Enslein v. Hudson & Manhattan Railroad , 176 N.Y.S.2d 70 ( 1958 )

In an action to recover damages for personal injuries, Hudson & Manhattan Railroad Company and the Peelle Company appeal from so much of a judgment entered after trial by the court without a jury as is in favor of plaintiff against them, and the Peelle Company also appeals from so much of said judgment as is in favor of Hudson & Manhattan Railroad Company on the latter’s cross complaint. Plaintiff was injured on September 27, 1952 in the Journal Square station of Hudson & Manhattan Railroad Company when she fell on an escalator which had been installed by the Peelle Company and which was being maintained and serviced by the latter under a maintenance contract and indemnity agreement with said railroad company. Three months later, on December 22, 1952, she commenced an action against Hudson & Manhattan Railroad Company in the City Court of the City of New York. Thereafter, on May 29, 1953, she fractured her hip when she fell in the living room of her home in Brooklyn. Three months later, the Peelle Company was made a defendant in the City Court action. On February 2, 1954, more than eight months after the second accident, plaintiff verified a bill of particulars in the City Court action, in which bill no mention was made of the second accident or the injuries resulting therefrom and which bill specifically stated “No claim is made for hospital expenses or nurses’ services.” Nine months thereafter, on November 10, 1954, the action was transferred to the Supreme Court, Kings County, and the claim for damages was increased to $50,000. Plaintiff asserts that the second accident was caused by a dizzy spell resulting from injuries sustained in the fall on the escalator. Judgment, insofar as it is in favor of plaintiff against Hudson & Manhattan Railroad Company and the Peelle Company and insofar as it is in favor of Hudson & Manhattan Railroad Company against the Peelle Company, reversed and a new trial granted, as between plaintiff and said defendants, with costs to abide the event, unless plaintiff, within 15 days after the entry of the order hereon, stipulate to reduce the amount of the verdict in her favor from - $50,000 to $6,000, in which event, the judgment, insofar as it is in favor of plaintiff against Hudson & Manhattan Railroad Company and the Peelle Company and insofar as it is in favor of Hudson & Manhattan Railroad Company against the Peelle Company, as so reduced, is affirmed, without costs. Under all the circumstances we are of opinion that the finding of causal connection between the first and second accidents is contrary to the weight of the credible evidence. Nolan, P. J., Wenzel, Ughetta and Hallinan, JJ., concur; Beldock, J., dissents and votes to affirm the judgment. [8 Misc 2d 87,]