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Pisano v. S. Klein on Square

Decided: February 27, 1963.

JOSEPH PISANO, JR., AN INFANT, BY HIS GUARDIAN AD LITEM, JOSEPH PISANO, SR., AND JOSEPH PISANO, SR. AND ANN PISANO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
S. KLEIN ON THE SQUARE, A CALIFORNIA CORPORATION, DEFENDANT-RESPONDENT



Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.

Price

[78 NJSuper Page 377] Pursuant to leave to appeal granted by this court (R.R. 2:2-3), plaintiffs seek the reversal of an order of the Superior Court, Law Division, setting aside jury

verdicts in favor of plaintiffs and granting "defendant's application for a new trial as to all issues." The verdicts, as returned by the jury, were in the sum of $30,000 in favor of Joseph Pisano, Jr., a minor, and in the amount of $3,000 for his parents, Joseph Pisano, Sr. and Ann Pisano, who sued per quod. The verdicts were based on injuries, suffered by the minor on March 25, 1959, while he was on an escalator descending from the second floor to the first floor in defendant's store. At the time of the accident the infant plaintiff, then five years of age, was accompanied by his father and by a younger brother Robert. It was conceded that they occupied the status of invitees.

Plaintiffs contended that as the father and the children were riding on the descending escalator, the father held each child by the hand, Robert occupying the escalator step in front of him and Joseph occupying the one immediately behind his father, the latter holding Joseph's right hand and Robert's left hand. Plaintiffs contended that the descending escalator, as it neared the first floor level, gave such "a violent jerk" as to cause Joseph's hand to slip from his father's grasp, the boy fell to the moving escalator steps, his left hand was "caught" in the space between the moving step and the stationary comb plate at the foot of the escalator and was severely mangled before the escalator could be stopped and his hand released. (The record does not disclose who turned the electric switch which caused the escalator to cease operation following the accident.)

The appeal focuses attention on the propriety of the trial court's aforesaid action, which defendant primarily seeks to sustain on the authority of Hartpence v. Grouleff , 15 N.J. 545 (1954). Plaintiffs in the instant case contend that the trial court's challenged order, setting aside both verdicts and directing that a new trial be had as to all issues (R.R. 4:61-1(a)), was so clearly without factual and legal support as to constitute an abuse of its "legal discretion" within the meaning of that phrase as stated in Kavanaugh v. Quigley , 63 N.J. Super. 153, 157-158 (App. Div. 1960). The basic

issue for resolution by us is whether the action of the trial court was such as to constitute "a denial of justice under the law" (Hartpence , 15 N.J. , at p. 548).

In resolving this appeal we have considered and shall later comment on the content and pertinence of the opinions rendered in Kulbacki v. Sobchinsky , 38 N.J. 435 (1962), decided since the argument of the appeal in the case at bar.

To properly assess the merits of this appeal it is necessary to detail the proofs which were presented by the respective parties, as defendant contends that justification for the court's action in setting aside the verdicts and granting a new trial as to all issues is not limited to the reason assigned by the trial judge, to which hereinafter we specifically allude. Defendant not only asserts that errors were committed by the trial court in its charge to the jury warranting the reversal of the verdicts but urges that the proofs afford no justification for a finding that defendant was guilty of negligence proximately causing the injuries suffered by the minor plaintiff.

We turn to the record.

Plaintiff Joseph Pisano, Sr. testified that during the aforesaid descent from the second to the first floor of defendant's store the escalator's movement was "rickety"; that it "made different types of noises going down, a shaky, rickety ride." He described the escalator as "old" and contrasted it with other escalators, which he and the children had used immediately prior thereto in descending from the fourth floor of defendant's store, and which, he said, operated "more evenly" and "smoother." Amplifying his description of the accident, the father characterized the "violent jerk" as a "forward-backward movement." He stated that it occurred as they approached the "base of the steps" and was so severe as to make "me lose the balance of Joseph's hand, knocked him loose from me, and Joseph fell to the floor." His left hand "got caught between the plate and the steps." The father added that the boy's hand was caught up to "the knuckles"; that he tried to "hold the rest" of the boy's "hand back," but "the steps kept coming at him."

Two women who were standing behind plaintiffs on the escalator witnessed the accident. One of them described the moving escalator as "rickety" and operating with "a juggling motion." She testified that just prior to the accident she observed Mr. Pisano and the two children standing on the escalator steps; that the father was holding each child by the hand; that she saw the boy Joseph "lose his balance" and fall; that he "put his hand down to get himself up" and "his hand just went into the bottom of the escalator." She stated that as "his hand was pulled in he was in a prone position." She testified that she was unable to state "at what moment [the boy] lost his balance," but that "he seemed to put his hand down quick, and in seconds his hand was in." A sister of the aforesaid witness, who was standing behind her on the descending escalator, testified that she, too, saw the child "lose his balance" and fall. She said that his hand "instantly was caught in the grooves." She stated that the escalator was "jerky" and that she "experienced a side to side motion, a jerking feeling."

Both of the aforesaid witnesses testified with reference to the extent of the space between the comb plate and the escalator step, the first stating that it was "possibly three-quarters of an inch wide." She described the space where the boy's hand had entered and was caught as "just about big enough for my hand to possibly go in, but a little boy's, it just ripped it right through." The second witness testified that at the place where the boy's hand "was caught in the grooves" there "were very wide spaces * * * which immediately caught" the boy's hand. His father, she said, tried to "extricate the hand, but it kept being caught because the escalator was in motion constantly."

