Collester, Mintz and Lynch. Mintz, J.A.D.
[120 NJSuper Page 108] Plaintiff's decedent, Gladys Kocher (decedent) sought recovery for personal injuries resulting from a fall which occurred upon her entering an elevator. The jury returned a verdict of no cause for action, and judgment was entered in favor of defendant. Plaintiff's motion for judgment of liability notwithstanding the verdict or, in the alternative, for a new trial on the ground that the
verdict was against the weight of the evidence, was denied. This appeal ensued. Prior to trial decedent died from causes unrelated to the accident. An order was entered substituting her executrix as plaintiff.
Decedent was injured on April 29, 1966 as a result of a fall upon entering an elevator in the School of Nursing connected with Orange Memorial Hospital. At the time of the accident decedent was 68 years of age and was a night housemother for the School of Nursing. As part of her duties she was required to check the windows and lights in the five-story building known as Mary Austin Hall. Although there is some question as to the floor of the building upon which she entered the elevator, it would appear from decedent's deposition that she was on the fifth floor intending to go down and check the fourth floor when she stepped into the elevator, fell and injured herself.
Prior to her death decedent's deposition was taken and partially read into the record at the trial. Decedent estimated that the floor of the elevator was some eight to ten inches below the level of the floor of the building. There was a light on just outside the elevator and also a light on inside the elevator. Decedent stated that the outside door of the elevator had to be opened manually. She did not remember if the inside gate-type door was open or closed. She did not look to see if the floor of the elevator was level with the landing before she entered, although she had on prior occasions stubbed her foot upon entering the elevator cab.
Apparently the elevator in question was installed about 1928 and contained a manually operated outside door and an inner gate which slid to one side. It was manufactured by A.B. See. However, the hospital had entered into a "Protective Maintenance Agreement" with defendant Westinghouse Electric Corporation (Westinghouse). This agreement was in effect at the time of the accident and required Westinghouse to maintain the elevator equipment, and to repair or replace: "MACHINE, MOTOR, GENERATOR AND CONTROLLER PARTS, including: Worms, Gears,
Thrusts, Bearings, Brake Magnet Coils, Brake Shoes, Brushes, Windings, Commutators, Rotating Elements, Coils, Contacts, Resistors, Magnet Frames, and other mechanical parts." [Emphasis supplied]. Excluded from the maintenance agreement were the following items: Shaftway enclosures, shaftway doors, cab floor, cab, car doors, light fixtures, power switches and wiring to controller.
Mr. George Manning, a maintenance man formerly employed by the hospital, testified that he was working on the night of the accident. He stated that while he could replace bulbs and fuses, re-set the overload switch and check the controls in the elevator, he could not perform any repairs upon the elevator and when same were required he called Westinghouse. On April 29, 1966 he first observed decedent sitting in a chair on the first floor, and found the elevator to be several inches below the floor level -- about eight inches or more. However, he did not measure the distance. He then took the elevator up several times to all floors. He noted that it stopped erratically at different floors from "six, two, four or any number of inches above or below the level, but never in excess of ten inches or approximately ten inches judging by guess-work." He then closed down the elevator and summoned Westinghouse. He further testified that the elevator had performed erratically on several other occasions and that Westinghouse serviced this elevator on previous occasions for the same problem. Finally, he testified that there was no way to control the movement of the automatic elevator other than to push the floor button.
Plaintiff's expert witness, Frank Hochstrasser, opined that an elevator should not stop more than three inches above or below the landing. He inspected the elevator on October 12, 1970 and was of the view that the erratic leveling was caused by a defect in the slow speed solenoid. What this means is simply that as a button on the control board or hallway panel is pushed, it registers on the board. The solenoid is a magnet which is activated by the selector on the control board. As the selector traverses the board and comes across
a registered floor, the fast speed motor is disengaged and the slow speed motor takes over causing the elevator to stop at the correct floor. In his judgment the slow speed solenoid controlled the leveling of the elevator cab and the solenoid in question was defective on April 29, 1966. He based his opinion on certain "call-back slips" dated prior to April 29, 1966 recording the dates of servicing by Westinghouse. From these slips he concluded that the slow speed solenoid was repaired on October 6, 1965 and that there was trouble with the leveling process on June 24, 1965. In his judgment Westinghouse should have discovered the defective solenoid allegedly responsible for the erratic leveling and subsequent accident. Hochstrasser further testified that the elevator cab had to be within seven inches of the landing in order to open the outer door to the elevator.
Defendant's expert, Irving Calamia, its field supervisor of maintenance, testified that the slow speed solenoid has nothing to do with the elevator leveling. He indicated that a passenger could open the inner gate five inches below the landing, stop the elevator, open the outer door and depart from the elevator. However, if the inner gate is opened more than five inches below the landing, the outer door will not open. He further testified that Westinghouse tries to keep the elevator leveling within two inches of the landing and that any greater distance creates a hazard for people entering the elevator. He indicated that the slow speed solenoid was serviced on February 4, 1966 and that on April 14, 1966 the high speed solenoid was adjusted. Significantly, he ...