Opinion
Wood, Ris & Hames, Eugene S. Hames, Denver, for defendant-appellee J. C. Penney Co.
Gerald A. Kay, Denver, for plaintiffs-appellants.
Zarlengo, Mott & Carlin, Reed L. Winbourn, Denver, for defendant-appellee Westinghouse Electric Corp.
ENOCH, Judge.
This is a personal injury case resulting from an escalator accident on December 23, 1960. Plaintiffs-appellants are Frank Rodrick (Frank) and his parents, Tony and Margy Rodrick. Defendants-appellees are J. C. Penney Company and Westinghouse Electric Corporation. Trial was to a jury in 1971 which returned a verdict in favor of Penney and Westinghouse. Plaintiffs appeal from the judgment entered on the verdict. We affirm.
Frank, three years old, was with his mother and aunt in J. C. Penney's downtown Denver retail store on the day of the accident. While riding down the escalator with the two women Frank lost his balance, fell, and caught his hand between the step riser and the skirt guard causing serious injury to the hand. There was no evidence that a 'jerk' in the otherwise uniform motion of the escalator had caused Frank to fall.
Plaintiffs allege nineteen separate points of error. Many of them have been consolidated for disposition of this opinion.
I.
Plaintiffs contend that the doctrine of res ipsa loquitur was applicable to the case and that the trial court erred in not applying it as a rule of law. We disagree. Our Supreme Court has determined that if the circumstances do not indicate superior knowledge or opportunity on the part of the defendant for explaining the true cause of the accident, the doctrine cannot be invoked. Boulder Valley Coal Co. v. Jernberg, 118 Colo. 486, 197 P.2d 155; Yellow Cab Co. v. Hodgson, 91 Colo. 365, 14 P.2d 1081; 65 A C.J.S. Negligence s 220.7. In further explanation of the rule the court held in Boulder Valley Coal Co., supra, that the doctrine is not applicable where the chief evidence of the true cause of the accident is as accessible to the injured party as it is to the party charged with the negligence. In the instant case, the escalator was as accessible for examination to the injured party as to the party having charge of its operation. The plaintiffs did in fact introduce considerable evidence of the alleged negligence based on their examination of the escalator. Since defendants were no more favorably situated than were plaintiffs in regard to the determination of the cause of the accident, the doctrine of res ipsa loquitur is not applicable.
II.
Plaintiffs contend that defendants had knowledge that a perilous condition existed, that defendants had a duty to warn plaintiffs of the dangerous condition, and that the failure to warn constituted lack of reasonable care. The jury was properly instructed in regard to the duty to warn consistent with the principles of Mile High Fence Co. v. Radovich, Colo., 489 P.2d 308. The jury obviously concluded that either the dondition was not unreasonably dangerous or that, if it were dangerous, defendant Penney reasonably had no knowledge of the danger. From a review of the record we find that there was competent evidence to support the verdict. The jury, when properly instructed, is the arbiter of conflicting evidence, and the appellate court will not supplant the jury's findings from impressions or conclusions drawn from the record on review. Book v. Paddock, 129 Colo. 84, 267 P.2d 247.
III.
Plaintiffs allege that the trial court erred in its refusal to admit evidence of prior similar incidents that would tend to establish that defendants had notice of a dangerous condition. We disagree.
While evidence of prior occurrences may be introduced in order to attempt to establish actual or constructive notice of a dangerous condition, the party offering such evidence must sustain the burden of showing sufficient similarity between the prior incidents and the one in question in order to prevent the jury from being misled. Denver v. Brubaker, 97 Colo. 501, 51 P.2d 352. The trial court in the instant case did not rule that evidence of three prior accidents could not, under any circumstances, be admitted; rather, it ruled that plaintiffs had failed to show a sufficiently close factual similarity between the past occurrences and the case at hand. The record reveals that the trial court ruled correctly.
IV.
Plaintiffs assign error to the trial court's inclusion of certain instructions objected to by plaintiffs and to the trial court's refusal to give certain instructions submitted by plaintiffs. It has been consistently held that all the instructions given are to be taken as a whole and considered together, and if the applicable law has been fully stated, the instructions are sufficient. Fox v. Martens, 132 Colo. 208, 286 P.2d 628. We have considered all of the instructions given in the light of the evidence, and we find no error.
V.
Plaintiffs cite numerous other rulings by the trial court which they contend were erroneous. Many of these alleged errors are not properly before this court and will not be considered on appeal since they were either not timely objected to at the trial, Cox v. Pearl Investment Co., 168 Colo. 67, 450 P.2d 60, or not included in the motion for a new trial. C.R.C.P. 59(f); Martin v. Opdyke Agency, Inc., 156 Colo. 316, 398 P.2d 971.
We have considered plaintiffs' remaining allegations of error and find them to be without merit.
Judgment affirmed.
DWYER and SMITH, JJ., concur.