Profeta v. Sears

WOOD (Parker), J. In this action for damages for personal injuries allegedly resulting from slipping and falling while in defendant’s store, the jury returned a verdict in favor of defendant. Plaintiff appeals from the judgment entered upon the verdict.

Appellant contends that the evidence was insufficient to support the verdict.

On May 4, 1954, plaintiff, accompanied by his friend Mr. Ferris, went to the second floor of defendant’s store for the purpose of buying a mirror. The mirror was not available, and plaintiff and Mr. Ferris went toward the escalator, intending to go to the first floor and leave the store. As they approached the escalator plaintiff was following Mr. Ferris, and just before plaintiff stepped onto the stationary metal plate, at the entrance to the escalator, Mr. Ferris was about 2 or 3 feet in front of plaintiff. Plaintiff testified that when he got hold of the moving handrail of the escalator he slipped and fell; the lower part of his back came in contact with a moving step; with the help of Mr. Ferris plaintiff got up when they were near the bottom of the escalator; when they arrived at the bottom of the escalator plaintiff leaned against a nearby counter, and Mr. Ferris went to get help; while Mr. Ferris was gone a woman, Mrs. Leigh, whom he had not known, spoke to him relative to his condition; she told him that she had seen some chocolate on the top plate of the escalator; then plaintiff lifted his foot, and Mrs. Leigh said that she believed that is “the same chocolate that was up on the top plate of the escalator”; he looked at his right shoe and saw a spot of brown on it which looked like chocolate; Mr. Ferris returned and assisted plaintiff in going to plaintiff’s automobile. He testified further that there was a candy counter across from the escalator but he did not remember whether it was the up or down escalator. On cross-examination, he said that while he was following Mr. Ferris and approaching the escalator he could see a portion of the iron plate at the top of the escalator.

[441]Mr. Perris testified that as he approached the escalator he saw a brown or chocolate-like substance, which appeared to be candy, on the bright metal plate at the top of the escalator; he stepped over the substance and onto the escalator; plaintiff was behind him; after he (witness) was on the escalator and the escalator had gone three or four steps, the plaintiff bumped Mr. Ferris in the back of his legs; he (witness) turned and saw plaintiff in a kind of crouch, and he grabbed plaintiff’s arm and helped him up; when they arrived at the bottom of the escalator plaintiff leaned on a nearby counter; then plaintiff said he had slipped on the plate at the top of the escalator and he believed that he had some substance on Ms shoe; plaintiff lifted Ms foot, and Mr. Perris saw on plaintiff’s shoe a smeared brown substance that looked like chocolate ; then he (witness) went to find a doctor but he did not find one; he returned to plaintiff and assisted him in going to the automobile; then the witness went back to the store to get help and thereafter a nurse and a man went to the automobile. On cross-examination Mr. Perris said that the substance which he saw on the top plate was about 3 inches wide and was toward the front of the escalator.