Blodgett v. Walker Scott Corp.

BARNARD, P. J. The minor plaintiff, being two months less than 11 years old, was injured while riding on an escalator between the first and second floors of a store operated by the defendant. This escalator had a banister on each side, 11 inches in width at the top, which was stationary except for a moving handrail along the middle. Near the outer edge of the banister, and at the “apex” or angle where it passed through the ceiling, there was a triangular guard plate which was about 18 inches from the nearest edge of the tread of the escalator upon which people stood.

Shortly before the accident the boy, with his parents, had gone to the second floor on this escalator. On their return to the first floor the boy asked and received his mother’s permission to ride up again. The parent stood a few feet from the bottom and watched him until he was about halfway up, and then looked elsewhere. While he was leaning across the banister and looking down his head came in contact with the guard plate at the ‘ ‘ apex, ’ ’ causing the injuries complained of. The escalator was stopped and the boy ran down past the other occupants to where his parents stood.

The complaint alleged that this escalator was so negligently “maintained and operated” by the defendant as “to be wholly unfit and dangerous for public use. ’ ’ After a trial without a jury, and an inspection of the premises by agreement of the parties, the court found that it was not true: that the defendant maintained or operated this escalator carelessly or negligently ; that it was unfit or dangerous for public use; that the defendant had, or should have had, knowledge of any dangerous or unfit condition; or that any act of negligence on its part was the proximate cause of the accident. The plaintiffs have appealed from a judgment in favor of the defendant.

Claiming insufficiency of the evidence, it is argued that there was no guard plate at the “apex”; that an elevator starter, who was the only attendant, saw and realized the boy’s dangerous position, but did not warn him or stop the escalator; that instead of doing her duty she asked the maintenance supervisor to stop it; that the court’s refusal to grant a nonsuit discloses a prima facie case, which was not overcome by respondent’s evidence; that the testimony of a state inspector related only to a minimum standard, while a higher degree of care was here required; that the testimony that the boy leaned over the banister related only to his conduct, and not to the issue as to respondent’s negligence, and that the [253]