SS Kresge Co. v. McCallion

• Decision Date: 19 April 1932
• Docket Number: No. 9344.,9344.
• Citation: 58 F.2d 931
• Parties: S. S. KRESGE CO. v. McCALLION.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F.2d 931 (1932)

S. S. KRESGE CO. v. McCALLION.

No. 9344.

Circuit Court of Appeals, Eighth Circuit.

April 19, 1932.

Richard S. Righter, of Kansas City, Mo. (George J. Mersereau and Lathrop, Crane, Reynolds, Sawyer & Mersereau, all of Kansas City, Mo., on the brief), for appellant.

W. J. Allen, of Kansas City, Mo. (Roy E. Smith and D. D. Bonewits, both of Kansas City, Mo., on the brief), for appellee.

Before STONE, KENYON, and GARDNER, Circuit Judges.

STONE, Circuit Judge.

This is an appeal from a judgment accorded plaintiff in a personal injury suit.

The petition alleged that plaintiff, while a customer in the store of defendant on December 15, 1923, slipped upon a metal plate and fell while leaving an escalator on the second floor after coming up on the escalator from the first floor. This metal plate covered the place where a person coming up on the escalator must step from the continuously moving escalator. It was located slightly beyond the second floor opening of the escalator. At the right of this landing place was a handrail for use of persons stepping off of the escalator. The negligence alleged was that the plate was "old, slick, oily, worn, uneven, defective and unsafe," and that plaintiff's way in using the rail was obstructed by persons about the handrail. The issues here are not concerned with the measure or anything in connection with the damages. They relate to the right of recovery.

The claimed errors argued here are of three kinds: (1) Insufficiency of evidence, (2) portions of the charge given, and (3) admission of evidence.

I. Sufficiency of Evidence.

In the argument of this matter, the main stress is placed upon the degree of care due from appellant. This situation arises from the following: It is appellant's position that, under Missouri decisions, liability cannot be predicated merely upon the "smoothness of the plate" where appellee slipped. These Missouri decisions and the resulting rule seem to have been applied only to situations where there was no legal relation which required more than ordinary care, such as where a person is walking over a floor (Cluett v. Union El. L. & P. Co. Mo. Sup. 220 S. W. 865; Koenig v. Heitz Mo. App. 282 S. W. 107; Mullen v. Sensenbrenner Mer. Co. Mo. Sup. 260 S. W. 982, 33 A. L. R. 176), or up or down steps (Myers v. Strauss Mo. Sup. 264 S. W. 801; Lappin v. St. Louis N. L. B. B. Club Mo. App. 33 S.W.(2d) 1025; Williams v. Kansas City T. Ry. Co., 288 Mo. 11, 231 S. W. 954). Appellant seeks to confine this case to that rule and thinks it is applicable to the situation presented by the present facts. Since the trial court charged that appellant was a carrier and owed a high degree of care, and that this relation and care covered the place and act of alighting from the escalator, appellant attacks the idea that it was a carrier and also that, if it were a carrier, such relation extended to the place and act of alighting on the plate.

In attempting definitions of care in the law of negligence, courts have endeavored to make certain classifications and have announced rules. These attempts are rather futile and meaningless and difficult of practical application and use. Note to St. Louis I. M. & S. Ry. Co. v. Woods, 33 L. R. A. (N. S.) 855. In all situations, the rule is that the legally required degree of care is such care as a reasonably prudent man would exercise in view of all of the surrounding circumstances. The effect of further attempts at classified definitions is simply to declare that certain "surrounding circumstances" require more care than do others. This thought is recognized in a late Missouri case (Capstick v. T. M. Sayman Products Co., 327 Mo. 1, 34 S.W.(2d) 480), where liability was announced where a person fell on a poorly lighted, worn, concrete stairway which was made slippery by being wet, although, in the cases cited above, a wet or slippery step or floor in plain view was held no basis for liability.

