Opinion
Jan. 15, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Hoyman, Maguire, Davies & Nanney, P.C., John P. Nanney, III, Denver, for plaintiff-appellant.
Robert W. Hansen, Warren B. Bosch, Denver, for defendants-appellees.
RULAND, Judge.
This is an action brought against a landlord and its managing agent on behalf of a minor child to recover damages for injuries suffered when he was burned by a heating stove. At the conclusion of plaintiff's case in a trial to a jury, the trial court granted defendants' motion for a directed verdict. Plaintiff appeals; we reverse.
The record reflects the following. On December 4, 1968, three-year-old Stephen Gohn was sleeping in his parents' home. He awoke early and went downstairs to warm himself. Finding the main heater cold, he went to stand near the gas heater on the back porch, and in doing so, his clothing caught fire, and he was severely burned.
Plaintiff introduced testimony showing that the heater on the back porch had been in a defective condition when the Gohn family rented the residence in October of 1967. The defect in the gas heater consisted of broken isinglass panes, which allowed flames to escape out of the front of the heater. As agent of the landlord, Virgil Harden had been asked and had promised repeatedly, both prior and subsequent to the rental of the residence, to repair or replace the heater. Despite the commitments made on behalf of the landlord, the heater was not repaired or replaced.
No one except Stephen was present when the accident occurred. The evidence of causation consisted of testimony as to the defect in the heater and testimony of Stephen's mother reporting, without objection, statements of Stephen.
The only issue for our determination is whether there was sufficient evidence of negligent acts and proximate cause to warrant submission of the case to the jury. The rule which governs this determination is stated in Randall v. Nasbarg, 28 Colo.App. 147, 470 P.2d 893:
'Only in the clearest of cases where the evidence is undisputed and reasonable minds could reach but one conclusion are the questions of negligence and proximate cause to be taken from the jury and determined as a matter of law by the court.'
In applying the rule set forth in Randall v. Nasbarg, Supra, there is no requirement that direct evidence established proximate cause; circumstantial evidence is sufficient. See Denver Dry Goods Co. v. Gettman, 167 Colo. 539, 448 P.2d 954. In the case at hand, plaintiff's evidence, including every legitimate inference drawn therefrom, is sufficient for the jury to infer that the injuries were caused by the defective condition of the heater. See Nettrour v. J. C. Penney Co., 46 Colo. 150, 360 P.2d 964. Further, the evidence is sufficient for the jury to conclude that defendants were liable for injuries caused by the defective heater. Under such circumstances, a directed verdict for defendants was improper.
Through cross-examination, defendants raised the possibility that the child merely stood too close to the hot surface of the heater causing his clothes to ignite without the assistance of an open flame. Defendants therefore argue that it is mere speculation to conclude that the defect in the heater caused Stephen's injuries. However, in ruling on a motion for a directed verdict at the conclusion of plaintiff's case in chief, all evidence and inferences favorable to defendants must be disregarded. Randall v. Nasbarg, Supra. Accordingly, the motion should have been denied.
Judgment reversed and cause remanded for new trial.
Judgment reversed and remanded with directions.
SILVERSTEIN, C.J., and SMITH, J., concur.