Drazen v. Otis Elevator Co.

• Decision Date: 01 April 1963
• Docket Number: Nos. 10219,10220,s. 10219
• Citation: 189 A.2d 693,96 R.I. 114
• Parties: Milton DRAZEN v. OTIS ELEVATOR COMPANY. Judith DRAZEN, p.a. v. OTIS ELEVATOR COMPANY. Ex.
• Court: Rhode Island Supreme Court

Page 693

189 A.2d 693

96 R.I. 114

Milton DRAZEN v. OTIS ELEVATOR COMPANY.

Judith DRAZEN, p.a. v. OTIS ELEVATOR COMPANY.

Ex. Nos. 10219, 10220.

Supreme Court of Rhode Island.

April 1, 1963.

Louis J. Perez, Pawtucket, William J. George, Pompano Beach, Fla., for plaintiffs.

Sherwood & Clifford, Kirk Hanson, A. Lauriston Parks, Providence, for defendant.

FROST, Justice.

These companion cases of trespass on the case for negligence were brought by a father and his minor daughter to recover for injuries sustained by the daughter in an escalator accident, and for consequential damages to the father. They were tried before a justice of the superior court sitting with a jury.

Each case is here on the plaintiff's exception to the decision of the trial justice in granting the defendant's motion for a directed verdict. We will treat the evidence as though there were but one case, that of the minor, and our decision will apply to both cases.

The father's case was brought in his lifetime. He died before the trial was had. After his death his widow, Lena C. Drazen, was appointed administratrix of his estate and was permitted to be substituted as party plaintiff in the case brought by him.

On May 26, 1950 Mrs. Drazen and her daughter Judith, then three years old, were on the second floor of the Outlet Company's store in Providence. With them were Mrs. Spigel, Mrs. Drazen's sister-in-law, and her son Robert. Somewhat after four o'clock they decided to go home and took the escalator on the second floor to descend to the first floor. Mrs. Spigel and her son were ahead and Mrs. Drazen and Judith followed. Judith was to the right of her mother who was holding her left hand. Her right hand was on the rail as they were going down. The handrail was of black rubber and was constantly moving. Mrs. Drazen was carrying her purse and Judith's red sweater in her left hand. Mrs. Spigel and Robert stepped off as they reached the first floor. As they did Judith cried out, 'Mommy, my hand.' Mrs. Drazen saw that she had three fingers of her right hand in the lsot that the rail goes into and the suction pulled the sleeve of the sweater that Mrs. Drazen was carrying into the slot. Mrs. Drazen screamed and someone stopped the handrail and in about ten minutes Judith was able to remove her fingers after a maintenance man had unscrewed a plate. She was then taken to a first-aid room. There the nurse said she should be taken to the hospital and she was at once taken to Rhode Island Hospital where she was attended by Dr. G. Edward Crane. She was in the hospital a few days and then returned home.

Her injuries were to the middle, ring and little fingers of her right hand. The accident left the first joint of the ring finger stiff so that the finger is somewhat crooked.

Mrs. Drazen testified concerning her daughter's injuries that on or about January 21, 1953 her daughter and her husband had been compensated by the Outlet Company in the sum of $2,700 following claims made by them against that company arising out of this injury.

At the close of plaintiff's case defendant rested without submitting any evidence and moved for a directed verdict. The court directed a verdict for defendant on counts one and two of plaintiff's amended declaration, and after hearing arguments of counsel as to the third count directed a verdict for defendant on that count as well, but counsel has briefed and argued only the edception to the court's action as to the third count of the amended declaration.

The plaintiff's allegation of negligence is that 'the defendant negligently and carelessly manufactured, constructed and installed said escalator or moving stairway in that it manufactured, constructed and installed the part or parts of said escalator or moving stairway where the descending handrail enters the balustrade in such a manner that a dangerous and unsafe condition was created so that persons lawfully using said escalator or moving stairway were in great danger of catching their hands in the clearance space between said descending handrail and balustrade, and thus being injured thereby.'

The escalator in question with three others was sold to the Outlet Company under a contract dated April 29, 1941. It had a standard handrail, the width of which was three and one-quarter inches. As the handrail descended it passed into an opening in the newel stand which was protected by a ring of bristles leaving a space between bristles and edge of the handrail of about one-eighth of an inch. The bristles, black in color, were estimated to be one-half inch in length.

Frank W. Marcaccio, chief of the division of industrial inspection in the department of labor, testified that on May 26, 1950 he was chief elevator inspector; that it was his responsibility to inspect escalators; and that at the time of the installation in question in 1941 the design of the moving handrail and the aperture through which the handrail disappears into the balustrade was in accordance with the usual practice of escalator manufacturers at that time.

Thomas Imondi, a department manager at the Outlet Company, testified that he...