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Householder v. Prudential Ins.

SEPTEMBER 23, 1970.

PAMELA HOUSEHOLDER, A MINOR, BY HER FATHER AND NEXT FRIEND, RICHARD HOUSEHOLDER, PLAINTIFF-APPELLANT,

v.

THE PRUDENTIAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. RICHARD H. JORZAK, Judge, presiding. Affirmed.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Plaintiff appeals from a directed verdict entered in favor of defendant, The Prudential Insurance Company, at the close of plaintiff's evidence.

Plaintiff's second amended complaint contained two counts. Count I alleged that defendant, The Prudential Insurance Company, as owner and operator of an escalator on its premises "so carelessly and negligently operated its escalator so as to cause it to shake, jerk, make noises, and move in a `bouncing' fashion, thereby causing the plaintiff's body to come into contact with the escalator" and that Prudential "was guilty of negligence in that it caused and allowed a part of said escalator to be in a sharp and dangerous condition so that when said sharp portion of the escalator came in contact with the leg of the plaintiff, it caused a severe and permanent injury." Count II alleged that the Westinghouse Electric Corporation was guilty of carelessness and negligence in the design, manufacture, installation and maintenance of the escalator in the same manner as above set forth.

At trial there was testimony that on August 2, 1966, the plaintiff, who was two and one-half years old, visited the Prudential Building accompanied by her mother, father, twin brother, grandparents, and two aunts. Upon arrival at the building the family took the elevators to the fortieth floor. From there they took two banks of escalators to the top floor. They did not pay the admission fee to go out on the observation platform since they decided it would not be worthwhile. However, they did remain on the top floor for ten to fifteen minutes looking around and purchasing some souvenirs and postcards.

As the family started to leave, plaintiff and her mother proceeded first, followed by the grandparents and aunts and then Mr. Householder and plaintiff's twin brother. Mrs. Householder helped the plaintiff on the first escalator and together they rode down. At the bottom of the first down-escalator Mrs. Householder picked up the plaintiff by putting her hands on the calves of plaintiff's legs and lifting her up. Plaintiff and Mrs. Householder then mounted the second down-escalator. Plaintiff held Mrs. Householder's right hand and placed her other hand on the handrail. Just a moment before they were to step off, Mrs. Householder heard a "slight thump" and plaintiff's whimper. Mrs. Householder did not know where the sound came from. At about the same time she noticed a "little extra movement in the escalator, maybe a little jerk or something along with the thump. . . . It was just ever so slightly."

After reaching the bottom Mrs. Householder again reached down with her hands on plaintiff's legs to pick her up. She noticed there was a wetness on plaintiff's right leg and as she looked down she saw a cut. At no time while on the second down-escalator did plaintiff crouch, fall, sit down, or tug at her mother's hand. After the "slight thump" plaintiff made no movement which Mrs. Householder observed or felt; she continued to stand erect down the second bank of escalators; and she did not start crying until Mrs. Householder touched her leg. Mrs. Householder did not observe plaintiff's leg before plaintiff got on the escalator while she was upstairs.

Plaintiff was taken to the hospital where approximately forty sutures were required to close the wound. The scar on the outside of plaintiff's right leg measures approximately four and one-half inches in length and one-half inch in width, although the width varies.

At the close of plaintiff's evidence both Prudential and Westinghouse moved for directed verdicts. After argument on the motions the trial court granted directed verdicts for both defendants. Plaintiff appeals only from the directed verdict granted in favor of Prudential.

Opinion

Plaintiff contends that she presented sufficient evidence of defendant's negligence to submit the case to the jury. She bases her contention on the testimony of Mrs. Householder, which she claims shows that her injury must have occurred on the escalator. Defendant argues that there was no showing of negligence on its part which caused "plaintiff's body to come into contact with the escalator."

In her second amended complaint plaintiff specifically alleged that a sharp portion of defendant's escalator came in contact with her leg causing a severe and permanent injury. However, at trial plaintiff presented no evidence which would identify "said sharp portion of the escalator," and she failed to proffer any evidence that a sharp portion of defendant's escalator actually came in contact with her leg causing the injury. Therefore, we must conclude that based on plaintiff's failure to introduce any evidence of "said sharp portion" there was nothing to submit to the jury on this allegation of defendant's negligence.

Plaintiff's second amended complaint also charged that the defendant "so carelessly and negligently operated its escalator so as to cause it to shake, jerk, make noises, and move in a `bouncing' fashion, thereby causing the plaintiff's body to come into contact with the escalator." Plaintiff had the burden of proving these allegations. In Cobb v. Marshall Field & Co., 22 Ill. App.2d 143, 159, 159 N.E.2d 520, the court states:

It was the plaintiffs' overall burden to establish the general or specific negligence of the defendant by a preponderance of the evidence. It was not enough for the plaintiffs to prove they were injured or that they were injured because of the negligence of someone. It was incumbent upon them to prove that the negligence of the defendant caused their injuries.

Mrs. Householder testified that just a moment before plaintiff and she were to step off of the second down-escalator she heard a "slight thump" and plaintiff's whimper. At about the same time she also noticed "a little extra movement in the escalator, maybe a little ...


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