Jоsie B. Keeter, one of the appellees in this case, sued appellant, Washington Sheraton Corporation, fоr damages for personal injuries suffered in a fall on an escalator in appellant’s hotel. The corporatiоn denied any negligence on its part and filed a third party complaint against The Peelle Company, co-appеllee, which had installed the escalator and which had an oral service agreement with the hotel at the time of the аccident. 1 A jury trial resulted in a verdict against appellant. The trial judge thereafter dismissed the third party complaint. This appeal ensued.
Appellant charges error (1) in allowing the jury to use the doctrine of res ipsa loquitur to determine whether appellаnt was negligent, (2) in not granting a directed verdict in its favor, and (3) in dismissing appellant’s third party complaint against Peelle seeking indemnifiсation or contribution.
At trial Keeter testified that she was walking down the steps of the escalator at a time when it was turned off. As she neared the bottom, the escalator suddenly lurched forward, throwing her down several steps and causing various persоnal injuries. Her testimony was corroborated by that of a woman companion who was on the escalator at the timе of the accident and who also felt the lurch. Keeter produced evidence to establish that appellant wаs charged with maintenance and control of the escalator and had free access to both the machinery аnd the operating controls at all times.
Appellant denied any negligence of its own, charged Keeter with contributory negligence, and cross-claimed against Peelle, alleging that Peelle, and not appellant, was charged with maintenаnce and control of the escalator. Both appellant and Peelle produced witnesses who testified that whilе the escalator was turned off it could not have moved as Keeter described.
The trial judge submitted the factual issues of negligence and contribu
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tory negligence to the jury and allowed it to use the doctrine of
res ipsa loquitur
in determining whether appellant was negligent. The doctrine of
res ipsa loquitur
should be applied with caution in a negligence action so that the mere happening оf an accident will not permit the inference of a defendant’s liability. But in proper circumstances and with proper instructions
res ipsa loquitur
may be useful in helping plaintiff to establish a prima facie case which defendant must thereafter contest. Sweenеy v. Erving,
In the present case the trial judge instructed the jury that if it found the aсcident was caused by an instrumentality in the exclusive control of appellant, or in the joint control of appellаnt and Peelle, and the accident was of “such character as in the light of ordinary experience is unlikely to occur, except as a result of negligence,” it could treat these findings as evidence of negligence although it was not requirеd to do so.
“It is not necessary for the applicability of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage.” * * * The doctrine may apply against two defendants if there is joint control * * *. Greеt v. Otis Elevator Co., D.C.App.,187 A.2d 896 , 898 (1963).
The failure to join Peelle as a defendant did not relieve appellant of liability if the jury found both Peelle and appellant to have been negligent. Miller v. Union Pacific R. R. Co.,
The third party complaint alleged Peelle’s negligence in the installation and maintenance of the escalator as a basis for its claim for indemnification or contribution in the event damages were assessed against appellant. At trial, however, appellant producеd no direct evidence of specific acts of negligence, relying solely on
res ipsa loquitur.
While the control requirement has beеn weakened to the point where
res ipsa loquitur
may be invoked in a case where the instrumentality causing injury is controlled either by two defendants jointly or by a single defendant and a third party, the requirement has not been entirely eliminated. A party who is himself in control of the instrumentality may not rely on
res ipsa loquitur
against a party who shares that control. One of the basic reasons for allowing an injured party tо use the doctrine is that the defendant in control has greater access to the instrumentality causing the accident and is therefore in a better position to enlighten the trier of fact on the state of events surrounding the accident. Powers v. Coаtes, D.C.App.,
In the instant case, in order for the jury to have found appellant negli *623 gent, it hаd to find that appellant at least shared control of the escalator with Peelle. Once it was established that aрpellant had control, separately or jointly, appellant could not depend on res ipsa loquitur. Since appellant produced no competent evidence of Peelle’s specific negligence in proximately causing the accident, the trial judge properly dismissed the third party complaint.
In considering the other alleged errors in the instructions to the jury, wе have examined the charge as a whole and find no prejudicial error.
Affirmed.
Notes
. Keeter did not amend her complaint to make Peelle a co-defendant, although she was authorized to do so at pre-trial.