1. It is the duty of a storekeeper owning and operating an escalator, or moving stairway, to exercise the highest degree of care in its management and operation.
2. In an action for damages brought by a customer against such storekeeper for damages alleged to have been sustained by reason of the defective condition of such escalator, it is reversible error for a trial court to charge that such storekeeper is required to exercise only ordinary care in its operation.
Messrs. Burgert & Stearns and Messrs. Dunlap, Stephens & Stephens, for plaintiff in error.
Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, for defendant in error.
JUDGES: MONTGOMERY, J. SHERICK, P. J., and LEMERT, J., concur. Judges of the Fifth Appellate District sitting by designation in the Eighth Appellate District.
This is an error proceeding to reverse the judgment of the court of common pleas of Cuyahoga county. The parties in this court stand in the same order as they did in the common pleas court.
The plaintiff, Marion McBride, in her amended petition averred that the defendant is an Ohio corporation engaged in the mercantile business, conducting a large store in the city of Cleveland, which it invited the public generally to enter for the purpose of buying merchandise; that among other things the said store is equipped with escalators, or moving stairways, which convey customers from one floor to another, and particularly from the main floor to the basement; that at the time of the grievance complained of the escalator was so constructed and operated that it was dangerous for persons unaccustomed to using it, in that the moving part of said escalator, upon which customers are invited to stand, consisted of slats or cleats so arranged that narrow slots exist between these slats just wide enough to allow the heel of a lady's shoe to become wedged therein, so that when descending, and the bottom is reached, and the customer attempts to step off, she finds it difficult, if not impossible, to do so, if her heel has become so wedged; further, that said slats or cleats had become defective by reason of long use, so that they were dangerous, all of which dangers and defects the defendant, in the exercise of ordinary care, should have known.
The petition further averred that on June 14, 1928, at the invitation of the defendant, as set forth, plaintiff visited the store for the purpose of making purchases, and took a position upon said escalator to go to the basement of said store; that the heel of her left shoe became wedged in one of said slots, so that when she reached the basement and attempted to step off the said escalator, she was unable to do so and was thrown to the floor, thereby sustaining serious injuries which are described and set forth in detail in the petition.
An answer was filed which simply admitted that the defendant is a corporation and denied all the other allegations of the petition. Trial was had to a jury which brought in a verdict for the defendant.
The bill of exceptions filed is in narrative form, and simply recites that plaintiff offered evidence tending to prove the allegations of her amended petition and rested; that the defendant offered evidence tending to prove that the plaintiff was not injured as claimed; that said escalator was not dangerous and had no defects; and that the plaintiff coming down said escalator stood sidewise. The plaintiff in rebuttal offered evidence tending to prove that she was not riding sidewise, but in the ordinary and customary way.
In the bill of exceptions the charge of the court to the jury is set forth in full, and the only error in the charge complained of in this court is error in the court's charge as to the degree of care incumbent upon the defendant.
It is unnecessary for us to quote the charge of the court in this respect, but the record shows, and it is conceded by counsel on both sides, that the trial court charged that the defendant was required to exercise ordinary care only.
Plaintiff in error contends that the court should have charged that the degree of care required is the same as is required of the common carrier of passengers; namely, the highest degree of care.
It is apparent, therefore, that the only question before this court is the degree of care incumbent upon defendant and what the charge of the trial court should have been in this respect.
We hold that the bill of exceptions is sufficient to show the issues presented and sufficient to indicate what should be the correct charge in this respect.
Attention is directed to the case of McDowell v. Rockey, 32 Ohio App., 26, 167 N. E., 589, decided by this court sitting in Coshocton county. In passing upon that case, consideration was given to the authorities cited by counsel in the case at bar, and suffice it to say that this court, as now constituted, adheres to the ruling of the court in the Coshocton county case. The sixth and seventh paragraphs of the syllabus of that case are as follows:
"6. An innkeeper is not an insurer of guest's safety, but is chargeable with highest degree of care towards guest invited to use passenger elevator of hotel.
"7. The operator of a passenger elevator in a hotel is not a common carrier of passengers, although degree of care required is similar to that of carrier towards passengers."
And on page 33 (167 N. E., 589, 591), in the opinion, the court said:
"In arriving at the law applicable to the present facts we recognize that an innkeeper is not an insurer of his guest's safety, but that he is chargeable with the highest degree of care towards his guest when he invites him to use the passenger elevator in his hotel, for which privilege the innkeeper is compensated by his guest. We do not agree with some authorities that the owner and operator of an elevator is a common carrier of passengers, for such is not true, but we do hold that the degree of care required of an innkeeper towards his guest, with reference to his passenger elevator, is similar to that of a common carrier towards its passenger."
We further hold that there is no difference in principle between the ownership and operation of an elevator and an escalator. They are installed for the same purpose; the only difference being that one runs in a perpendicular fashion and the other at an angle of approximately forty-five degrees. Both are constructed for the benefit of customers of the owners. Both are intended as inducements to prospective customers to visit the establishment of the owner. Undoubtedly the owner profits from the installation and operation of each. An innkeeper profits because of the supposed increased patronage of his inn due to the installation of such a conveyance as an elevator. A storekeeper profits due to the supposed increased patronage of his store by the installation of an escalator, which is simply a moving stairway. Both are taken into account by the proprietor and by the customers as a part of the commodity bought or sold; in the one case, personal service, in the other, merchandise.
We hold, therefore, that it is the duty of the storekeeper owning and operating such an escalator to exercise the highest degree of care in its management and operation, and that the common pleas court in charging the jury that only ordinary care was required committed reversible error.
For this reason the judgment of the common pleas court will be reversed and this cause will be remanded for further proceedings.
Judgment reversed and cause remanded.