Photographs of the escalator showing the physical location of the comb plate in its relationship to the escalator steps, were received in evidence.

A consulting engineer, Isaac Stewart (specializing in "accident and material failure evaluation" and who had made "a detailed study of escalator construction" and had examined

the escalator in question), testified as an expert witness on behalf of plaintiffs. Responding to a hypothetical question, which included a resume of the aforesaid testimony, Mr. Stewart testified on direct examination:

"It is my opinion that the escalator was not operating properly, to permit the jolt you mentioned, to permit the side sway and the rickety operation, and furthermore, to permit the hand to become lodged between the comb plate and the cleats of the steps.

Such conditions result from the flattening of the wheels that the steps ride upon; result from, in addition to that, the wearing of the rails -- both of which are the main controlling element for the position of the steps in relation to the comb plate. The fact that the escalator moved sideways, as you indicated, indicates to me that there was excessive play in the locating of the wheels upon which the steps rode * * *. The rickety, uneven operation results from worn wheels on the step and the track. * * * The jerk condition that you mentioned develops due to extensive usage without complete maintenance, and in some instances results from electrical problems." (Emphasis supplied.)

The witness gave the following further testimony:

"Q. In an escalator that is properly maintained and kept in good operating condition, do you have a situation where there would be enough space between the last step and the comb plate for a child's hand to be caught? * * * A. No, sir, there would not be enough space."

He answered affirmatively an inquiry as to whether, if the space at the place in question were such that the "infant's finger got caught, that alone would tell you that the escalator was not operating properly." On further interrogation he emphasized that if a "child's finger gets caught" in the indicated area, it means that the escalator is "not running properly, because of excessive clearance between the comb plate parts and the step tread"; that such a happening would indicate that the escalator was not running "with the proper clearance."

Mr. Stewart further testified that at the time of the happening of the accident in question the "standard for the space between the edge of the comb plate and the bottom or the rim

or valley on the step as it passes underneath the comb plate" was "one-eighth of an inch."

The medical proofs showed that the injuries suffered by the Pisano boy in the aforesaid accident consisted of a "traumatic amputation of the left first and second fingers and a severely compound, comminuted fracture of the middle phalanx of the third finger," resulting in "a deformity" of that digit.

On behalf of defendant one John M. Smith, an elevator and escalator inspector of the City of Newark, testified that, accompanied by a maintenance employee of defendant, he had made his annual inspection of the escalators in defendant's store the day before the aforesaid accident. He described the inspection as "routine." He said that the escalator was then "running all right"; that it was "running smoothly." He testified that during the course of the inspection he rode on the escalator and looked it over. He examined the "comb plate" at the floor level, during the course of which examination defendant's mechanic, the witness said, "was showing me the comb plate, where he had put some rubber plugs, and I was asking him what's the plugs for, and he told me, 'That's just an added protection we take.' * * * 'I make the rubber plugs for that.'" The witness added: "They're not necessarily part of the escalator."

Harry Gebhardt, an electrician employed by defendant and its predecessor-operator of the store for over 20 years, testified that his job was to do the electrical work and minor repairs on the elevators and escalators in the store; that he oiled and greased "every escalator every week," and rode on them every day to determine whether "there's any jerk or anything." He added: "If it doesn't ride smooth or there's a bump, you can hear a bump * * * whether there's something wrong, whether its running unusual." He testified that he rode the escalator in question on the morning of March 25, 1959 and that it seemed "all right" to him. He acknowledged that at the time of the accident the escalator in question was "twenty-two years old." He added that two of the ten escalators in the store were ten years old.

Timothy Hefferson, who was a maintenance employee of defendant and Gebhardt's assistant, checked the escalators on Mondays when Gebhardt had a day off and also, in connection with his general work, rode on the escalators on other days of the week. He testified that the escalator ran smoothly on March 23, the Monday preceding the date of the accident, and also that he did not notice any jolting, jerking or unevenness of operation before or after the accident.

James E. Whillis, a safety engineer, testified that because of the accident he inspected the exterior of the escalator "on behalf of the defendant" on March 26, the day following the accident. He said that he found "that it was operating in a normal and smooth manner." He made the inspection and the ensuing report of the results thereof jointly with another engineer (Mr. Langel) and because of its cumulative nature it was stipulated that Mr. Langel's testimony, if given, would be the same as that of Mr. Whillis.

William C. Holmes, who had been store manager of defendant for a few months preceding November 29, 1961, the commencement of the trial, and prior to that had been defendant's personnel director, testified that he rode the escalators several times each day and that between March 25, 1959 and April 13, 1959 (the date when an expert examined them on behalf of defendant) there were no "physical changes" made in the escalators. He specifically stated that on March 25 the escalator in question was "running smoothly."

Henry Clifford, a safety engineer, whose staff included the aforesaid witnesses Whillis and Langel, testified that he examined the escalator and measured various parts of it on April 13, 1959. He testified that he found that the escalator was "properly" maintained. He testified that violent jerking would immediately allow the tension frame or slack chain switch to operate and would stop the escalator. On cross-examination he conceded that if the action of the escalator was as described by plaintiff and his witnesses, the escalator "would be defective," and that his explanation of the aforesaid stoppage of the escalator in the event of "a violent jerk"

or "jump" was predicated on the assumption that the stoppage mechanism was in "good working order" on the day in question.

Under cross-examination Mr. Clifford testified that he was of the opinion that an escalator was "properly maintained" even though the space at the comb plate was such that a child's hand could "get caught" therein. He said "people shouldn't have their hand on an escalator tread." He ...


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