Hartnett v. May Dept. Store Co.

• Decision Date: 16 July 1935
• Docket Number: No. 23292.,23292.
• Citation: 85 S.W.2d 644
• Parties: MAY HARTNETT, RESPONDENT, v. MAY DEPARTMENT STORES COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

85 S.W.2d 644

MAY HARTNETT, RESPONDENT, v. MAY DEPARTMENT STORES COMPANY, A CORPORATION, APPELLANT.

No. 23292.

St. Louis Court of Appeals. Missouri.

Opinion filed July 16, 1935.

Appellant's Motion to Modify Opinion and for Rehearing Overruled September 10, 1935.

Opinion Modified by the Court of Its Own Motion September 10, 1935.

Appeal from the Circuit Court of the City of St. Louis. — Hon. O'Neill Ryan, Judge.

AFFIRMED.

Everett Hullverson and Robert L. Aronson for respondent.

(1) The doctrine of res ipsa loquitur applies when an escalator passenger is injured because of a sudden and violent jerk of the escalator, constituting an unusual and extraordinary movement thereof. Hesemann v. May Department Stores Co., 39 S.W. (2d) 797, 225 Mo. App. 584; Hensler v. Stix et al., 113 Mo. App. 162; Luckel v. Century Bldg. Co., 177 Mo. 608; Roberts v. Schaper Stores Co., 318 Mo. 1190, 3 S.W. (2d) 241; Stroud v. Booth Cold Storage Co., 285 S.W. 165; Bartlett v. Pontiac Realty Co., 31 S.W. (2d) 279. (2) Instruction No. 1 is not an erroneous statement of the law of this case, under the doctrine of res ipsa loquitur; according to said doctrine the burden of bringing forward evidence shifts to defendant upon plaintiff's establishment of a prima facie case. McCloskey v. Koplar, 329 Mo. 527, 46 S.W. (2d) 557, 92 A.L.R. 941; Simpson v. Railway Co., 192 S.W. 739 (Mo.); Bond v. Railway Co., 315 Mo. 987, 288 S.W. 777; Downs v. Horton, 287 Mo. 414, 230 S.W. 103. (a) All the instructions in the case must be read together as one charge. Sneed v. St. Louis Public Service Co., 53 S.W. (2d) 1062; Tibbe v. Sayman, 61 S.W. (2d) 376; Prentiss v. Illinois Life Ins. Co., 225 S.W. 695; Parsons v. Himmelsbach, 68 S.W. (2d) 841. (3) The variance, if any, between the allegation and proof as to whether the escalator came to a full stop in connection with or prior to the sudden jerk, on which jerk liability is predicated, is immaterial, and the instruction was not prejudicially erroneous. Hesemann v. May Dept. Stores Co., supra; Roberts v. Schaper Stores Co., supra; Brewer v. Missouri Pacific R. Co., 259 S.W. 825; Howard v. The Scarritt Estate Co., 161 Mo. App. 552; Holland v. Metropolitan Street Ry. Co., 157 Mo. App. 476; Proctor v. City of Poplar Bluff, 184 S.W. 123. (a) Where facts are stated conjunctively in an instruction, even though strict proof fails as to part, yet if the facts which are supported by the evidence are adequate grounds for holding defendant liable, there is no prejudicial error in the giving of the instruction. Francis v. Willits, 30 S.W. (2d) 203; Corbin v. Railway Co., 41 S.W. (2d) 832; Rosenthal-Sloan Millinery Co. v. Insurance Co., 219 S.W. 669; Barker v. Hemphill Lumber Co., 217 S.W. 585; Gettemeyer v. Thies, 51 S.W. (2d) 868; McCleery v. City of Marshall, 65 S.W. (2d) 1041. (4) Defendant's evidence could not take the case outside the scope of the doctrine of res ipsa loquitur, especially where it did not clearly disclose the specific negligence which caused plaintiff's injury. Harke v. Haase, 75 S.W. (2d) 1001, l.c. 1003; McCloskey v. Koplar, supra; Gordon v. Muehling Packing Co., 40 S.W. (2d) 693, l.c. 701; Stroud v. Booth Cold Storage Co., supra; Bartlett v. Pontiac Realty Co., supra; Cecil v. Wells, 259 S.W. 844.

Joseph N. Hassett and Ernest E. Baker for appellant.

