SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 1, 1968
EVELYN FITZGERALD, AN INFANT, BY HER FATHER AND NATURAL GUARDIAN, MATTHEW FITZGERALD, ET AL., RESPONDENTS,
B. GERTZ, INC., APPELLANT
Judgment of the Supreme Court, Queens County, entered October 26, 1967, reversed, on the law and the facts, and new trial granted, with costs to abide the event.
Beldock, P. J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.
In our opinion the verdict, predicated on a finding of negligence due to an excessive violent jerking motion of an escalator, is against the weight of the evidence. Further, the trial court erred in not permitting defense counsel to question a witness for plaintiffs concerning the effect of the alleged irregular movement on other persons who were on the escalator. Finally, the testimony of plaintiffs' expert witness, called in rebuttal, was not supported by sufficient facts in the record upon which liability could be predicated.
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