Morger v. Knapp

FINLEY, J. pro tem.* Appeal from a judgment of non-suit, the action being for personal injuries.

Appellant, a minor of the age of about two years, brought this action through his mother, as his guardian ad litem, for personal injuries allegedly received when a vending machine on a stand in front of the market owned by Guy B. Piltingsrud, since deceased, and his wife, fell upon appellant. When plaintiff-appellant rested his case, which was before a jury, the trial court granted defendants' motion for nonsuit and entered judgment thereon. Appellant urges that this was error because:

(a) The doctrine of res ipsa loquitur is applicable and the ease should have gone to the jury.

(b) The court erred in considering contributory negligence when such negligence was not pleaded as a defense; that as a matter of law contributory negligence could not be imputed to the child resting upon some act by his mother, nor can such negligence be imputed to a 2-year-old child.

Appellant accompanied his mother to respondents’ store where she purchased groceries. She gave appellant a penny for use in one of three vending machines of the bubble gum variety, all resting on a stand by the front door of the market. While engaged in an attempt to use the penny in one of the machines the stand and machines tipped and fell upon appellant, causing the alleged injuries.

Applying the rule which has been developed through a progression of decisions concerning the granting of a nonsuit we conclude that it will be unnecessary to discuss in detail either of appellant’s two contentions noted above. Our review of the record discloses evidence upon which a jury could, by disregarding conflicts and resolving all presumptions, inferences, intendments, and questions of doubt in favor of appellant, have reached a verdict favorable to him. Under such circumstances, it is error for the trial court to grant a motion for nonsuit. (Kopfinger v. Grand Central Public Market, 60 Cal.2d 852 [37 Cal.Rptr. 65, 389 P.2d [776529]]; Lee v. Ashizawa, 60 Cal.2d 862 [37 Cal.Rptr. 71, 389 P.2d 535]; Hinds v. Wheadon, 19 Cal.2d 458 [121 P.2d 724]; Doke v. Pacific Crane & Rigging, Inc., 80 Cal.App.2d 601 [182 P.2d 284]; Estate of Lances, 216 Cal. 397 [14 P.2d 768]; Anderson v. Stump, 42 Cal.App.2d 761 [109 P.2d 1027].) “A motion for a nonsuit is in effect a demurrer to the evidence and the court must assume that all the evidence received in favor of the plaintiff relevant to the issues is true. All presumptions, inferences and doubtful questions must be construed most favorably to the plaintiff’s ease.” (Richardes v. Richardes, 211 Cal. 392, 394 [296 P. 816]; Anderson v. Stump, supra.)