Hecht Co. v. Jacobsen
|16 January 1950
|HECHT CO., Inc. v. JACOBSEN et al.
|U.S. Court of Appeals — District of Columbia Circuit
Mr. Austin F. Canfield, Washington, D. C., with whom Mr. Ralph F. Berlow, Washington, D. C., was on the brief, for appellant.
Before McALLISTER, sitting by designation, WILBUR K. MILLER and BAZELON, Circuit Judges.
This is an appeal from a judgment awarding damages to plaintiffs below because of defendant's negligence. The episode out of which this suit arose occurred in appellant-defendant's department store on November 15, 1945. At that time, Betty-Lynne Jacobsen (plaintiff-appellee), a four-year-old child, and her seven-year-old sister were accompanying their mother, who had been shopping at appellant's store. While the three were descending from the third to the second floor on an escalator, Betty-Lynne broke away from her mother, who had allegedly been holding the child's hand, and ran down the moving steps. Before her mother was able to overtake her, Betty-Lynne had fallen at the point just above the aperture where the escalator steps break and enter the floor. As she tried to arise, her right hand was caught in the aperture. The small finger of that hand was so badly injured that it had to be amputated that same day. The child also developed an unsightly scar which required plastic surgery.
According to the testimony, the escalator on which the accident occurred was a 1934 model and was functioning smoothly. (Most of the escalators used in the store were of 1941 construction, which model had a smaller aperture at the point where the steps disappeared into the floor than did the 1934 model.) The escalator's "stop" button was not conspicuously marked and there was no attendant at hand. Nor was there a warning sign calling attention to possible dangers. There was evidence, however, that the appliance had passed a District of Columbia inspection each year.
Suit was brought by the child's father in his own behalf for medical expenses and loss of services and, on the child's behalf, for injuries suffered by her. Both were awarded damages by the jury.
Appellant challenges the verdict below on four grounds: the standard of conduct prescribed by the lower court was incorrect; even if appellant were negligent, such negligence was not the proximate cause of the injury; the admission of certain evidence was prejudicial error; and the amount of damages awarded was excessive.
The standard of conduct required of owners and operators of elevators in the District of Columbia has been held to be the "highest degree of care" in the construction, maintenance and operation of those appliances.1 Like elevators, escalators are an "essential part of the building, and persons using them do so by the invitation of the defendant." Munsey v. Webb, 1913, 37 App.D.C. 185, 187. Such persons must constantly rely upon the care with which the owner has performed his obligation of selecting safe machinery and maintaining and guarding it properly. The lower court correctly regarded escalator and elevator as functional equivalents and hence subject to the same standard of care.2
The charge given to the jury below proceeded on the theory that there are three degrees of care and, upon the authority of the elevator cases, that appellant was obligated to exercise the "highest degree of care." In its very able explanation of the charge, however, the court recognized that, because of the greater danger involved in this case, "reasonable care under all the circumstances" required what was in effect the "highest degree of care." It was pointed out that the appellant's position "as an operator of an escalator" made it necessary that he (Emphasis supplied throughout.)
If such content had not been given to the "highest degree of care," and instead, the meaning thereof left entirely to the jury, we might well have been compelled to find error in the charge. Raymond v. Portland R. Co., 1905, 100 Me. 529, 62 A. 602, 604, 3 L.R.A., N.S., 94. But so implemented, the charge is satisfactory. See Note, 34 Harv.L.Rev. 789 (1921).
We do think, however, that it would have been more in accord with the modern authorities to discuss the standard of conduct required of appellant in terms of "reasonable care under all the circumstances."5 That formula contains within it the potential for flexibility in application which is necessary to deal with the infinite number of fact situations which may arise. It readily permits change with changing circumstances. Under such a view, the greater than ordinary danger posed by the existence of an escalator with an aperture between treads and floor large enough to catch hold of a child's hand, in a place frequented by children, would be among the circumstances to be called to the attention of the fact-finder, whether court or jury. If the escalator in use were found to be potentially dangerous, a factor to be weighed in determining whether the proper quantum of care had been exercised would be the adequacy of the compensatory precautions taken by the appellant, i. e., stationing of attendants, warning signs, etc. We believe that the instructions given to the jury below were entirely consistent with this view. But the possibility of confusion which may attend such a charge when not as well explained suggests the desirability of avoiding reference to "degrees of care."6 As said by the Colorado court in the leading case of Denver Consolidated Electric Co. v. Simpson, 1895, 21 Colo. 371, 41 P. 499, 501, 31 L.R.A. 566, involving a fallen electric power line which injured a pedestrian, 7
The charge of the court below with regard to standard of conduct correctly grasped the essentials of the concepts outlined above and, therefore, was not reversible error. The mere fact that reference was made to "degrees of care" does not alter the situation,8 for it is settled that a charge is to be viewed as a whole rather than divided into isolated segments.9 As we have already indicated, the statement that defendant was required to exercise "all due care, skill and foresight within reason," and that the circumstances varied the amount of care required, satisfactorily resolved the ambiguity which might otherwise have been present.
As to the question of proximate cause, appellant argues that it was the mother's failure to properly care for her child which caused the injury. We think that the owner of a department store must be held to be presumptively aware of the tendency of children to stray even from vigilant parents, especially when subjected to the varied fascinations found in such a store. It is with this tendency in mind that precautions should be taken. Thus,...
To continue readingRequest your trial
Doucette v. Vincent, 4586.
...is not admissible for the purpose of establishing the legal standard for conduct in negligence cases. Hecht Co. v. Jacobsen, 1950, 86 U.S.App.D.C. 81, 180 F. 2d 13, 17 and cases cited. The reason for this is that the standard in such cases is fixed by the substantive law as the conduct of t......
Edwards v. Consolidated Rail Corp.
...of Columbia "to show defendant's notice or knowledge of the ... dangerous condition that caused the accident." Hecht Co. v. Jacobsen, 180 F.2d 13, 17 (D.C.Cir.1950); accord, Capital Traction Co. v. Copland, 47 App. D.C. 152, 156-58 (D.C.App.1917). Such evidence is also admissible to show th......
Smith v. Arbaugh's Restaurant, Inc., 23748.
...30 This court has frequently noted that the current trend has aimed toward a single standard of care. See, e. g., Hecht Co. v. Jacobsen, 86 U.S.App.D.C. 81, 180 F.2d 13 (1950); Daisey v. Colonial Parking, Inc., supra note 7, 118 U.S.App. D.C. at 33-34, 331 F.2d at 779-780; Elgin v. District......
Frank R. Jelleff, Inc. v. Braden, 12768.
...ran no flammability tests on the fabric. 10 Hayes v. Glen Echo Park Co., 1954, 94 U.S.App.D.C. 103, 215 F.2d 34; Hecht Co. v. Jacobsen, 1950, 86 U.S.App.D.C. 81, 85, 180 F.2d 13; Capital Transit Co. v. Webb, 1944, 79 U.S.App.D.C. 58, 142 F.2d 757; Canadian-American Pharmaceutical Co. v. Coe......