(1) The burden of proof was upon plaintiff to establish that she was injured by some negligence on the part of defendant, and it was reversible error to instruct the jury that defendant was required to prove that it was not guilty of any negligence, and that they might find for plaintiff without requiring the jury to find defendant was negligent. McCloskey v. Koplar, 329 Mo. 527; 46 S.W. (2d) 557; Harke v. Haase, 75 S.W. (2d) 1001; Sweeny v. Erving, 228 U.S. 233, 33 S. Ct. 416. (2) It was error to instruct the jury that if they found and believed from the evidence that the escalator did stop and thereafter did jerk, jar, and jolt, and that such action was unusual, then they might infer negligence, because there is no such evidence. Hoyt v. Kansas City Stock Yards, 188 S.W. 106. (3) The res ipsa loquitur doctrine does not apply where the defendant does not have exclusive control over the instrumentality complained of, or where the inference that plaintiff's injury may have resulted from the negligence of some third person is as reasonable as the inference that it resulted from defendant's negligence. Grindstaff v. J. Goldberg & Sons Struc. Steel Co., 40 S.W. (2d) 702; Removich v. Const. Co., 264 Mo. 43; McGrath v. St. Louis Transit Co., 197 Mo. 97; Fowler v. Electric Co., 143 Mo. App. 422.

SUTTON, C.

This is an action for personal injuries sustained by plaintiff while riding as a passenger on an escalator in defendant's store, resulting from a violent and unusual jerk, jar, or jolt of the escalator.

The trial, with a jury, resulted in a verdict and judgment for plaintiff for $2800, and defendant appeals.

Plaintiff testified as follows:

"On December 24, 1929, I was Christmas shopping in the basement of the store. I purchased a few pairs of gloves in the basement and then went to the escalator to go from the basement to the first floor. When I boarded the escalator I put both hands on the rails. When I got about two feet up the escalator, there was an unusual jerk — really would not call it a stop. It was a terrible jerk. I had gone about two feet and there was a terrible jerk that threw this woman that was in front of me on top of me, and threw my left leg backward and knocked me off my balance and my left knee struck the escalator. I was bearing most of my weight on my right leg as I was standing on the escalator, and that threw my left leg out of balance, and then when the escalator started going again, it started to run with an unusual jerk, something I never witnessed before on an escalator in all the times I have ridden on one. The lady in front of me fell back against my chest. I fell on my left knee. It threw my left leg off balance and knocked my knee from under me. I had no control of my knee, the escalator started with such an unusual jerk. My left leg was backward and my right leg forward. I did not start walking up the escalator when I boarded it, but stood still. I did not move my feet after I boarded the escalator until I was thrown. The escalator had moved only a short distance above the basement floor when I was thrown. The first thing that happened when I was on the escalator I cannot really say. It gave an awful jerk. I would not say it stopped, but it was something very unusual. All I know is that the escalator gave a terrible jerk and started out with another jerk."

Defendant adduced testimony to the effect that the escalator was regularly inspected, and that no mechanical defect in the escalator was reported on the day of plaintiff's injury. Also that the electric power by which the escalator was operated was supplied by the Union Electric Light and Power Company, and that said power company could stop or interrupt the electric current, thereby causing the escalator to stop.

At the instance of the plaintiff the court gave to the jury, among others, an instruction substantially as follows:

"The court instructs the jury that if you find and believe from the evidence that plaintiff was a passenger upon the escalator mentioned in evidence, and that while plaintiff was upon said escalator, the same stopped and violently jerked, jarred and jolted, and plaintiff was violently jerked, jarred, jolted and thrown, and that the action of the escalator, under the circumstances, was unusual and extraordinary, and that plaintiff was injured thereby, then you may infer that it was occasioned by some negligence of defendant, and the burden of bringing forward evidence is upon the defendant to rebut this inference of negligence and establish the fact that there was no negligence on its part, and that the injuries resulted from some cause which the highest degree of care would not have avoided."

At the instance of the defendant the court gave to the jury, among others, an instruction substantially as follows:

"The court instructs you that the burden is upon the plaintiff to establish by the greater weight of the evidence, that she was injured, and also that whatever injuries she sustained resulted from her being jerked, jarred, jolted, and thrown by the escalator coming to a sudden stop and violently jerking, jarring and jolting, and unless the plaintiff has so proven, you will return a verdict for the defendant."

Defendant complains of the plaintiff's instruction on the ground that it places upon the defendant the burden of showing that the unusual jerk, jar, or jolt of the escalator did not result from any negligence on its part.

Instructions similar to this, but much more favorable to the plaintiff, respecting the presumption arising and the burden imposed under the res ipsa loquitur rule, have received the approval of our Supreme Court for a half century or more.

In Lemon v. Chanslor, 68 Mo. 340, where plaintiff was injured by the breaking down of defendants' hack in which plaintiff was riding as a passenger, instructions telling the jury that the burden was on the defendant to prove to the satisfaction of the jury that the hack was safe, sound, and roadworthy, and carefully driven, and that the accident arose from and was caused by an inevitable accident, or a defect that could not have been seen, detected, or known to defendants by the exercise of the utmost skill, knowledge, foresight, care, inspection and examination of the hack, were approved. In approving the instructions the court quoted with approval from Stokes v. Saltonstall, 13 Peters 181, as follows:

"When damage or injury happens to the passenger by the breaking down or overturning of the coach, the presumption, prima facie, is that it occurred by the negligence of the coachman, and the onus probandi is on the proprietors of the coach to establish that there has...