May Department Stores Co. v. Bell

Citation61 F.2d 830
Decision Date12 November 1932
Docket NumberNo. 9453.,9453.
PartiesMAY DEPARTMENT STORES CO. v. BELL.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Ralph T. Finley, of St. Louis, Mo. (James C. Jones, Lon O. Hocker, Frank H. Sullivan, and Frank Y. Gladney, all of St. Louis, Mo., on the brief), for appellant.

William H. Allen, of St. Louis, Mo. (Mark D. Eagleton and John S. Marsalek, both of St. Louis, Mo., on the brief), for appellee.

Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.

SANBORN, Circuit Judge.

This appeal is from a judgment entered upon the verdict of the jury in an action brought by the appellee against the appellant to recover for personal injuries. The appellee will be referred to as the plaintiff, and the appellant as the defendant, as in the court below.

On April 5, 1928, the defendant was the proprietor of a department store in St. Louis, Mo., known as Famous & Barr Company. For the convenience of patrons who desired to descend from the first floor to the basement, the defendant operated an escalator or moving stairway. This was a device consisting of an endless belt passing from the first floor to the floor of the basement. The belt upon which the passengers rode had cleats upon its upper surface, and where the belt passed into and through the floor of the basement there was a metal plate referred to as a comb plate. This plate had eight teeth (fingers, prongs, or tines) between which passed the ribs of the descending cleats. The spaces between the teeth of the comb plate were sufficiently narrow so that the feet of passengers upon the belt could not enter the apertures between the teeth. The function of the comb plate was to remove the feet of passengers from the belt as they reached the basement floor, and thus to place them safely on the floor of the basement.

Jimmie Bell, the plaintiff, brought this action, alleging: "That on the aforesaid date one of the aforesaid teeth of said comb-plate was missing from said comb-plate thus permitting a space to exist which was sufficient to permit the plaintiff's foot to be caught therein, and plaintiff's foot was caught therein and was injured thereby, all of which occurred through negligence and carelessness on the part of the defendant, and as a direct and proximate result of said negligence and carelessness on the part of the defendant plaintiff was seriously and permanently injured." The defendant's answer was a general denial.

Two issues were thus presented for determination: (1) The issue of liability; (2) the issue of damages.

At the close of the testimony, the defendant moved for a directed verdict on the ground of the insufficiency of the evidence to support a verdict for the plaintiff. This motion was denied. In submitting the case, the court instructed the jury that the burden was upon the plaintiff to prove that the defendant was negligent, but also said: "This case, gentlemen, is what the law calls a res ipsa loquitur case. We use the Latin expression, which simply means, the thing speaks for itself, that is, an accident having occurred, and plaintiff being an invitee, a presumption of negligence arises, and that presumption will take the case to you gentlemen, unless it is rebutted by evidence coming into the case."

The defendant excepted to this instruction.

In submitting to the jury the issue of damages, the court gave the following instruction: "Of course, if you shall find and believe from the evidence that his (the plaintiff's) resistance was lowered, and that solely by reason of such resistance being lowered he took tuberculosis, when he would not have taken it but for the lowering of his resistance by the hurts to his foot, then you are warranted in finding that the tuberculosis from which, evidently, he had been suffering, but which is now, from the testimony of the witnesses, probably arrested, was thus indirectly caused by this hurt. If it was caused by this hurt, in the manner to which I have called your attention to, then you are warranted in considering that when you come to the question of compensation, should you reach that question."

This instruction was also excepted to by the defendant, because of insufficient evidence to justify a finding that the plaintiff's tubercular condition was the result of the injury to his foot.

Since the questions arising in connection with the issue of liability and those arising from the issue of damages are separate and distinct, they will be discussed separately in this opinion.

The first question is whether, under the evidence, the plaintiff was entitled to invoke the maxim "res ipsa loquitur."

The second question is whether, under the pleadings, the plaintiff was entitled to invoke that maxim.

