Poyas v. RKO Keith Orpheum Theatres, Inc.

Steuer, J. The infant plaintiff, a child two and a half years of age, has recovered a verdict for $12,000 against the defendant. It appears that the plaintiff was taken by her mother into the lobby of defendant’s theatre, and while the mother was looking at the display of pictures in the lobby the plaintiff wandered off and was next seen by her mother immediately in front of a radiator cover which was falling on the child. Several possibilities as to how the accident happened will occur under this state of facts. Among these would be that the cover fell because the child pulled it down on herself, or that it had been improperly put in place, or that it was defective to the extent that it was unstable. None of these possibilities is claimed by the plaintiff. There is no contention that the cover was defective in any respect, except that it had no exterior fastenings in the shape of hooks or wires. The sole claim, therefore, is improper design. Where the article or device is one in common and extensive use, conforming to the usual pattern is not negligence (Smolen v. Grandview Dairy, 301 N. Y. 265; Levine v. Blaine Co., 273 N. Y. 386; Garthe v. Ruppert, 264 N. Y. 290). Furthermore, the fact that, despite the passing of many thousands of people, this cover had never fallen before is a potent factor in showing that the design was reasonably safe (see De Salvo v. Stanley-Mark-Strand Corp., 281 N. Y. 333, motion for reargument denied 282 N. Y. 589). As the record is silent as to any difference in installation from that generally employed, no issue on that point was presented (see Smolen v. Grandview Dairy, supra). It is, of course, always possible after an accident to find different ways in which a thing may have been done, and to point out which ways might possibly have obviated the accident. But even if it were assumed that an issue was presented, it is difficult to see how this jury, under the very general instructions as to negligence, could have understood what the precise question that was being presented to them was (Maloney v. Kaplan, 233 N. Y. 426, 430; Simon v. Brooklyn & Queens Tr. Corp., 269 App. Div. 847; Thomas v. Wollcott, 180 N. Y. S. 798). The judgment should be reversed, on the law and the facts, and a new trial ordered, in the exercise of discretion, with costs to abide the event.