Feblot v. New York Times Co.
| Decision Date | 08 June 1973 |
| Parties | , 299 N.E.2d 672, 63 A.L.R.3d 881 Eve M. FEBLOT, Respondent, v. NEW YORK TIMES COMPANY, Appellant, and Westinghouse Electric Corp., Defendant. |
| Court | New York Court of Appeals Court of Appeals |
William F. McNulty, Daniel J. Coughlin and Anthony J. McNulty, New York City, for appellant.
Robert Long and Jack J. Albert, New York City, for respondent.
This is an action to recover damages for personal injuries allegedly sustained by the plaintiff, Eve Marie Feblot, while she was entering an elevator in the New York Times Building at No. 229 West 43rd Street, in the Borough of Manhattan, City of New York. The building was owned by the defendant, The New York Times Company, hereinafter designated 'Times.' The elevators in the building were serviced by the defendant, Westinghouse Electric Corp., hereinafter designated 'Westinghouse.'
Miss Feblot, a professional masseuse then 63 years of age, had previously gone to the private office of Arthur Hays Sulzberger, the president and publisher of the New York Times, on the 14th floor of the building, to give Mr. Sulzberger a massage treatment. The accident occurred while she was entering one of the self-service elevators on the 14th floor of the building in order to leave the building. Miss Feblot claimed that, while she was entering the elevator, the door in the elevator cab, which was equipped with a rubber safety edge, suddenly closed and struck her right shoulder and arm with such force that it is claimed it injured her shoulder.
At the close of the plaintiff's case the complaint was dismissed against Westinghouse on the ground that the plaintiff failed to establish a prima facie case against said elevator service company and the court denied the motion of Times to dismiss and for a directed verdict, after initially reserving decision on said motions. At the close of all the evidence the court reserved decision on the renewed motions of Times to dismiss and for a directed verdict under CPLR 4401. The case was thereafter submitted to the jury against Times solely on the theory of Res ipsa loquitur and the jury rendered a verdict in favor of the plaintiff. The court denied the motion of Times to set aside the verdict and, in addition thereto, denied the motions of said defendant for a dismissal and for a directed verdict, on which decision had previously been reserved.
The appeal presents two questions: (1) Was the doctrine of Res ipsa loquitur applicable under the facts here presented? and (2) Did the Trial Justice err in excluding from evidence the written accident report of Zaccor, and in refusing to allow Zaccor to give the complete account of the accident, as reported to him by the receptionist, Griffin, after the door therefor had been opened on the plaintiff's cross-examination of Zaccor?
The answer to question 1 is: No. The answer to question 2 is: Yes.
The treatment took about an hour and when Miss Feblot left Mr. Sulzberger's office, Griffin, the receptionist, accompanied her out to the corridor where the elevators were located and, according to Miss Feblot, then left her standing there 'alone' in the corridor. She testified that she rang the bell for an elevator located on her righthand side of the corridor and then stood 'very near' the door of the elevator, waiting for the elevator to arrive at the 14th floor.
On direct examination Miss Feblot described the accident, which occurred after the elevator arrived at the 14th floor and the door opened, as follows:
She testified that, after she 'cried out', Griffin, the receptionist from Mr. Sulzberger's office, 'came quickly back' to where she was standing and that she had a conversation with him. She testified that, after she got home, she felt 'very sick and very miserable' and placed 'ice packs with witch hazel' on her right 'arm.' Although Dr. Robert L. Preston, the only medical witness called by the plaintiff, who first saw Miss Feblot nearly a year after the accident, claimed on direct examination that the middle third of the deltoid muscle in her right shoulder was 'ruptured away from its bony attachment at the shoulder', on cross-examination he admitted that the deltoid muscle 'may be ruptured or it may not be ruptured'--he 'didn't know.' He also admitted that the atrophy in the muscle of Miss Feblot's right shoulder was undoubtedly due to the bursitis in the right shoulder from which she admittedly had been suffering and for which she admittedly had been receiving cortisone injections for years.
