Morger

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…