2 Mass. App. Ct. 120 | Mass. App. Ct. | 1974
These actions of tort arise from an accident which occurred on an escalator designed and inspected by the Westinghouse Electric Corporation (defendant) which was located on premises owned by the Alstores Realty Corporation (Alstores) and leased by the Jordan Marsh Company (Jordan Marsh). The accident took place when a four year old boy fell while traveling on a downward moving escalator. The child’s right hand was caught in the space between the moving escalator and the sidewall (or skirt) and was drawn under the escalator combplate, causing the amputation of the child’s hand and other severe injuries to his right arm.
Alstores, Jordan Marsh, and the defendant were each sued by the child for injuries received and by the child’s father for his consequential damages.
As regards the first ground advanced by the plaintiffs, the parties’ stipulation reads in pertinent part as follows: “1. The defendant Jordan Marsh Company has agreed to pay to the plaintiff the sum of $150,000 without interest or costs in full settlement of the plaintiffs’ claims against the defendant Jordan Marsh Company only .... 3. No party shall directly or indirectly refer to the amount of the settlement hitherto referred to in paragraph 1 to the jury.” The statements which the plaintiffs consider violative of the above stipulation are not set forth in the substitute bill of exceptions. For purposes of this opinion, however, we shall accept the reconstruction of the remarks set forth in the. plaintiffs’ motion for a new trial. The defendant’s attorney stated, in substance, that a good sum of money invested over a period of years would multiply and that the jury could consider that Jeffrey Roth, being represented by competent counsel, received an adequate settlement for the injuries he received. We cannot construe these remarks as a direct or indirect reference to the amount of the settlement. Even if the jury believed from the remarks at issue that Jordan Marsh had adequately compensated the plaintiffs, they would not have had any indication as to the amount of the settlement. We are of the opinion that the defendant did not violate the terms of the stipulation.
Even if the plaintiffs’ motion were treated as based on the alleged impropriety of the remarks of the defendant’s attorney, irrespective of the effect of the stipulation, the plaintiffs would not be entitled to a new trial. The judge’s course of action in the face of improper arguments to the jury rests largely in his discretion. Commonwealth v. Witschi, 301 Mass. 459, 462 (1938), citing O’Neill v. Ross, 250 Mass. 92, 96 (1924). See also Shea v. D. & N. Motor Transp. Co. 316 Mass. 553, 555
Whether to set aside the verdicts as against the weight of the evidence was likewise within the discretion of the judge. Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 60 (1948). Herwitz v. Massachusetts Bay Transp. Authy. 353 Mass. 594, 600 (1968). In this instance there was expert testimony by one Gusrae that the escalator in question was of safe and proper design when installed by the defendant in 1939, and further evidence that the defendant had recommended to Jordan Marsh well in advance of the accident that safety switches, designed to stop an escalator automatically under conditions such as those presented by the accident in this case, be installed on its escalators.
Exceptions overruled.
In conjunction with the plaintiffs’ actions, Alstores and Jordan Marsh entered a third party declaration, alleging a right to be indemnified by the defendant in the event that they should be found liable to the plaintiffs.
Jordan Marsh did not accept the recommendation.