It is true that the general situation or set of surrounding circumstances affecting the carriage of persons has caused the courts to announce a rule that such carrier owes a "high degree" of care to its passengers, but this is no departure from the general rule of ordinary care under all the surrounding circumstances. However, since such rule as to carriers is universally recognized and applied, we consider this case with that in view. Obviously, if this escalator is to be classed as a carrier, the carrier rule is applicable. Appellant contends that the distinguishing test of a carrier within this rule is the danger of serious injury from the mode of carriage. This danger may well be an important element, or "circumstance," to be always considered when the care of a carrier toward its passenger is in question, but we would be slow to say that it is the acid test. However, if it is to be regarded as the prime test, we see no reason why it should not apply here. An escalator carries people, often many at the same time, from one floor of a building to another. It seems clear that there is the possibility of great injury in its operation. Suppose the steps should suddenly fold up hurling the people upon it down to the lower floor in a heap or should violently stop or start while a person is being carried on the steps. For instances, see Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 139 A. 878, and McBride v. May Dept. Stores Co., 39 Ohio App. 420, 177 N. E. 773. It can well be regarded as a "carrier" within the meaning of this rule as to negligence and care. Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 139 A. 878; McBride v. May Dept. Stores Co., 39 Ohio App. 420, 177 N. E. 773. Whether the escalator is technically a "carrier" or not is really not vital, since the nature of this form of transportation is such that the same degree of care should, at least by analogy, be required. In an elevator case, Judge (later Justice) Lurton (Mitchell v. Marker C. C. A. 62 F. 139, 142, 25 L. R. A. 33) said: "We see no distinction in principle between the degree of care required from a carrier of passengers horizontally, by means of railway cars or stagecoaches, and one who carries them vertically, by means of a passenger elevator. The degree of care required from carriers by railway or stagecoach is the highest degree." Similarly, we see no distinction in principle in the care required in transporting persons from one floor to another on an escalator slanted at forty-five degrees.

If it is to be so classified, it is obvious that this relation obtains during the alighting therefrom. Such is the view as to other kinds of carriers. McDermed v. Baker (Mo. App.) 20 S.W.(2d) 597, 598; Rearden v. St. Louis & S. F. R. Co., 215 Mo. 105, 131, 114 S. W. 961; Fillingham v. St. Louis Transit Co., 102 Mo. App. 573, 77 S. W. 314, 317; New York, N. H. & H. R. Co. v. Lincoln, 223 F. 896, 899 (C. C. A. 2); Topp v. United Railways, etc., Co., 99 Md. 630, 59 A. 52, 54, 1 Ann. Cas. 912; Roberts v. Atl. Coast L. R. Co., 155 N. C. 79, 70 S. E. 1080, 1082; Pennsylvania Co. v. McCaffrey, 173 Ill. 169, 50 N. E. 713, 714; 4 R. C. L. 1158. It should even more clearly be the rule as to escalators, because in other kinds of carriage the vehicle is supposed to be stationary at the time of alighting while the escalator does not alter its speed and the passenger must alight while it is moving and usually within a confined time and space and here at an angle.

Clearly, it is not due care to furnish a slippery surface at the only place where the passenger must step from a moving escalator. The evidence here is abundant that this was just what appellant did.

II. Charge of the Court.

The first attack upon the charge is that it stated appellant was a carrier and owed the care of a carrier to appellee. That we have treated about. In so doing, the court endeavored to declare the degree of care so due.

Another attack upon the charge is that in one portion the court stated there could be liability if appellant was guilty "of even slight negligence." The court repeatedly defined negligence, as applicable to appellant, as being a failure to "use the highest degree of care which prudent men would observe in like business and under like circumstances to safely carry its customers to said second floor of said store and to enable them to alight thereon in safety." We think this a correct definition, under the carrier rule, and see no departure therefrom in the above expression. Particularly, is this true when taken in connection with the entire sentence of which this is a part. The same expression is used in connection with the definition of contributory negligence.

A further attack is upon another expression in the charge that "it was the duty of the carrier to provide, as the court has heretofore instructed you, a place for her to alight that would not cause her to suffer injury." The emphasis and objection is aimed at the language, "a place for her to alight that would not cause her to suffer injury." The contention is that this amounted to placing the duty of a positive insurer of safety upon appellant. If this language stood alone in the charge as the only definition or as a separate definition of the duty owing by the appellant, there might be force to the argument, but it is neither. Not only had the court repeatedly defined the duty of appellant to be the exercise of "the highest degree of care which prudent men would observe in like business and under like circumstances to safely carry its customers," but the same definition is in the very sentence which ends with this language under attack, and this language is immediately preceded by the statement, "as the court has heretofore instructed you," which could refer to nothing else than the oft-repeated definition. In fact, the next preceding sentence again admonished the jury that appellee was "required" by preponderance of the testimony to prove "that the defendant was negligent in carrying her as a passenger on its...