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J. C. Penney Co. v. Livingston

October 8, 1954

J. C. PENNEY COMPANY, A CORPORATION, APPELLANT,
v.
WILLIAM J. LIVINGSTON, JR., BY HIS FATHER AND NEXT FRIEND, WILLIAM J. LIVINGSTON, APPELLEE



Combs

William J. Livingston, Jr., age 22 months, who resided with his parents in Newport, sustained an injury to his right hand while riding on an escalator in a J. C. Penney Store in Cincinnati, Ohio. In this action filed in his behalf by his father, the jury returned a verdict for plaintiff in the amount of $10,000. The Company has appealed.

A brief resume of the facts is necessary. Plaintiff's sister, age 14 took him with her from Newport to Cincinnati and the children went into defendant's store to buy a shirt for plaintiff. They rode to the fourth floor on an escalator and were descending by the same method when plaintiff was injured. The accident occurred between the third and second floors. Plaintiff's sister testified she was holding her brother's left hand in her right hand when suddenly he "hollered.' She saw then that his "hand was caught in the step behind him.' No one could explain how the child's hand got caught. Plaintiff relied for recovery on the principle of res ipsa loquitur.

The escalator had been installed by the Otis Elevator Company in 1946. It is operated by an electric motor concealed beneath the floor. The parts of the escalator exposed to the public are the steps, which flatten out to nearly a smooth surface at the floor level, and the hand rail. The clearance between the outside edges of the steps and the side of the escalator is supposed to be not more than 3/32 of an inch. The escalator is started and stopped in the morning and at night by an employee of the store.

The Company contends that plaintiff has pleaded negligence in specific terms, and that in order to recover he must prove the specific acts charged. The basis of this contention is the statement in plaintiff's amended petition that:

"* * * The defendant was negligent and careless in installing, maintaining and operating said escalator in such manner and so equipped that injuries suffered by the plaintiff, as alleged in the petition, could be suffered by him when using said escalator * * *.'

However, this statement was preceded by this:

"* * * the plaintiff does not know and therefore cannot allege which or what mechanical defect in said escalator or the operation of same caused his injury as alleged in the petition * * *.'

We do not regard this as a plea of specific acts of negligence.

The allegations, when considered together, amount merely to a statement that plaintiff did not know what caused his injury but that defendant was negligent in installing, maintaining and operating the escalator.

Even if the petition did allege specific acts of negligence in addition to the plea of res ipsa loquitur, plaintiff would not for that reason be deprived of the benefit of the doctrine. He would still be entitled to the benefit of the doctrine to the extent it might tend to establish the particular acts of negligence alleged. Wallace v. Norris, 310 Ky. 424, 220 S.W.2d 967; Kroger Grocery & Baking Co. v. Stevenson, Ky., 244 S.W.2d 732.

The main question is whether this is a res ipsa loquitur case. Defendant insists it is not.

In line with the weight of authority, this court has held that the principle of res ipsa loquitur may be invoked only when there are present three essential elements: (1) the instrumentality must be under the control of the defendant; (2) the circumstances, according to common knowledge and experience, must create a clear inference that the accident would not have happened if the defendant had not been negligent; (3) the plaintiff's injury must have resulted from the accident. Lewis v. Wolk, 312 Ky. 536, 228 S.W.2d 432, 16 A.L.R.2d 974.

We conclude that all three elements are present here. Admittedly, the escalator was under the control of the defendant, and admittedly plaintiff's injury resulted from the accident.

That brings us to the crucial question: Do the circumstances, according to common knowledge and experience, create a clear inference that the accident would not have happened if the defendant had not been negligent? We think they do. Defendant's escalator was maintained for the benefit of its customers and they were impliedly invited to use it. It is common knowledge that children, and especially young children, are attracted to an escalator, and that they oftentimes ride unaccompanied by their parents or custodian. It is also common knowledge that the ordinary escalator is completely safe even for small children, and that thousands of children ride them daily without injury or danger of injury. Yet, in this case it is established that plaintiff's hand was caught in the machinery of the escalator while he was riding where he was expected to ride. It seems to us this creates ...


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