Aquilino v. R. H. Macy & Co.

12 A.D.2d 765 | N.Y. App. Div. | 1961

In an action by an infant to recover damages for personal in jmies sustained by her as a result of her fingers becoming wedged between the step of a descending escalator and its comb plate, and by her father to recover damages for loss of the infant’s services and medical expenses, plaintiffs appeal from a judgment of the Supreme Court, Kings County, rendered January 30, 1959, dismissing the complaint, after a non jury trial. Judgment affirmed, with costs. It appears that the trial court: (a) accepted defendant’s version of the accident that the infant plaintiff sat on the steps of the escalator and, while in that position, her fingers were caught; and (b) rejected plaintiffs’ version that the escalator jerked, causing the infant plaintiff to fall and sustain the injuries.There was no other proof that the escalator was defective or that it lacked safety devices or that defendant failed to use reasonable care in its inspection and maintenance. Nolan, P. J., Beldock and Christ, JJ., concur; Kleinfeld and Pette, JJ., dissent and vote to reverse the judgment and to grant a new trial.