgment of nonsuit. In doing so, we assume the truth of appellant’s own description of the accident, including those portions thereof that may tend to sustain the judgment. We do not think that the rule as to nonsuit permits a plaintiff to ask us to disbelieve his own uncontradicted testimony in order to find error in granting a nonsuit. Our statement includes those facts that appellant sought to prove on his motion to reopen.

Appellant, a truck, driver, arrived at the rear of respondent’s store on Stevenson Street in San Francisco with a load of merchandise for the store. He entered the store in search of a receiving clerk and was directed to the second floor. There was a freight elevator alongside the place where he was standing. On motion to reopen, appellant offered to show that the employee of whom he inquired directed him, by gesture, to that elevator. The doors leading to the elevator were closed. They were steel doors, placed horizontally, and when they were opened the lower door dropped down so that its top was level with the floor and the upper door simultaneously rose so that its bottom was level with the top of the opening into the elevator shaft. Hanging from the bottom edge of the outside of the upper door was a light colored strap of webbing, something over a foot long. Next to the strap was a plainly lettered sign: “Close carefully.” Appellant opened the doors by pulling up on this strap. He had never used the elevator before, but was familiar with and had operated similar freight elevator doors.

Hanging from the lower edge of the inside of the upper door was a similar, somewhat shorter strap. The inside and outside straps were opposite each other and a few inches apart. Appellant took hold of the inner strap and pulled down, to close the doors. They moved, according to his testimony, “fast,” “faster than an ordinary door”; “so fast,” [506]“too fast,” “very fast,” “faster than any door I had ever seen.” His hand, holding the strap, “shot right in between those two steel doors and got crushed.” The doors did not stick, nor did they “collapse.” Appellant testified that he knew that if he pulled very hard, the door would come down faster than if he pulled “easy,” that he had to judge for himself how hard to pull, that some doors “you have to pull harder than others.”