Jokelson v. Allied Stores Corp.

• Decision Date: 17 December 1968
• Citation: 295 N.Y.S.2d 730,31 A.D.2d 200
• Parties: Frank JOKELSON, an infant, by his guardian ad litem Samuel Jokelson and Samuel Jokelson, Plaintiffs-Respondents-Appellants, v. ALLIED STORES CORP., doing business as Stern Bros., Defendant-Appellant andOtis Elevator Co., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 730

295 N.Y.S.2d 730

31 A.D.2d 200

Frank JOKELSON, an infant, by his guardian ad litem Samuel Jokelson and Samuel Jokelson Plaintiffs-Respondents-Appellants, v. ALLIED STORES CORP., doing business as Stern Bros. Defendant-Appellant andOtis Elevator Co. Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 17, 1968.

Jacob D. Fuchsberg, New York City, of counsel (Irving Lemov, New York City, with him on the brief; Fuchsberg & Fuchsberg New York City,) for plaintiffs-respondents-appellants.

Denis M. Hurley, Brooklyn, of counsel (John F. Haggerty, Brooklyn, with him on the brief; Fogarty & Nielsen, New York City,) for defendant-appellant.

William F. McNulty, New York City, of counsel (Hampton & Dietel, New York City,) for defendant-respondent.

Before STEUER, J.P., and TILZER, McGIVERN, RABIN and McNALLY, JJ.

McNALLY, Justice:

This is an appeal by defendant-appellant, Allied Stores Corp., doing business as Stern Bros., from a judgment entered on a 10--to--2 jury verdict for an infant plaintiff in the sum of $237,500 and in favor of his father in the sum of $35,200.

Plaintiffs' amended complaint alleges the infant plaintiff was injured on December 27, 1961, when he was 'caused to be thrown and to fall' on an escalator in Stern's Department Store at 42nd Street in Manhattan. The claimed negligence of Stern consisted of allowing large and unruly crowds on the escalator without adequate supervision, in failing to provide guards and safeguards, and in maintaining the escalator in such a condition that the infant plaintiff's fingers could be engaged in the mechanism of the escalator.

Defendant-respondent Otis Elevator Co. was charged with the negligent manufacture, installation, inspection, testing, repairing and maintenance of the escalator and other negligence. At the close of the evidence, the court dismissed the complaint against Otis, and following the rendition of the verdict the court by stipulation determined the issues raised by the cross-complaint of Stern against Otis and dismissed the cross-complaint. We are in accord with this holding.

On December 27, 1961, the infant plaintiff, then almost 8 years of age, standing on appellant's down escalator proceeding from the second to the main floor, was caused to fall. His hands came in contact with the stair treads and combing on the main floor and his fingers became wedged between the treads and the combing, resulting in partial amputation of three fingers of his right hand and one finger of his left hand.

Two bases of liability were submitted to the jury--overcrowding and faulty maintenance. The record fails to establish overcrowding and it is wholly devoid of proof of crowding on the steps of the escalator. The infant plaintiff testified he felt a 'bump' and 'fell'; his friend testified a person 'came running past * * * knocked into Frankie and Frankie lost his balance.' Viewed in the most favorable light, the proof is the boy's fall was caused by the carelessness of a third person. (Ryan v. City of New York, 7 A.D.2d 298, 182 N.Y.S.2d 616, affd. 6 N.Y.2d 896, 190 N.Y.S.2d 705, 160 N.E.2d 924.) There was no proof of the presence of a crowd which was unruly or unmanageable, or that the infant plaintiff's freedom of movement was unduly restricted. When he was pushed by an unidentified person, the 3 or 5 steps ahead of him were free of people; his fall was free, unobstructed and unimpeded. The case should not have been put to the jury on this theory. (Williams v. New York Rapid Transit Corp., 272 N.Y. 366, 6 N.E.2d 58; McKinney v. New York Consolidated Railroad Co., 230 N.Y. 194, 129 N.E. 652; Cross v. Murray, 260 App.Div. 1030, 24 N.Y.S.2d 500.) Counsel for appellant moved for a dismissal of the complaint and for a directed verdict on each aspect of the alleged negligence in the case, both at the close of plaintiffs' case and at the close of the entire case. Lee v. Pennsylvania R. Co., 2 Cir., 192 F.2d 226, cited and quoted in the dissent, did not decide the issue of overcrowding since defendant failed to object tot he submission of that issue to the jury. The court there said (p. 229): 'Thus while this charge (overcrowding) may not have presented a jury issue, the problem is not before us.'

