Opinion
June 9, 1959
Present — Foster, P.J., Bergan, Coon, Herlihy and Reynolds, JJ.
Appeal from a judgment of the Supreme Court, Albany County granting the defendant's motion for a nonsuit and dismissing the plaintiffs' complaint. The plaintiffs herein are husband and wife. On June 15, 1956 they entered the store of the defendant in Syracuse, New York to purchase some suspenders which they discovered were sold in the basement. The plaintiff, Mrs. Kaese, got on the escalator first and shortly thereafter her husband got on. It was the plaintiffs' testimony that the escalator then began to vibrate causing Mrs. Kaese to fall forward and sustain the injuries for which she presently seeks redress. At the close of the plaintiffs' case the defendant moved for a nonsuit and dismissal of the complaint for failure to prove the cause of action alleged in the complaint, or any cause of action. The court reserved decision and the defendant rested and renewed its motion. The testimony of the plaintiff Mrs. Kaese was through an interpreter and is somewhat confusing. However, it appears that the vibration of the escalator was not very severe. She admitted it was a gentle vibration and stated it felt as though a heavy truck was going by. On the question of contributory negligence, Mrs. Kaese and her husband testified that she did not have her hand on the rubber support or railing on the side of the escalator at the time of the accident. Mrs. Kaese also stated that when she felt the vibration she moved her foot forward and slipped. She was a woman 65 years of age and was wearing dark sun glasses. It would seem that the inference is permissible that plaintiff, who does not appear to have been too familiar with escalators although she stated she had ridden on one in Germany, became excited when she felt what was perhaps a normal vibration and because of her own actions fell. No one else on the escalator at the time fell. Therefore, in our view the trial court was justified in granting a nonsuit and dismissing plaintiffs' complaint. Judgment unanimously affirmed, with costs.