On cross-examination by Times, Miss Feblot testified that the only thing that she was carrying at the time of the accident was a hand bag, which she held in her right hand. She couldn't remember whether or not she was wearing her glasses at the time of the accident and, although she admitted that Griffin escorted her out to the corridor when she left Mr. Sulzberger's office, she couldn't remember the distance between the point where she claimed that Griffin left her in the corridor and the point in the corridor where she claimed that she was standing while she was waiting for the elevator--which had a material bearing on the question of whether or not Griffin saw the accident. When the elevator arrived she was standing in the middle of the elevator doors facing them. She claimed that the elevator door opened only 'halfway', but she couldn't say how many seconds it took for it to open. When she was asked how far away from the elevator door she was standing when it opened 'halfway', she testified, 'I was very near' the door. She could not, however, recall exactly how near to the elevator door she was at this time but, upon further questioning, she indicated that she was approximately eight inches away from the door. She claimed that she then stepped into the elevator with her right foot, which she placed down inside the elevator cab, with her right shoulder approximately 18 inches away from the elevator door and, although she at first testified that her left foot was 'positively' not in the corridor at the time, she later claimed that her left foot was flat on the floor of the corridor outside the elevator while her right foot was inside the elevator. She claimed that she was in this position when the elevator door closed 'instantly' on her, but she couldn't remember how long it took the elevator door to close after it had opened, and that the door struck her 'terrifically in my arm'. When she was asked if the door closed faster than it opened, she testified, 'It closed much faster.' She didn't know whether or not the elevator door had a rubber safety edge on it, nor could she recall whether or not the door opened again after it came into contact with her body. She did, however, admit that the contact was not sufficiently violent to knock her down.
The elevator in question was not a single-door elevator, as Miss Feblot claimed at the trial, but was equipped with a pair of 'side opening' doors, one of which slid behind the other, and both of which opened and closed from one side of the elevator, as distinguished from 'center opening' doors, where each of the doors opens in opposite directions.
On cross-examination by Westinghouse, Miss Feblot testified that, when the elevator door closed on her right shoulder, she stopped out of the elevator 'very, very quickly', which suggests that the door opened again when the rubber safety edge came into contact with her body. Despite her earlier attempts to deny it, she admitted that she had previously made a claim against Travelers Insurance Company for an injury she claimed that she sustained when she caught her finger in the gate of an elevator in the town house of Mr. and Mrs. Widener on East 70th Street.
On redirect examination Miss Feblot admitted that, immediately after the accident, she reported the occurrence to Griffin and that she later reported it to Mr. Sulzberger himself.
As part of her affirmative case the plaintiff read from the deposition taken on an examination before trial of Donald DeForest, who had been an elevator inspector for Westinghouse stationed at the Times Building for three years at the time the accident occurred. DeForest testified that, on June 29, 1964, there were eight passenger elevators servicing the 14th floor of the Times Building, four of them being located on each side of the corridor on that floor. The No. 8 elevator, which is the one involved in the case at bar, was the first elevator on the right side of the corridor. DeForest testified that in 1963 this elevator had been converted from a manually operated to an automatic 'Selectromatic', self-service operated elevator. The elevator was equipped with 'side opening' doors, which, as already noted, means that both doors, one of which slides behind the other, opened and closed from one side of the elevator.
DeForest further testified that on June 16, 1964, less than two weeks before the accident herein occurred, he inspected the No. 8 elevator because 'There was a complaint that the doors were delaying' in closing and that he found that the cause of this delay was 'a dirty contact for the light source for the electric eye' on the door. As he explained, 'I found a contact in the light source wasn't making, and that meant that the electric eye circuit wasn't completed in the door, and the door would just delay in closing for the time, and then it would nudge after twenty-six or twenty something seconds.' This electric eye is located 'in the buck' or the 'striking jamb' of the door and it regulates the time interval that the door remains open, depending upon whether or not passengers are entering the elevator. If no passenger is entering or leaving the elevator after it stops at a landing, it takes 'seven...
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