White v. Sears, Roebuck and Company

• Citation: 66 ALR 2d 491,242 F.2d 821
• Decision Date: 12 March 1957
• Docket Number: No. 7315.,7315.
• Parties: Mrs. Gladys B. WHITE, Appellant, v. SEARS, ROEBUCK AND COMPANY, a corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

66 ALR 2d 491, 242 F.2d 821 (1957)

Mrs. Gladys B. WHITE, Appellant, v. SEARS, ROEBUCK AND COMPANY, a corporation, Appellee.

No. 7315.

United States Court of Appeals Fourth Circuit.

Argued January 22, 1957.

Decided March 12, 1957.

Sidney H. Kelsey, Norfolk, Va. (L. David Lindauer, Norfolk, Va., on brief), for appellant.

Thomas H. Willcox, Norfolk, Va. (Willcox, Cooke & Willcox, Norfolk, Va., on brief), for appellee.

Before PARKER, Chief Judge, and HARRY E. WATKINS and GILLIAM, District Judges.

HARRY E. WATKINS, District Judge.

The principal question here is whether the doctrine of res ipsa loquitur is applicable in a case where the plaintiff falls when stepping on a slippery foreign substance on the step of an escalator while a customer in defendant's store. The District Court thought that such doctrine was not applicable in this case, and we agree.

On March 31, 1955, plaintiff was a customer in defendant's store at Norfolk, Va., and while being transported from the second to the first floor of the store by an escalator provided for the use of customers, she slipped and fell. She claims that her fall was caused by the presence of a slick, colorless, oily substance on the step of the escalator upon which she stepped. Defendant denies the presence of any such foreign substance on the escalator and says the cause of her fall was (as stated by her to three different witnesses on the date of the accident) that her little grandson who was with her ran against her legs, or attempted to run by her, and caused her to fall. The jury returned a verdict for the defendant, and plaintiff has appealed.

Plaintiff alleges error in the court's charge to the jury in two respects: first, in refusing to apply the doctrine of res ipsa loquitur, and, second, in charging the jury that in order for the plaintiff to recover on the theory of a foreign substance being on the escalator step, the plaintiff must show that the defendant knew of that condition, or in the exercise of the highest degree of care known to human foresight should have known of that condition.

Points one and two involve a single question, for if the doctrine of res ipsa loquitur is applicable then no question of notice arises, but if the doctrine is inapplicable, then actual or constructive notice must be shown to establish negligence. To establish negligence on the part of the defendant store with reference to the presence of the foreign substance, under the facts of this case, it is necessary for the plaintiff to show that the defendant knew, or by exercising the highest degree of care should have known, that this foreign substance was present. Such constructive notice can be shown in foreign substance cases by showing that the substance had remained on the escalator for such a period of time that by the exercise of the highest degree of care the defendant should have known of its presence.

The escalator in question is of aluminum construction. The treads of the steps are formed of parallel aluminum strips with a 3/16 inch groove between them. There is a metal comb-plate at the point where the steps appear at floor level, with a tooth of the comb in each groove. That comb-plate scrapes off anything which exceeds 1/32 inch in thickness. Plaintiff alleges negligence on the part of the defendant in failing to provide a brush or similar device which would remove substances of less than 1/32 inch while the escalator is in motion. The evidence does not indicate, however, that any other escalator has such a brush, or that any such brush has ever been made, or that any brushes would have removed from the escalator the type of substance involved here.

There is no evidence in the record that defendant had put any oily substance on the escalator, or had knowledge of any such foreign substance being there before or after the fall. If the foreign substance was on the step, there is no evidence as to where it came from, who put it there, or how long it had been there prior to the accident. There is nothing connected with the escalator from which any grease or liquid could get on a step of the escalator. The escalator had been inspected by the defendant on the day of the accident before the store opened, twice during the forenoon of that day while it was in operation, and twice during the afternoon of that day, prior to the accident. On all of these inspections the escalator was in good condition and free of any foreign substance.

Appellant cites as the leading case in Virginia on res ipsa loquitur in elevator injury cases Murphy's Hotel v. Cuddy's Adm'r, 124 Va. 207, 97 S.E. 794. The case establishes that in Virginia owners of elevators are common carriers and held to the highest degree of care known to human prudence. The same law is elsewhere generally applied to owners of escalators as is applied to owners of elevators. 18 Am.Jur., Elevators and Escalators, Sec. 84, p. 567; Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 139 A. 878. In the Murphy's Hotel case, the state court held that the doctrine of res ipsa loquitur was applicable in a case brought for a personal injury sustained in an elevator, but it is to be noted that the injury came about either through mechanical failure or improper operation by the hotel employee, and not by reason of any foreign substance.

Appellant cites some escalator cases from other jurisdictions where the doctrine has been invoked, and we have found many more such cases, but we have encountered none concerning accidents caused by foreign matter on the escalator. Most such cases have involved children getting their fingers caught in the escalator, ladies getting their heels caught in the escalator, and people being thrown down when the escalator jerked. Conway v. Boston El. R. Co., 255 Mass. 571, 152 N.E. 94; L. S. Ayres & Co., v. Hicks, Ind.App., 34 N.E.2d 177, remanded 219 Ind. 348, 38 N.E.2d 577, superseded 40 N.E.2d 334, rehearing denied 220 Ind. 86, 41 N.E.2d 195, 356; Burdine's Inc. v. McConnell, 146 Fla. 512, 1 So.2d 462; DuBois v. Boston El. R. Co., 276 Mass. 98, 176 N.E. 920; Richter v. L. Bamberger & Co., 165 A. 289, 11 N.J.Misc. 229; May Department Stores Co. v. McBride, 124 Ohio St. 264, 178 N.E. 12; Welch v. Rollman & Sons Co., 70 Ohio App. 515, 44 N.E.2d 726; Fuller v. Wurzburg Dry Goods Co., 192 Mich. 447, 158 N.W. 1026; Petrie...