delivered the opinion of the court:
Thе plaintiff, Ida Tolman, brought suit in the circuit court of Cook County against the defendant, Wieboldt Stores, Inc., for injuries allegedly received when the heel of her shoe became caught in an escalator owned and operated by defendant. Plaintiff received judgment for $10,000 after a jury verdict, and defendant’s pоst-trial motions were denied. The appellate court, with one judge dissenting, reversed and entered judgment for defendant. (
The incident occurred on November 29, i960, in a Chicago Loop store owned and operated by defendant. The only occurrence witness was the plaintiff who testified that she got on thе escalator in the basement going to the first floor and held the hand rail on the right side. She testified that the treads on the escalator were wooden slats' spaced apart between three-quarters and one inch, and the space between the slats was one inch deep. About a quarter
It further appears from the evidence that no changes had been made in the width or height of the treads on this escalator since at least 1936. Defendant purchased the store from Mandel Brothers on August 18, i960. Photographs of the escalator in question were introduced in evidence without objection. Plaintiff also introduced, over objection, photographs of other escalators in defendant’s store and one in Goldblatt’s showing narrowly spaced metal slats. Also introduced, over objection, was a photograph of a new escalator with metal slats which was installed after the occurrence to replace the escalator on which plaintiff was injured. This picture also discloses a large painted sign on the adjacent wall, the visible part of which reads: “NEW ESCALATOR to the Subway Store, SWIFT • SMOOTH • SA_.”
Plaintiff also introduced into evidence, over objection, two interrogatories and answers propounded in pretrial discovery. They read as follows:
“Interrogatory No. 1: For a five year period prior to November 29, i960, and while your assignor, Mandel Bros, or you operated or had control of the escalator specified in the complaint, was anyone injured on said escаlator by catching any part of their shoe or tripping on the slats or surface of the treads of said escalator ?
“The answer is: This defendant has no actual knowledge of any such circumstances. However, based upon hearsay evidence (sic), the answer to interrogatory No. 1 as it pertains tо Mandel Brothers, Inc., the answer is yes. There is no record or information as to any suchoccurrences during the period of time this defendant was in possession and control of the involved premises and escalator thereon. No records are available prior to October 1, 1956.
“Interrogatory No. 2: If the answer to the foregoing is yes, state the name or names and address or addresses of the person or persons injured, the approximate date of injury, and the manner in which the injury occurred.
“Answer to Interrogatory No. 2: Based upon hearsay information, the defendant lists the following names, addresses and dates relating to incidents which occurred subsequent to October 1, 1956, and during the period of time that the involved premises and escalator thereon was in possession and control of Mandel Brothers, Inc.”
(The names and addresses of eleven women were listed.)
On appeal from the judgment of the trial court, defendant contended that there was no evidenсe, either that the escalator was unsafe or that defendant knew or should have known that the escalator was unsafe. In the alternative, it urged numerous errors as grounds for a new trial.
The appellate court reversed, holding that there was no evidence of either notice or negligence аnd that a verdict should have been directed for the defendant. Justice McCormick, dissenting, expressed the opinion that since plaintiff was a passenger on a common carrier, the mere happening of an injurious accident raises a prima facie presumption of negligence, requiring defеndant to rebut the presumption by showing extraordinary care.
Both parties have proceeded on the assumption that plaintiff was a passenger on a common carrier at the time of her injury. However, plaintiff reasons from this assumption that the accidental injury of such a passenger gives rise tо a presumption of negligence, sufficient to establish a prima facie case. This view finds support in cases dating back to Lord Mansfield’s decision in Christie v. Griggs, 2
In New York, Chicago and St. Louis Rаilroad Co. v. Blumenthal,
Although there is substantial authority for the proposition that an escalator is a common carrier, (see Anno.
We cannot agree that a rule applying to elevators must necessarily apply to escalators. In Heffernan, the court explained the rationale of the rule relating to elevators at
It is our opinion that the relationship of a passenger to the conveyance is far different in the case оf a train, bus or elevator than in the case of an escalator. The role of a passenger on a train, bus or elevator is a passive one, and ordinarily such a passenger cannot exercise any control over his own safety. However, a person on an escalator may aсtively participate in the transportation in a manner similar to the use of a stairway, and may contribute to his own safety. A passenger on an escalator, however, is unlike a person on a stairway in that he must deal with a moving mechanism over which he has no control.
It does not serve the logic of thе law to attribute to an escalator all the attributes of a common carrier and to ignore the facts and circumstances resulting in the injury to plaintiff.
It is our view that defendant owed plaintiff the same duty owed any other business invitee upon its premises. Defendant had the duty to use reasonable care and caution under all the circumstances to keep the premises reasonably safe for use by the plaintiff. (Geraghty v. Burr Oak Lanes, Inc.,
Plaintiff alleged specific negligence on the part of defendant in that it “suffered, permitted and allowed the said escalator to be old, outmodеd and unsafe in that the surface of the said escalator was equipped with wooden slats which were spaced far enough apart so that the heel of a woman’s shoe was likely to be caught between the said slats” and
We, therefore, conclude that the trial court was correct in denying defendant’s motion for directed verdict and for judgment notwithstanding the verdict and the judgment of the appellate court must be reversed. Defendаnt, however, alleges that other errors would compel the granting of a new trial and we must examine them.
Defendant first contends that prejudicial error occurred by the introduction into evidence of defendant’s answers to the interrogatories that we have previously set forth, and by the introduction into evidеnce of the photograph of a new escalator which replaced the one on which plaintiff was injured.
Answers to interrogatories, like discovery depositions, may be used only for impeachment, or as an admission of a party, or officer or agent of a party in the same manner and to the same extent as any other admission made by that person, or, if otherwise admissible, as an exception to the
It is true that evidence of other occurrences caused by the same agency is competent for some purpose. The question, however, is not whether such proof is competent, but whether the defendant’s answers were admissions that it had knowledge of a dangerous condition.
Defendant’s answers, filed more than a year after plaintiff’s injury, categorically denied any knowledge of prior accidents on the escalator. They did, howеver, reveal that at some undisclosed time the defendant’s investigation revealed “hearsay information” of other incidents while the escalator was under the control of the former owner. From the language of the answers, they are neither admissions of the fact of the prior “incidents,” nor of hearsay knowledge of other incidents prior to the injury. As we read the answers they do not tend to show that information of other incidents on the escalator had come to the attention of the defendant prior to this injury, nor that such prior injuries occurred, nor the cause of any which might have occurred.
Armed with the hеarsay information given by defendant, plaintiff had ample opportunity to investigate the alleged incidents, and to prove the occurrences, if any. This she did not do, but instead offered the hearsay evidence of defendant. It was error to admit this evidence.
We have also examined the photogrаph of a replacement escalator and a large sign next to its describing it as : “NEW ESCALATOR * * * SWIFT • SMOOTH • SA--” We consider that this photograph was introduced for the purpose of prejudice as indicated by the emphasis on the sign in plaintiff’s attorney’s argument to the jury. If the photograph was admissible for any purpose, the рortion showing the sign could and should have been deleted. We cannot say that the admission of the answers to the interrogatories and the photograph did not prejudice the defendant.
We, therefore, conclude that the trial court erred in not granting the defendant’s motion for a new trial and that the appellate court erred in entering judgment for the defendant. .The judgment is therefore reversed and the cause remanded to the trial court with instructions to grant defendant’s motion for a new trial.
Reversed and remanded, with directions.
