(dissenting):
I respectfully dissent. As I perceive the holding of the majority, it is that the doctrine of res ipsa loquitur should have carried plaintiff-appellant to the jury. I cannot agree. The case of Alabama Power Co. v. Berry, 254 Ala. 228, 48 So.2d 231 (1950), cited by the majority on the Alabama res ipsa loquitur standard is inapposite. One of the essential elements is that “the injury is such as, in the ordinary course of things, does not occur if the one having such control- uses proper care.” Alabama Power, supra, 48 So.2d at 238. See also Prosser, Torts, 218. This element was present in Alabama Power, a case involving a fallen electrical power line on the premises of the plaintiff. In my view that element is not present here.
The classic case is, of course, Byrne v. Boadle, 1863, 2 H. & C. 722, 159 Eng. Rep. 299, in which a barrel of flour rolled out of a warehouse window and fell upon a passing pedestrian below. As applied to the facts here, the doctrine means that the fact of the plaintiff’s fall speaks for itself and that the injury would not have occurred absent a lack of proper care on the part of defendant storekeeper in its maintenance of the escalator. This is simply contrary to experience. People do fall or slip on escalators without any negligence on the part of the storekeeper. Especially is this true, as here, where the plaintiff is quite elderly.
There are apparently no Alabama decisions involving escalators and res ipsa loquitur. There are cases, somewhat analogous, involving plaintiffs who have slipped on stairs, situations which have been held by two states not to invoke res ipsa loquitur. Hutsell v. Edens, 1961, 172 Neb. 592, 111 N.W.2d 388 and Finch v. Willmott, 1930, 107 Cal.App. 662, 290 P. 660.
I would affirm.