L.S. Ayres & Co. v. Hicks
| Decision Date | 25 March 1942 |
| Docket Number | 27632. |
| Court | Indiana Supreme Court |
| Parties | L. S. AYRES & CO. v. HICKS. |
Appeal from Morgan Circuit Court; Omer O'Harrow, Judge.
Fesler, Elam, Young & Fauvre, of Indianapolis (Homer Elliott, of Martinsville, of counsel), for appellant.
Barnes Hickam, Pantzer & Boyd and Thomas M. Scanlon, all of Indianapolis (S. C. Kivett, of Martinsville, of counsel), for appellee.
The appellee recovered a judgment against the appellant for personal injuries. The assigned errors relate to the overruling of the appellant's motion for a judgment on the interrogatories and the answers thereto and the motion for a new trial. Under the motion for a new trial it is charged that the verdict is not sustained by sufficient evidence; that it is contrary to law; that there was error in the giving and refusal of certain instructions; that appellee's counsel was guilty of misconduct; and that the damages are excessive.
John Hicks, the appellee, a six year old boy, visited the appellant's department store in company with his mother who was engaged in shopping. While descending from the third floor on an escalator, the appellee fell at the second floor landing and some fingers of both his hands were caught in the moving parts of the escalator at the place where it disappears into the floor.
The appellee's complaint contained five distinct charges of negligence, as follows:
'1. In operating an escalator so constructed as to leave sufficient space between said ribs, said comb-plate and the teeth thereof to permit the fingers of small children, including plaintiff, to become caught and wedged therein when said escalator could then and prior thereto have been so constructed as defendant knew or should have known with ribs so close together and passing between the teeth and under the comb-plate with so little space between that fingers of children could not have been entangled or wedged therein.
'2. In failing to have a proper guard placed over the teeth of said comb-plate and the openings between said teeth to prevent objects and particularly fingers and other parts of the body of passengers on said escalators which might be drawn therein from being caught therein.
'3. In failing to take proper steps to stop the movement of said escalator with reasonable promptness when it knew, or by exercise of reasonable care should have known, of plaintiff's position of peril. That the means taken by defendant, if any, with reference to safeguarding passengers upon said escalators by having employees in a position to observe the same and stop said operation in the event of an accident, and the facts with reference to the stopping of the escalator after plaintiff's said fall are unknown to plaintiff, but are fully known to the defendant.
'4. In failing to take proper steps for the immediate release of plaintiff from said escalator following said accident. That the means taken by defendant with reference to reversing such mechanism upon the happening of an accident and the means adopted by defendant with reference thereto after plaintiff's said fall are unknown to plaintiff, except as hereinbefore stated, but are fully known to defendant.
On review only the pleadings, the general verdict, and the interrogatories and answers will be considered in determining whether a judgment should have been entered on the answers to interrogatories. The evidence actually introduced at the trial will not be considered, but the court will suppose any evidence that might properly have been introduced under the issues. 2 Watson's Works Practice, § 1903.
The jury found that the escalators with which the appellant's store was equipped were purchased and installed in 1934; that no escalator was made prior to the accident that was safer than the one in use; that it was not the practice of stores installing escalators to have an attendant after a year; that the escalator on which appellee was injured was equipped with switch buttons at each floor landing by which it could be stopped in about 2 1/2 steps; that appellant had clerks working within 50 feet of the place where appellee was injured, all of whom had not been instructed how to stop the escalator; that the escalator was moving at the rate of 90 feet per minute; that appellee's fingers were caught in the mechanism practically as soon as he fell; that the escalator ran 'approximately 70 steps (of 15 inches) or more' before it was stopped; that it was from 3 to 5 minutes after appellee was first injured before his fingers were released; and that the appellee's injuries were increased by the grinding effect on his fingers which continued until the escalator was stopped.
The appellant asserts that it affirmatively appears from the answers to the interrogatories that it was not guilty of any act or omission of negligence charged in the complaint. The facts found by the jury conclusively establish that the appellant was not negligent with respect to the choice, construction, or manner of operating the escalator. This being true, there could have been no incidental duty on the appellant to anticipate an accident, to instruct its employees, or to keep someone in attendance when the machine was in operation. One is not bound to guard against a happening which there is no reason to anticipate or expect. Parry Mfg. Co. v. Eaton, 1908, 41 Ind.App. 81, 83 N.E. 510. Having concluded that the appellant was not responsible for the appellee's initial injury, the question arises whether it may, nevertheless, be held liable for an aggravation of such injury, and, if so, under what circumstances.
It may be observed, on the outset, that there is no general duty to go to the rescue of a person who is in peril. So, in Hurley Adm'r, v. Eddingfield, 1901, 156 Ind. 416, 59 N.E. 1058, 53 L.R.A. 135, 83 Am.St.Rep. 198, it was held that a physician was not liable for failing without any reason to go to the aid of one who was violently ill and who died from want of medical attention which was otherwise unavailable. The effect of this rule was aptly illustrated by Carpenter, C.J., in Buch v. Amory Mfg. Co., 1897, 69 N.H. 257, 260, 44 A. 809, 810, 76 Am.St.Rep. 163, 165, as follows: ...
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