The opinion of the court was delivered by: SCHOONMAKER
Plaintiff is suing to recover damages for personal injuries alleged to have been received by her when she fell in defendant's store as she was walking down a moving escalator. The trial resulted in a verdict in her favor for $3116.
Defendant has moved for judgment non obstante veredicto in its favor, or in lieu thereof, for a new trial alleging that the verdict is excessive.
The facts developed at the trial are briefly these: Plaintiff stepped onto a moving escalator at the 7th floor to go to the 6th floor of defendant's store. This escalator was fourteen inches wide, equipped with handrails which moved with the steps. She could have stood still on this escalator and have been safely conveyed to the 6th floor. But she elected to walk down the moving steps without making any use of the handrails moving with the steps, provided to support persons using the escalator (R. pp. 17, 18). Plaintiff also admits (R. pp. 17, 18) that had she stood still on the step where she entered the escalator, nothing would have happened to her whether she had held onto the handrail or not.
The plaintiff described what happened to her as follows (R. pp. 4-6):
"Q. And at the time this accident occurred, where were you in the store? A. Between the seventh and sixth floor on the escalator.
"Q. And what were you doing on that escalator? A. I was descending, like any normal pair of stairs, to get me to the sixth floor. I intended to leave the store immediately.
"Q. Was that escalator moving or was it stopped? A. It was moving.
"Q. Now, will you tell us just what happened when you, as you say, were about to take the third step? A. Well, in taking the third step, I had placed my left foot firmly on the third step and in so doing the step shifted or lurched, a motion somewhat like jello would be; it shifted a little to the right and to the left, and tilted somewhat forward. So it was a complete unnatural movement of the whole step.
"Mr. Sorg: I ask the last part of the answer be stricken out as to the complete unnatural movement of the whole step. We are talking about an escalator, and if there was anything wrong with that step, I don't think this lady is qualified to state what the condition of the step was.
"The Court: That, of course, is a conclusion of the witness. So far as she is able, she can describe what she saw on the step.
"Mr. Sorg: She has described that the step moved in a jello-fashion, if I ...