Heffernan v. Mandel Bros., Inc.

• Decision Date: 17 November 1938
• Docket Number: Gen. No. 39945.
• Citation: 297 Ill.App. 272,17 N.E.2d 523
• Parties: HEFFERNAN v. MANDEL BROS., INC.
• Court: United States Appellate Court of Illinois

297 Ill.App. 272

17 N.E.2d 523

HEFFERNAN

v.MANDEL BROS., INC.

Gen. No. 39945.

Appellate Court of Illinois, First District, Second Division.

Nov. 17, 1938.

Appeal from Municipal Court of Chicago; N. J. Bonelli, Judge.

Action by Bridget Heffernan against Mandel Brothers, Inc., for injuries sustained while riding on an escalator in defendant's department store. From a judgment for plaintiff, defendant appeals.

Reversed and remanded. Altheimer, Mayer, Woods & Smith, A. B. Manion, and Lewis L. Levin, all of Chicago, for appellant.

James F. Lyons and Elwyn E. Long, both of Chicago, for appellee.

JOHN J. SULLIVAN, Justice.

This appeal seeks to reverse a judgment for $350 rendered against defendant, Mandel Brothers, in an action brought by plaintiff, Bridget Heffernan, for damages for personal injuries claimed to have been received while she was a passenger on an escalator in defendant's store.

After alleging that she became a passenger on the escalator for the purpose of being carried from one floor to another, plaintiff's complaint averred:

“That while plaintiff was such passenger as aforesaid and while she was at all times in the exercise of due care for her own safety, the defendant by its servants and agents, so negligently and carelessly managed and operated its said escalator, upon which the plaintiff was a passenger, that said escalator became out of order and vibrated violently. * * *

“That the said escalator used by the Defendant Company for the carrying of customers from one department of the store to another upon another floor was improperly constructed and improperly installed, all of which was unknown to the plaintiff, and while plaintiff was a passenger upon said escalator then and there in said store for trade, the said escalator had some defect in its construction and installation and in consequence of and by reason of said defect, that the plaintiff while then and there in the exercise of due care and caution for her safety, while a passenger upon said escalator and as a customer in said store, was thrown violently and forcibly upon her back and was bruised and injured * * *.”

No evidence was presented on the trial of this cause in support of the allegation in the paragraph of the complaint last above quoted, that “the said escalator had some defect in its construction and installation and in consequence of and by reason of said defect * * * plaintiff * * * was thrown violently and forcibly on her back.”

Plaintiff testified that on April 8, 1936, she went into Mandel Brothers' department store, at Madison and State streets, Chicago; that she walked down the stairs to the first subway to make a purchase; that “I wanted to get up on the main floor and I stepped onto the escalator;” that “I stood on the escalator as I usually did;” that “I was up about the third step, I should judge, and it started to vibrate, and it pushed me from one side to the other, and then it gave some kind of a jerk and threw me off my feet and * * * I fell backwards * * * an employee of the store * * * was on the escalator at the time I was on there * * * he ran * * * I screamed when I fell, I hollered and he grabbed me * * this young man held onto me * * * he tried to get me on my feet, which was a hard thing to do under the conditions;” that “I must have been half way up the steps” before the escalator stopped; and that she had frequently ridden on escalators before and was familiar with their operation.

Harry Wolf, Jr., who was in the employ of defendant at the time of plaintiff's injury but who was not at the time of the trial, testified that he was on the escalator at the time the accident occurred; that there was another man on the escalator between him and plaintiff; that he did not see her fall or know what caused her to fall, but that there was no unusual motion of the escalator at the time she fell; and that the escalator was operating smoothly and “to the best of my knowledge it operated O.K.”

Felix Bozwick testified that he was employed by Mandel Brothers as a stock man; that “at the time I was taking the escalator from the first subway to the first floor, and I just got in on the first step of the escalator, I saw a lady on the front of me * * * she was starting to walk from one step to another one, but she didn't step right on the steps, she stepped * * * on the edge * * * of the steps, and fell on her back;” that he was about six or eight steps behind her and that “she was moving;” that “I jumped right away to that lady and helped pick her up * * * and another man came and helped me to get up with the lady and somebody stopped that escalator;” that “the escalator had risen six or eight steps * * * right on the center between them floors” before plaintiff fell; that he did not notice “any jerking or wobbling of the escalator” from the time it ascended above the subway floor level until the accident to plaintiff happened; and that the escalator did not “wobble at any time from side to side” and it did not “jerk back and forth at any time.”

Henry George Cleves, chief engineer for Mandel Brothers, testified that, immediately after the accident and before the escalator in question was again placed in operation, he and two assistants examined and tested same and found it to be in good operating condition and that when they started it a short time thereafter, it ran smoothly and in the customary manner. He further testified as to the construction and operation of the escalator that “the steps of the escalator travel, they average about ninety feet per minute;” that “there are two sets of rails” that hold the steps up; that “there is a rail that the step itself rides on * * and then there is another set of rails that carry the step frames * * * then each step has on this rail four flange wheels, wheels that are similar to a railroad wheel, only smaller of course * * that flange is what keeps the escalator on the rail, and keeps it traveling true * * * clearances on the escalator have to be held down fairly close because of the railings on the sides, otherwise it would skip if it were not held in pretty fine alignment;” that the steps of the escalator, when it is in operation, “could move sideways very, very little;” that “when the escalator is in operation, and in motion, it is physically impossible for the steps of same to jerk back and forth;” that “there naturally has to be enough clearance so that the wheels, the flange of those wheels do not bind the rails in any way * * * the result is that it must have * * * around one-thirty second of an inch clearance * * * that is the extent of the movement that it can have from one side to the other;” and that it is impossible “for the rate of speed of the escalator to decrease or increase to any extent at all while it is in motion.”

Albert J. Wells, a mechanical engineer employed by the Otis Elevator Company, which installed the escalator in question, testified substantially to the same effect as the witness Cleve as to the construction and operation of the escalator and that it was impossible for such escalator or any of its steps, when it was in operation, “to wobble from side to side” or to “jerk back and forth.”

Defendant contends that the relationship of the parties was that of invitorinvitee and that under such relationship liability could only be imposed upon it for its failure to keep its premises in a reasonably safe condition. On the other hand plaintiff insists that it was defendant's duty to exercise the highest practical degree of care for the safety of passengers on its escalator. Plaintiff also insists that the owner and operator of an escalator...