Duffy, Castle and Kiley, Circuit Judges.
These appeals are from judgments in two negligence actions wherein J.C. Penney Company (Penney) and Westinghouse Electric Corporation (Westinghouse) were the defendants. The jury rendered verdicts against both defendants in the personal injury action in the amount of $35,000, and in the amount of $13,900 in the action by the father of the injured boy for loss of services. The two suits were tried together.
Penney cross-claimed against Westinghouse for indemnity. Penney filed a motion for judgment n.o.v. or for a new trial. The trial court awarded indemnity to Penney. Judgment was entered for Penney on the cross-claims. After Westinghouse appealed, Penney filed a protective appeal. The questions involved in the cross-actions between the defendants are not issues on the instant appeals.
On August 25, 1959, Jerry Gillam, aged three years, in the company of his mother, was in a Penney store in Indianapolis, Indiana. They got on an escalator to travel from the second floor to the first floor of the store. Mrs. Gillam was holding her son's right hand when he sat down on a step of the moving escalator. The flesh of the boy's left arm became caught between the riser of the step and the upright metal side-wall called a skirt. Another passenger stopped the escalator shortly after the boy's arm was caught. By this time the boy's hand and arm had been drawn below the level of the step tread. The arm was injured to a point below the elbow although no bones were broken.
The manner in which the injury occurred is described by appellee substantially as follows: The skin of the boy's forearm just above the left wrist touched the aluminum skirt or side at the junction of the nose or edge of the step and the upright side of the skirt. This pushed the skin into a narrow space, forcing the skin against the skirt which caused greater friction and held the arm. The space opened up and the step rolled over the arm until the arm was down in the space between the end of the step and the skirt up to approximately the boy's elbow.
The escalator in question was one of six manufactured and installed by Westinghouse for the defendant Penney. In the store in question, they were all installed at the same time and were alike in their parts, construction and working principles. Westinghouse had serviced, maintained and inspected these escalators from the time of their installation until the time of the trial. Westinghouse's service man, Resener, was in the Penney store three or four times a week performing his regular chores in servicing the escalators. He had, in fact, made a service inspection the day before the boy was injured. He testified he found the escalator in good operating condition with no spacing between the step and the skirt in excess of 3/16 inch on one side and 1/4 inch over all.
All escalators in the Penney store had been approved by the Elevator Safety Subdivision of the State of Indiana when installed. Thereafter, these escalators were inspected by "special inspectors" of the Elevator Subdivision. These inspectors were, for the most part, employees of insurance companies, and they inspected escalators and elevators in buildings which their respective companies had insured. Both before and after the date of the accident, on occasions of the six-month inspections by the State Elevator Inspector, excessive clearances were found in one or more of the Penney escalators.
Witnesses Hesselberg and Miller testified that the escalator unit in question was as good as any at the time of installation; that there is no custom or practice in the industry relating to maintaining any certain spacing between steps and skirts. They acknowledged the movement of steps past the skirt was a dangerous feature, but each stated this was true of any piece of machinery with moving parts, and that there was no way of changing the escalator in question, or any other escalator, so as to prevent this type of accident.
Plaintiffs claim that Westinghouse a) failed to maintain the escalators in safe condition; b) failed to make reasonable inspections of the escalators; and c) maintained the escalator with an unreasonably large space between the skirt and the step.
On this appeal, Westinghouse puts in issue the sufficiency of the evidence to support the judgments. We, therefore, consider only the evidence most favorable to the plaintiffs and the inferences reasonably and fairly to be drawn therefrom.
Evidence was received, which the jury was entitled to believe, that Westinghouse gave instructions to its service and maintenance personnel in charge of its escalators in Penney's and elsewhere, that the correct clearance between the end of the step and the skirt was a maximum of 3/16" on one side and not more than 1/4" total for both sides. There was also evidence that if Westinghouse's inspector Resener found the clearances to be excessive, he would correct them.
In the contract between Westinghouse and Penney, the former agreed to keep the escalator equipment "properly adjusted" and to "use all reasonable care to maintain the electric stairways in proper and safe operating condition."
Westinghouse strongly insists that prejudicial error was committed by the court in receiving evidence of two other accidents on Penney escalators in Indianapolis. One took place on the escalator where Jerry Gillam was injured and about forty months thereafter; the other accident was on a different Penney escalator and occurred about ten months prior to the accident in question. Westinghouse points out that both of the incidents involved rubber overshoes or boots which were caught between the escalator step and the skirt. However, the jury was entitled to consider that all of Penney's escalators were identical in size, shape, construction and design, and had been ...