L.S. Ayres Company v. Hicks

The appellee recovered a judgment against the appellant for personal injuries. The assigned errors relate to the overruling of the appellant's motion for a judgment on the interrogatories and the answers thereto and the motion for a new trial. Under the motion for a new trial it is charged that the verdict is not sustained by sufficient evidence; that it is contrary to law; that there was error in the giving and refusal of certain instructions; that appellee's counsel was guilty of misconduct; and that the damages are excessive.

John Hicks, the appellee, a six-year-old boy, visited the appellant's department store in company with his mother, who was engaged in shopping. While descending from the third floor on an escalator, the appellee fell at the second floor landing and some fingers of both his hands were caught in the moving parts of the escalator at the place where it disappears into the floor.

The appellee's complaint contained five distinct charges of negligence, as follows:

"1. In operating an escalator so constructed as to leave sufficient space between said ribs, said comb-plate and the teeth thereof to permit the fingers of small children, including plaintiff, to become caught and wedged therein when said escalator could then and prior thereto have been so constructed as defendant knew or should have known with ribs so close together and passing between the teeth and under the comb-plate with so little space between that fingers of children could not have been entangled or wedged therein.

"2. In failing to have a proper guard placed over the teeth of said comb-plate and the openings between said teeth to prevent objects and particularly fingers and other parts of the body of passengers on said escalators which might be drawn therein from being caught therein.

"3. In failing to take proper steps to stop the movement of said escalator with reasonable promptness when it knew, or by exercise of reasonable care should have known, of plaintiff's position of peril. That the means taken by defendant, if any, with reference to safeguarding passengers upon said escalators by having employees in a position to observe the same and stop said operation in the event of an accident, and the facts with reference to the stopping of the escalator after plaintiff's said fall are unknown to plaintiff, but are fully known to the defendant.

"4. In failing to take proper steps for the immediate release of plaintiff from said escalator following said accident. That the means taken by defendant with reference to reversing such mechanism upon the happening of an accident and the means adopted by defendant with reference thereto after plaintiff's said fall are unknown to plaintiff, except as hereinbefore stated, but are fully known to defendant.

"5. In failing to equip said mechanism so that it could be instantly reversed at or near the point of the accident in order to extricate therefrom persons who might become caught or entangled therein."

On review only the pleadings, the general verdict, and the interrogatories and answers will be considered in determining whether a judgment should have been entered on the answers 1. to interrogatories. The evidence actually introduced at the trial will not be considered, but the court will suppose any evidence that might properly have been introduced under the issues. 2 Watson's Works Practice, § 1903.

The jury found that the escalators with which the appellant's store was equipped were purchased and installed in 1934; that no escalator was made prior to the accident that was safer than the one in use; that it was not the practice of stores installing escalators to have an attendant after a year; that the escalator on which appellee was injured was equipped with switch buttons at each floor landing by which it could be stopped in about 2 1/2 steps; that appellant had clerks working within 50 feet of the place where appellee was injured, all of whom had not been instructed how to stop the escalator; that the escalator was moving at the rate of 90 feet per minute; that appellee's fingers were caught in the mechanism practically as soon as he fell; that the escalator ran "approximately 70 steps (of 15 inches) or more" before it was stopped; that it was from 3 to 5 minutes after appellee was first injured before his fingers were released; and that the appellee's injuries were increased by the grinding effect on his fingers which continued until the escalator was stopped.

The appellant asserts that it affirmatively appears from the answers to the interrogatories that it was not guilty of any act or omission of negligence charged 2, 3. in the complaint. The facts found by the jury conclusively establish that the appellant was not negligent with respect to the choice, construction, or manner of operating the escalator. This being true, there could have been no incidental duty on the appellant to anticipate an accident, to instruct its employees, or to keep someone in attendance when the machine was in operation. One is not bound to guard against a happening which there is no reason to anticipate or expect.Parry Mfg. Co. v. Eaton (1908), 41 Ind. App. 81, 83 N.E. 510. Having concluded that the appellant was not responsible for the appellee's initial injury, the question arises whether it may, nevertheless, be held liable for an aggravation of such injury, and, if so, under what circumstances.

It may be observed, on the outset, that there is no general duty to go to the rescue of a person who is in peril. So, in Hurley, Adm. v. Eddingfield (1901), 156 Ind. 416, 59 4, 5. N.E. 1058, 83 Am. St. Rep. 198, 53 L.R.A. 135, it was held that a physician was not liable for failing without any reason to go to the aid of one who was violently ill and who died from want of medical attention which was otherwise unavailable. The effect of this rule was aptly illustrated by Carpenter, C.J., in Buch v. Amory Manufacturing Co. (1897),69 N.H. 257, 260, 44 A. 809, 810, 76 Am. St. Rep. 163, 165, as follows:

"With purely moral obligations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved."

There may be principles of social conduct so universally recognized as to be demanded that they be observed as a legal duty, and the relationship of the parties may impose obligations that would not otherwise exist. Thus, it has been said that, under some circumstances, moral and humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person. Failure to render assistance in such a situation may constitute actionable negligence if the injury is aggravated through lack of due care. 38 Am. Jur. Negligence, § 16, p. 658, 69 L.R.A. 533. The case of Depue v. Flatau (1907), 100 Minn. 299, 111 N.W. 1, 8 L.R.A. (N.S.) 485, lends support to this rule. It was there held that one who invited into his house a cattle buyer who called to inspect cattle which were for sale owed him the duty, upon discovering that he had been taken severely ill, not to expose him to danger on a cold winter night by sending him away unattended while he was in a fainting and helpless condition.

