Schwerin v. H. C. Capwell Co.

NOURSE, P. J. The defendant owns and operates a large department store having six floors arid a basement. To enable its customers to go from one floor to another the defendant maintains elevators, escalators and ordinary stairways. While a customer in the store, Mrs. Schwerin chose an escalator to go from the first floor to the basement to make a purchase. When about halfway down she was struck by two small boys who were attempting to ascend against the downward movement of the escalator. In their suit for damages Mrs. Schwerin and her husband, pleaded negligence specially, basing their case on the allegations that the children were permitted to play on the escalator “with the knowledge and consent” of the defendant and that the latter “failed and neglected to control the conduct of said children”. At the close of plaintiffs’ case the trial court granted the defendant a nonsuit.

On this appeal it is conceded that the mechanical condition of the escalator was perfect and that it was operated in the usual and customary way with the usual guard-rails and similar protective devices. The appellants found their appeal on the ground that the jury should have been permitted to determine whether the respondent should have maintained personal guards at the top and bottom of the escalator to prevent a stranger from causing any injury to a customer using the escalator. The question reduced to its simplest form is whether, assuming that, in the operation of the escalator, the respondent was charged with the highest degree of care as of a common carrier, was the respondent obliged to provide against unknown casualties caused by strangers which could not reasonably have been anticipated? The question is answered in the negative in Cary v. Los Angelos Ry. Co., 157 Cal. 599, 603 [108 Pac. 682, 21 Ann. Cas. 1329, 27 L. R. A. (N. S.) 764], where the Supreme Court, quoting from Holt v. Southwest Mo. E. R. Co., 84 Mo. App. 443, says: “ ‘ . a carrier of passengers is not obliged to forsee and provide against casualties which have not been known to occur before, and [3]which may not reasonably be expected. . . . “That which never happened before, and which in its character is such as not to naturally occur to prudent men to guard against its happening at all, cannot when in the course of years it does happen, furnish good ground for charge of negligence in not foreseeing its possible happening and guarding against that remote contingency.” ’ ”

To the same effect see: Morris v. Southern Pac. Co., 168 Cal. 485, 490 [143 Pac. 708]; O’Neil v. Lynn & B. R. Co., 180 Mass. 576 [62 N. E. 983]; Fanshaw v. Norfolk & P. T Co., 308 Va. 300 [61 S. E. 790]; Graeff v. Philadelphia R. R. Co., 16.1 Pa. 230 [28 Atl. 1107, 41 Am. St. Rep. 885, 23 L. R. A. 606]; 10 C. J. 902, 903. In Tall v. Baltimore Steam Packet Co., 90 Md. 248 [44 Atl. 1007, 47 L. R. A. 120], and Takacs v. Detroit United Ry., 234 Mich. 42 [207 N. W. 907], the rule is stated that the liability of a carrier to a passenger for the acts of strangers or fellow-passengers is relative, qualified and contingent upon whether the carrier, or its agents, has, or from known conditions should have, knowdedge of conditions from which mischief is to be reasonably apprehended, and has neglected to prevent the injury.