Vandagriff

is an appeal from an order granting respondent a new trial after the judge had rendered a judgment of nonsuit.

At 10:30 a.m. on July 18, 1959, Mrs. Bita Vandagriff entered appellant J. C. Penney Company’s store in Richmond to purchase crib sheets. With Mrs. Vandagriff were her four children and her sister’s child. After Mrs. Vandagriff made her purchase, two of her children, Judy and respondent Ronnie (then 8 years old), asked to go down to the basement to look at toys. Mrs. Vandagriff gave them permission to take the escalator, telling them to be careful as they got on. Previously, Ronnie had been instructed to watch his step as he got on an escalator and to hold onto the handrail; however, he had never been expressly directed by his parents not to sit down on an escalator. There was a sign on the escalator, “Please use handrail.” Bonnie does not remember seeing any sign.

Bonnie boarded the escalator, went down a short distance and then sat down on a step, because he was tired. He put his left hand beside and behind him, about 4 inches from the side of the escalator. When he was about half-way down, he turned around to look at his sister, who was sitting about five steps behind…