Perez v. Hearn Department Store Corp. , 37 A.D.2d 842 ( 1971 )

In a negligence action to recover damages for personal injuries, defendant appeals from a judgment of the Supreme Court, Kings County, entered March 8, 1971, in favor of plaintiff upon a jury verdict of $15,000. Judgment reversed,- on the law, with costs, and complaint dismissed. The findings of fact are not affirmed. Plaintiff was riding on a descending escalator, in defendant’s store. She testified that as she was so riding she looked down and saw a number of people rushing to and fro, close to the bottom of the escalator. When she was approximately five steps from the bottom of the escalator she saw an elderly woman fall at the foot of the escalator. The ensuing chain reaction of people falling backwards on the escalator caused a woman directly in front of plaintiff to fall on plaintiff. Plaintiff fell and her pinky became caught between the stationary plate at the bottom of the escalator and the escalator itself. The totality of the proof on plaintiff’s behalf leads to the conclusion that there was no proof of any negligence of defendant. The testimony did not establish that the people at the bottom of the escalator had caused an inability to alight therefrom. Thus, no duty was thrust upon defendant to better control the persons who gathered in its store. Furthermore, there was absolutely no proof that persons on the floor at the bottom of the escalator were the cause of the elderly lady’s fall. Munder, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.