dissents:
The majority opinion concludes that plaintiff failed to prove causation thereby precluding the application of the doctrine of res ipsa loquitur. I cannot agree that plaintiff has failed to prove the matter of causation.
Mrs. Householder related in her testimony that she assisted plaintiff in embarking upon and disembarking from both escalators in the same manner, by placing one hand under plaintiff’s calves. Neither in assisting plaintiff in embarkation of either escalator nor in disembarkation of the first escalator did Mrs. Householder notice any injury to plaintiff’s leg. However, after disembarking the second escalator, Mrs. Householder immediately perceived plaintiff’s injury. Therefore, the evidence substantiates plaintiff’s claim of being injured during the second escalator ride.
The remaining issue then is whether the escalator itself or some other extrinsic force acted upon plaintiff to produce the injury. Mrs. Householder’s only observation as to plaintiff’s reactions during the second escalator ride was that plaintiff whimpered. However, Mrs. Householder did note that plaintiff’s whimper, the erratic escalator movement and the thumping noise occurred simultaneously. It was shortly after these simultaneous happenings that Mrs. Householder discovered the injury upon again touching plaintiff’s calf at the bottom of the escalator.
In view of these facts, I feel that the plaintiff has shown a causal relationship between the escalator’s movements and her inj ury.
The majority places emphasis upon the fact that Mrs. Householder testified that the “jerk” of the escalator was “ever so slight.” However, the operators of escalators must anticipate that their devices will be utilized by the infirmed, aged, handicapped and the very young, as well as the able bodied. The intensity of the “jerk” or abrupt movement of an escalator may be of little or no consequence or alarm to most riders, but in the case at bar a two and one-half year old child is the plaintiff.
The severity of the injury she sustained, requiring forty sutures, and the photograph of her injured leg reflect to a great measure what her mother described as a “little extra movement” and “jerk” that was “ever so slight.”
The majority also emphasizes the fact that Mrs. Householder did not testify that the escalator moved in a “bouncy fashion” as alleged in the complaint. However, I fail to appreciate the merit in distinguishing a “bounce” from a “jerk” in resolution of the issues presented on appeal.
We also note that the majority states that the photographic exhibits of the escalator show no defect. However, the majority held, and I believe properly so, that the plaintiff’s offer of proof as to Mr. Householder’s inspection of the escalator at a subsequent date was properly refused. The photographic exhibits of the escalator were allegedly taken on the same date as Mr. Householder’s subsequent inspéction. Therefore, since the offer of proof was inadmissible for remoteness so is the use of the photographs to depict a defect or lack thereof. The photographic exhibits as admitted could be used for purposes of identification only.
Therefore, I feel that plaintiff presented sufficient evidence to apply the doctrine of res ipsa loquitur and believe that the trial court erred in directing a verdict for defendant. The judgment should be reversed and remanded for new trial.