The primary question remaining is whether this escalator was a dangerous instrumentality. The test of this is whether a person of reasonable prudence would regard it as a potential source of accident or injury. The proof that from 3 1/2 to 4 million people traveled over the same escalator every year in safety would seem to indicate that reasonable prudence would not regard it as dangerous. In that period of time there was one accident, involving a 21-month-old infant on the 4th floor, with no proof that it was caused by any defect in the escalator.

There was prejudicial error in the admission of evidence on alleged faulty maintenance which requires reversal. The claim of faulty maintenance is grounded wholly on appellant's failure to exercise the standard of care measured by the alleged custom and usage relative to the installation of escalators with 1/4 tread separations. Appellant's escalator, installed in May 1937, had 1/2 tread separations. Sec. C26--1161.0, Administrative Code of the City of New York, effective in December 1951, requires each slot of the surface tread to be not more than 1/4 wide. However, the statute excludes its application to installations prior to January 1, 1938. Installations subsequent to December 1951 are responsive to sec. C26--1161.0. Plaintiffs' proof of custom and usage relating to numerous installations subsequent to December 1951 is irrelevant on the custom and usage as to installations before the enactment of sec. C26--1161.0, such as appellant's, since the more recent installations were mandated by the Administrative Code and the alleged custom and usage could play no part therein.

In addition, it was prejudicial error to admit, over appellant's objections based on irrelevancy and immateriality, the various advices received by appellant from Otis Elevator Co., its servicing agent, that 'the narrow gauge comb plates and step treads * * * be installed.' It is irrelevant, as stated in the dissent, that appellant acknowledged receipt of the notices in response to plaintiffs' notice to admit. 'Any admission(s) shall be subject to all pertinent objections to admissibility which may be interposed at the trial.' CPLR 3123(b). As heretofore indicated, appellant duly objected to their admission. The letters were admitted on the theory they gave notice of an alleged dangerous condition. This they did not do. The best that can be said for them is that they advise appellant that there was in the market an escalator with 1/4 treads. There is no requirement in the law that appellant use the latest or safest equipment. (Levine v. Russell Blaine Co., 273 N.Y. 386, 389, 7 N.E.2d 673, 674; Bennett v. Long Island R.R., 163 N.Y. 1, 57 N.E. 79; Harley v. Buffalo Car Mfg. Co., 142 N.Y. 31, 36 N.E. 813.) The notices do not purport to apprise of any dangerous condition or custom or usage relative thereto. After several hours' deliveration, the jury requested the Otis advices. It would appear that the verdict reflects substantial reliance thereon. The record shows the letters were admitted by the court over objection to 'be given that probative value which the jury decides it is entitled to.' Plaintiffs' counsel argued in summation that the letters conveyed notice of an unsafe condition and that defendants failed to explain their failure to comply with the suggestions contained in said advices. This compounded the error, since the letters did not show a dangerous condition and there was not obligation on the part of appellant to accept the suggestions.

It was also an improvident exercise of discretion to admit the testimony of Dr. Dickar, whose report had not been previously served on appellant, contrary to the provisions of subd. 8, Rule XI of the Supreme Court, Bronx and New York Counties (22 NYCRR 600.11(h).) The record establishes plaintiffs adduced extensive medical evidence by the treating doctor and no special circumstances support a departure from the rule.

We are also of the opinion that the verdict is against the weight ofthe evidence on negligence and proximate cause, and grossly excessive.

Accordingly, the judgment should be modified on the law and facts to the extent of vacating the award and directing a new trial limited on the issue of liability to the alleged negligent maintenance of the escalator and damages, if any, and as so modified, affirmed, with costs to abide the event.

Judgment modified, on the law and the facts, to the extent of vacating the award, severing the action, and directing a new trial limited on the issue of liability to the alleged negligent maintenance of the escalator and damages, if any, and as so modified, affirmed, with costs to abide the event.

All concur except McGIVERN, J., who dissents in a dissenting opinion.

McGIVERN, Justice, (dissenting):

If the majority is correct in its analysis, there should be no new trial. The entire complaint should be dismissed. In effect that is the result achieved by the majority's disposition, either substantively or by procedural impediment, notwithstanding a jury verdict in the plaintiff's favor.

But, in my view, the majority has not properly conceived one of the basic premises of the plaintiff's case, i.e., overcrowding. I feel the plaintiff made out a case of negligence prima facie on this score and the Trial Judge did not err in submitting the case to the jury. In addition to the descriptions of crowding from the witnesses, we may note December 27, 1961 was no ordinary day at Stern's. It was but two days after Christmas. It was a post-Christmas gift exchange day. Children were on vacation. And Stern's had by advertisement invited all to a marionette show. Children, with all their unpredictable vagaries of behaviour,...