Sutera v. Palmieri

WILSON, J.

Plaintiff appeals from a judgment refusing to award damages to him in a personal injury action.

Respondent Donny was the owner and respondents Palmieri the lessees of the storeroom in which the accident occurred. Respondents Palmieri were engaged in the wholesale and retail cleaning and dyeing business. At the rear of the premises there was a fire door approximately eight feet high, eight feet wide and four inches thick, sheathed in steel and weighing between 700 and 1,000 pounds. It was a sliding or rolling door to which three iron bands were attached and on the ends of the bands were rollers on which the door rolled northerly and southerly on an overhead iron bar. On the day

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of the accident Norma Palmieri was the manager of the business. When she determined to close the store in the evening she was unable to operate the door by reason of its weight. She called appellant from his place of business across the street and asked him to assist her. Appellant walked with her to the rear of the premises where he found that the door was open for the entire distance of the doorway. The handle of the door was on the south or right-hand side. Appellant, using his left hand, took hold of the handle and pulled the door from left to right. It rolled easily for about six feet when something caused it to stop. There is a conflict in the evidence as to the cause of the accident, whether the door fell while being pulled along the rollers or fell from the track as a result of appellant’s action in shaking it. Mrs. Palmieri testified that she helped appellant in his attempt to close the door and that while he was pulling on the handle with both hands she was at the rear of the door pushing it; that when the door ceased rolling appellant forcefully shook it with both hands attempting to shake it loose when it fell on him. Appellant denied that Mrs. Palmieri assisted him, stated that he used only his left hand in pulling on the door, and denied that he shook or “jiggled” it before it fell on him.

The court resolved the conflict by finding that none of the respondents managed or controlled the door at the time it fell; that at said time the door was under the management and control of appellant; that the door was not negligently maintained or operated by respondents, and that appellant’s injuries were not as a direct and proximate result of any negligence on the part of any of the respondents. The findings of the court are conclusive and every substantial conflict must be resolved in favor of a finding made upon conflicting evidence.