The third question is whether, if the maxim applied under the plaintiff's pleadings and proof, the defendant's evidence so far rebutted the presumption or inference as to require the trial court to direct a verdict.

The fourth question is whether the evidence justified the court in permitting the jury, on the issue of damages, to take into consideration the plaintiff's tubercular condition, which was claimed to have been caused by the accident.

These questions will be discussed in their order.

1. In considering the question of the liability of the defendant, it is necessary to set out the substance of the testimony upon that issue.

It is uncontroverted that on April 5, 1928, Jimmie Bell, then four years of age, accompanied by his grandmother, was a passenger on the escalator, and that, as they reached the basement floor, the child's left foot was caught between the belt and the comb plate in the space occasioned by the breaking of one of the teeth of the comb plate. The grandmother testified as to the happening of the accident. William A. Kenny (a witness for the plaintiff), who had been employed by the defendant for nine years and who was an electrician at the store on the day of the accident, described the operation of the belt and comb plate, and said that he was called to release the plaintiff's foot and was obliged to remove the comb plate and to raise it; that he found the foot wedged in the aperture caused by the breaking of one of the teeth. On cross-examination, he said that the teeth of the comb plate are a part of the casting; that they extend from the plate in the form of a finger; that they were sometimes broken. He was asked what the common causes of breakage were, and said:

"Well, I couldn't say what the causes are. I have never seen one in the actual breaking, but I imagine it could be produced by some foreign substance getting in there, that is between the cleats and getting down under the prong putting a strain on it and breaking it, such as a heel, maybe.

"Q. Women's narrow, high heels, and umbrella tips? A. Yes, sir."

He testified that a supply of plates was kept; that the tooth which broke on this occasion broke close to the plate; that the break was a fresh one; that the escalator was made by a reputable manufacturer. The court inquired of him how often in his experience the teeth of the comb plate break, and he replied:

"Well, I couldn't say exactly, but they break off frequently enough to have us keep extra plates there in the place. I should say, in my time there, that I have changed plates where that has happened at least a half dozen times.

"Q. In what length of time? A. Nine years."

He further stated that what he would call a thorough inspection of the escalators was made once a week; that there was a general order to all of the maintenance force to watch always for anything wrong on an escalator, especially the teeth of the comb plate being missing and the cleats being broken; that the plates kept for emergencies were bought from the manufacturer of the escalator and were the same as those furnished with the escalator; that later the manufacturer put out a new plate with a reinforcing rib at the base of the teeth.

The plaintiff offered no other evidence upon the issue of liability.

The defendant's evidence on this issue was substantially as follows:

The chief engineer of Famous & Barr Company testified that there were in the store about ten escalators under his supervision; that these escalators were purchased from the largest manufacturer in the country; that there was an inspection of the escalators at different times each day, one in the morning about the time the store opened, again at noon, and again in the afternoon toward the close; that his foreman makes an inspection throughout the day, and that in going to and from the floors they ride the escalators and elevators to observe their operations and see that they are in running condition; that, if they find anything wrong with any escalator, it is immediately shut down and taken out of service; that at the head of each escalator there is some one to watch the operation and the passengers; that at the time of the accident there was some one in attendance; that he (the chief engineer) was then riding an upper floor escalator and had come up the escalator in question and had observed it, and was either up on the second or third floor; that, when informed of the accident, he went back to the basement; that one of the teeth of the comb plate had been broken off; that it was handed to him; that the break was a fresh one; that they had the tooth welded back upon the comb plate to be used as a spare. On cross-examination, he stated that broken comb plates were sent to a welding company for repair; that during his experience there had been no part of the escalator which had ever caused a tooth to break; that breakage had always been due to some outside contributing cause, such as umbrellas, or heels of ladies' shoes, or a cane, or something like that.

Betty Wallace testified that she was in attendance at the escalator at the time of the accident; that she stood on the first floor at the top of the escalator near a switch where she could turn off the power; that the first she knew...

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