Appeals, Nos. 178 and 179, Jan. T., 1954, from judgments of Court of Common Pleas No. 6 Of Philadelphia County, Sept. T., 1952, No. 2679, in case of Robert Todd, a minor, by his guardian, Calvin Todd v. Lit Brothers. Judgments reversed; reargument refused April 18, 1955.
Ralph S. Croskey, with him Croskey & Edwards, for appellant.
Perrin C. Hamilton, with him Hamilton, Smith & Darmopray, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In this action of trespass for injuries to minor plaintiff, suffered while a business visitor on defendant's premises, the jury returned a verdict for plaintiffs. The court below refused defendant's motions for new trial and judgment n.o.v., and defendant appeals.
Viewed in a light most favorable to plaintiffs the testimony established the following: Minor plaintiff, accompanied by his mother, entered upon defendant's escalator to ascend from the basement to the first floor. The Minor plaintiff, then aged 2 1/2 years, stood on the same step with his mother, who held his hand. When approximately three or four steps from the top, they were pushed from the rear by other customers, and fell forward. Minor plaintiff fell on his hands, and as a result of the continued movement of the escalator the middle finger of his right hand became caught in the comb-like mechanism at the top, was crushed and severed.
Although the child was in plight for two or three minutes, and despite repeated calls for help, no employe of defendant rendered aid nor was the movement of the escalator stopped until the child's finger was torn off. When the mother first called for help, only the tip of the finger had entered the mechanism, - at which time, if the movement had been stopped the finger would not have been lost. The escalator could have been stopped by pushing a button either at its top or bottom.
Defendant contends that the initial fall of minor plaintiff did not result from any fault of the defendant, and that it cannot be liable for the injuries on the theory of unreasonable delay in stopping the escalator. It so contends on the basis that the testimony discloses incontrovertible physical facts which make the theory of liability an impossible one (viz. the mother could not have stood still on a moving stairway; 60 to 180 persons on the crowded escalator behind the plaintiffs had to crawl over the alleged standing mother; the time interval for steps to level off or enter the comb plate, the only two points where the finger could have been caught, was less than a tenth of a second; the injury was a crushing fracture, not a chewed up wound). It furthers contends that the jury should not have been permitted "to find what, if any, part of the injury was occasioned after the initial trauma."
These contentions cannot be sustained. The testimony, in addition to the foregoing, upon which it seeks to base its "incontrovertible physical facts" theory is that of its witness who was an expert on escalators, but who did not see the accident. This witness testified as to the escalator's mechanism and operation, but he did not establish that the accident could not have occurred as ...