After holding that a railroad company was liable for failing to provide medical and surgical assistance to an employee who was injured without its fault but who was rendered helpless, by reason of which the employee's injuries were aggravated, it was said with the subsequent approval of this court, in TippecanoeLoan, etc., Co. v. Cleveland, etc., R. Co. (1915),57 Ind. App. 644, 649, 650, 104 N.E. 866, 868, 106 N.E. 739:

"In some jurisdictions the doctrine has been extended much further than we are required to go in deciding this case. It has been held to apply to cases where one party has been so injured as to render him helpless by an instrumentality under the control of another, even though no relation of master and servant, or carrier and passenger existed at the time. It has been said that the mere happening of an accident of this kind creates a relation which gives rise to a legal duty to render such aid to the injured party as may be reasonably necessary to save his life, or to prevent a serious aggravation of his injuries, and that this subsequent duty does not depend upon the negligence of the one party, or the freedom of the other party from contributory negligence, but that it exists irrespective of any legal responsibility for the original injury."

From the above cases it may be deduced that there may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the injury resulted from use of an instrumentality under the control of the defendant. Such an obligation may exist although the accident or original injury was caused by the negligence of the plaintiff or through that of a third person and without any fault on the part of the defendant. Other relationships may impose a like obligation, but it is not necessary to pursue that inquiry further at this time.

In the case at bar the appellee was an invitee and he received his initial injury in using an instrumentality provided by the appellant and under its control. Under the rule stated 6-8. above and on the authority of the cases cited this was a sufficient relationship to impose a duty upon the appellant. Since the duty with which we are presently concerned arose after the appellee's initial injury occurred, the appellant cannot be charged with its anticipation or prevention but only with failure to exercise reasonable care to avoid aggravation. The measure of that duty is not unlike that imposed by the rule of the last clear chance or doctrine of discovered peril, though it should be observed that the last mentioned rule imposes a negative rather than an affirmative obligation and does not depend upon the relationship of the parties. To invoke the application of the last clear chance as it has been defined in this State, the defendant must have had knowledge of the plaintiff's situation of peril and of his helpless condition and, thereafter, have failed to exercise reasonable care to avoid harming him. Southern R. Co. v. Wahl (1925), 196 Ind. 581,149 N.E. 72. The same rule must be applied in the case at bar. The third charge of negligence already quoted invoked the application of this rule and, upon that theory, the facts found by the jury are not incompatible with the general verdict. There was, consequently, no error in overruling the appellant's motion for a judgment on the answers to the interrogatories.

In the sixth instruction tendered by the appellee and given by the court the jury was told that "In determining the amount of damages which you will award plaintiff, it is proper to 9. consider every phase of his injuries, as charged in the complaint, and which you find have been established by a preponderance of the evidence." All of the appellee's injuries including those initially suffered and those which might be said to be the result of the appellant's negligence were charged in the complaint and the subject of the evidence. The above instruction is, therefore, erroneous. In no event could the appellant be held liable for injuries that were not the proximate result of its negligence. The apportionment of the damages under such circumstances has been recognized by the practice in this State. In The Standard Oil Company v. Bowker (1895),141 Ind. 12, 17, 40 N.E. 128, 130, which was an action for personal injuries, we find the following language:

"It is argued further that the appellee, having disobeyed the instructions of his physician, in taking improper exercise, contributed to his diseased condition. While this may be true that fact would not deprive him of damages for the original injury, but would probably permit an inquiry as to the extent of the injury sustained alone from the fault of the appellant."

The Louisville, New Albany and Chicago Railway Company v.Falvey (1885), 104 Ind. 409, 424, 3 N.E. 389, 397, 4 N.E. 908, was a similar case to the one from which we have just quoted. In the latter case the following instruction was approved:

"``It was the duty of the plaintiff to use ordinary care, judgment and diligence in securing medical or surgical aid after she received the injuries complained of, if any she received, and if you find from the evidence that after she received such injuries, if any she did receive, she failed to use such ordinary care, judgment and diligence in procuring timely medical or surgical aid; and if you further find from the evidence that, by reason of such failure, her condition is now different and worse than it would have been if she had used such ordinary care, judgment and diligence in the premises, then, if you find for the plaintiff, you should take this into account in making up your verdict, and should not allow her any damages for ailments and diseases, if any, that may have resulted from such failure.'"

While the above cases arose on factual situations different from the case at bar, the principles stated therein are applicable. Since the appellee was only entitled to 10. recover for an aggravation of his injuries, the jury should have been limited and restricted in assessing the damages to the injuries that were the proximate result of the appellant's actionable negligence.

This opinion might be extended, but in view of the fact that a new trial will be ordered it is not deemed necessary or proper to say more. Both parties are represented by able counsel and the case was unusually well tried. It is unlikely that the alleged errors not discussed will recur.

The judgment is reversed with directions to sustain the appellant's motion for a new trial.

NOTE. — Reported in 40 N.E.2d 334.