King v. J. C. Penney Co.

• Citation: 238 S.C. 336,120 S.E.2d 229
• Decision Date: 15 May 1961
• Docket Number: No. 17784,17784
• Court: South Carolina Supreme Court
• Parties: Mrs. George H. KING, Respondent, v. J. C. PENNEY COMPANY, Appellant.

Page 229

120 S.E.2d 229

238 S.C. 336

Mrs. George H. KING, Respondent, v. J. C. PENNEY COMPANY, Appellant.

No. 17784.

Supreme Court of South Carolina.

May 15, 1961.

Price & Poag, Greenville, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

TAYLOR, Acting Chief Justice.

This appeal comes from the Court of Common Pleas for Greenville County where plaintiff brought an action to recover damages for personal injuries allegedly occasioned while using the escalator in defendant's store.

Timely motions were made for nonsuit, directed verdict, and judgment n. o. v., all upon the ground that there was no evidence of negligence on the part of defendant which would justify submitting the case to the jury. These motions were denied and defendant appeals.

Defendant has in use in its store in the City of Greenville an escalator for the use of its patrons; and plaintiff used this escalator on a number of occasions prior to and including the day in question when she ascended to the second floor. With her at the time were a friend, a Mrs. Smith, and plaintiff's crippled daughter, four year old Karen King. Plaintiff testified that when the daughter stepped upon the escalator it 'jerked and she fell * * *. I reached to get her. I stepped on the escalator and it gave a jerk and I went down * * *. The step comes out and goes down * * *. It hit me at least 12 or 15 times * * *. I got to my feet and rode the escalator down.'

The child fell when she first stepped on the escalator; and on cross-examination, plaintiff, in further describing what occurred, stated that 'it jerked the child out of my hand * * *. When I stepped on I was jerked down too.'

Plaintiff was administered first aid to her leg then went to the shoe department where she purchased a pair of 'slides,' at which time she asked the man who sold her the shoes 'why there wasn't one person designated to stop the escalator in case of an accident and he said all the clerks had been instructed and cautioned to listen for screams and to watch and if an accident occurred to turn the escalator off.' Thereafter, she went to the doctor's office where he 'put some medicine on the leg and tied it up in an elastic bandage.' Approximately nine months after the injury, she visited the doctor for treatment of a back condition which allegedly had been aggravated by the fall.

Plaintiff's other witness, Mrs. Smith, who had accompanied plaintiff on the occasion, testified that when the child stepped on the escalator 'something jerked' and the mother reached down to get her daughter and fell. Mrs. Smith signed a written statement prior to time of trial in which no mention was made of the escalator jerking but stating that plaintiff lost her balance when she reached for the child. Upon trial, however, she testified that the jerk caused Mrs. King to lose her balance.

There is uncontradicted testimony to the effect that the escalator in question is a standard type, single file Peeley Motor Stairs escalator, equipped with an automatic safety device, which in case of a jerk or change in speed would become activated, automatically stopping the escalator immediately, and that stop bottons for manually stopping the escalator were located at top and bottom.

South Carolina has consistently refused to adopt the doctrine of res ipsa loquitur although it is the law in many other jurisdictions. In this State it is well settled that the burden rests upon the party...