Welch v. Rollman & Sons Co.

• Citation: 44 N.E.2d 726,70 Ohio App. 515
• Court: Ohio Court of Appeals
• Decision Date: 15 June 1942
• Parties: WELCH v. ROLLMAN & SONS CO.

70 Ohio App. 515
44 N.E.2d 726

WELCH
v.
ROLLMAN & SONS CO.

Court of Appeals of Ohio, First District, Hamilton County.

June 15, 1942.

Action by Viola Welch against Rollman & Sons Company to recover for injuries sustained by plaintiff while a passenger on an escalator under the sole control of the defendant. From a judgment in favor of the plaintiff, the defendant appeals.-[Editorial Statement.]

Judgment affirmed.

[44 N.E.2d 727]

Robert A. Black, of Cincinnati, for appellant.

Kunkel & Kunkel, of Cincinnati, for appellee.

ROSS, Judge.

This is an appeal on questions of law from a judgment of the court of common pleas of Hamilton county. The plaintiff was awarded $6,000 by a jury. The action was predicated upon injuries received by the plaintiff while a passenger upon an escalator, under the sole control of the defendant, which, it was alleged, suddenly jerked causing her to lose her balance and fall. It is further alleged that the defendant was negligent in not causing such escalator to stop after the plaintiff had fallen.

From the evidence, it appears that the plaintiff was a passenger upon an escalator

[44 N.E.2d 728]

in the department store of the defendant and was being carried from on floor down to a lower floor; that the escalator suddenly jerked, causing plaintiff to lose her balance and fall, being carried to the foot of the escalator before the same was caused to stop by the turning off of the electric power operating same.

The defense amounted to a claim that the escalator did not jerk and that the apparatus was so constructed that it was impossible for it to jerk as claimed, that once stopped it could not start again.

There was substantial evidence introduced, however, that the apparatus was under the sole control of the defendant, that it did suddenly jerk, that the plaintiff lost her balance and fell by reason of such sudden jerk, and that she was injured, and that such injuries were due solely to and proximately caused by such jerk and fall. The plaintiff was unable to explain, and made no effort to explain, what caused the apparatus to jerk. The defendant did not attempt to explain the cause of the jerk, for two reasons: First, it denied that such jerk took place, and introduced evidence to that effect. Second, it introduced evidence to prove that it was impossible for such an occurrence to have happened, by reason of the character of the mechanism employed. In the briefs of counsel for defendant, the rule laid down in Black v. City of Berea, 137 Ohio St. 611, at page 627, 32 N.E.2d 1, at page 9, 132 A.L.R. 1391, is relied upon as sustaining such defense: ‘As stated by Blashfield in his Cyclopedia of Automobile Law and Practice, Permanent Edition, Volume 10, § 6554, page 146: ‘Where facts testified to are opposed to all natural laws and common experience, so that it is inconceivable that any such thing could have occurred, courts will refuse to believe it, on the ground that they will take judicial notice of its incredibility.’'

The complicated mechanism employed in the operation of an escalator certainly does not present to either court or jury such a manifestation of either ‘natural laws' or ‘common experience’ as would justify either court or jury coming to a conclusion that the substantial evidence of the plaintiff that t jerk occurred was unworthy of belief and that ‘it is inconceivable that any such thing could have occurred.’

The effect of the contention of the defendant is to all intents and purposes a claim that the plaintiff introduced no evidence to sustain her cause of action and that, therefore, that the defendant should have had judgment either because of predominating evidence of the defendant or that there was no evidence to sustain the plaintiff.

Certainly, it cannot be maintained that the plaintiff had no substantial evidence to sustain her case, or that reasonable minds could reach but one conclusion, and that adverse to the plaintiff.

Such being the case, the facts proved presented an issue of fact for the jury. In Hamden Lodge, etc., v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246, the 4th paragraph of the syllabus is: ‘Where from the evidence reasonable minds may reasonably reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict in the weight of the evidence.’ We do not find its verdict was against the weight of the evidence.

What has been said applies with equal force to the contention of the defendant that the plaintiff did not sustain her claim to injury proximately caused by the defective operation of the escalator.

It is also asserted by the defendant that there was a complete failure of proof of negligence. Such a contention ignores the evidence which demonstrated injury to plaintiff caused by an agency wholly under the control of defendant; no reasonable explanation being given exonerating the defendant of blame in the operating of the mechanism.

It is to be observed also that the defendant owed to the plaintiff as a common carrier the highest degree of care. May Department Stores v. McBride, 124 Ohio St. 264, 178 N.E. 12.

The doctrine of res ipsa loquitur is stated by the Supreme Court in Weller, Ex'r, v. Worstall, 129 Ohio St. 596, pages, 600, 601, 196 N.E. 637, page 639:

‘That doctrine is a rule of evidence peculiar to the law...