There may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the injury resulted from use of an instrumentality under the control of the defendant. Such an obligation may exist although the accident or original injury was caused by the negligence of the plaintiff or through that of a third person and without any fault on the part of the defendant.
Plaintiff visited defendant store and while descending on an escalator, he fell and his fingers were caught in the moving parts of the escalator. In Plaintiff's action for negligence, the circuit court overruled the store's motion for a judgment on the interrogatories and the answers thereto and overruled the store's motion for a new trial. On appeal, the court reversed the decision with instructions to sustain the store's motion for a new trial. The court held that the trial court erred in giving the jury an instruction regarding all of the injuries because the store could not be held liable for injuries that were not the proximate result of its negligence.
Should the plaintiff, who was an invitee and one who received his initial injury in using an instrumentality provided by the store be assisted by the latter?
In the case at bar, plaintiff was an invitee and he received his initial injury in using an instrumentality provided by the store and under its control. Under the rule stated above and on the authority of the cases cited, this was a sufficient relationship to impose a duty upon the store. Since the second injury arose after the initial injury occurred, the store cannot be charged with its anticipation or prevention but only with failure to exercise reasonable care to avoid aggravation. The measure of that duty is not unlike that imposed by the rule of the last clear chance or doctrine of discovered peril, though it should be observed that the last mentioned rule imposes a negative rather than an affirmative obligation and does not depend upon the relationship of the parties. To invoke the application of the last clear chance as it has been defined in this State, the defendant must have had knowledge of the plaintiff's situation of peril and of his helpless condition and, thereafter, have failed to exercise reasonable care to avoid harming him. The same rule must be applied in the case at bar. The charge of negligence already quoted invoked the application of this rule and, upon that theory, the facts found by the jury are not incompatible with the general verdict. There was, consequently, no error in overruling the store's motion for a judgment on the answers to the interrogatories.