Larkin v. May Department Stores Company
| Decision Date | 07 January 1958 |
| Docket Number | No. 12213.,12213. |
| Parties | Laura LARKIN, Appellant, v. The MAY DEPARTMENT STORES COMPANY, Successors by Consolidation to Kaufmann's Department Stores, Inc., a Corporation. |
| Court | U.S. Court of Appeals — Third Circuit |
James P. McArdle, Pittsburgh, Pa., (James E. McLaughlin, Pittsburgh, Pa., on the brief), for appellant.
V. C. Short, Pittsburgh, Pa., for appellee.
Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges.
The plaintiff, Larkin, sued The May Department Stores Company of Pittsburgh (May), successor by consolidation to Kaufmann Department Stores, Inc. (Kaufmann), alleging that she was injured seriously by a revolving door in the Kaufmann store in Pittsburgh because the door was negligently maintained by Kaufmann and was not in proper working order. Jurisdiction is based on diversity. The law of Pennsylvania governs.
About noon on July 18, 1952, Miss Larkin, who was then seventy-three years old, and five feet, eleven inches in height and weighed about two hundred pounds, left Kaufmann's Department Store by its Smithfield Street exit, through the revolving door nearest Fifth Avenue. She testified that she started through the door with her hand or hands on the bar on the door at about the heighth of her waist; that the door revolved too fast as she went through it and continued to revolve after she had fallen, brushing her body "12 or 16 times" before it stopped. She stated that no one came through the door, or was in the door at the time of the occurrence of the accident.
An expert witness, Pitcairn, subpoenaed and called by Larkin, but in reality a witness for May, testified that he was a representative of International Steel Company, a division of which had manufactured the doors in use at Kaufmann's and that he was familiar with the construction and maintenance of revolving doors and had been familiar with the Kaufmann doors since 1922; and that his company or its agents had inspected these doors and this particular door on July 5 and July 30, 1951, and on February 28, 1952. He stated that the door contained at its top a control or braking mechanism but that this would not become effective until the speed of the door reached 12 to 14 revolutions per minute but that some control of the speed of a door such as this should have been effected by the padding or weatherstripping at the sides and bottoms of the panels, creating an air-lock as the segments of the door revolved. His testimony in general was to the effect that this particular revolving door was in a safe condition.1
Larkin also called as a witness Douglas, an individual engaged in a general construction business, and attempted to have the court accept him as an expert. The court did not deem him qualified. Douglas had had experience not only with revolving doors in general but was somewhat familiar with this particular door in June 1952. He stated that at that time he had seen daylight between the door's air-lock stripping and its semicircular metallic surface. These were the elements designed to create an air-lock as the segments of the door revolved to slow its motion. We refer in this connection to Pitcairn's testimony, set out in the preceding paragraph of this opinion. From Douglas' testimony the jury would have been entitled to infer that there were breakages in the airlock- or weather-stripping and that the braking mechanism of the door operated in a defective manner because of this deficiency.
Larkin also offered as an expert witness...
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...followed in Pennsylvania the plaintiff's evidence in the record before us definitely presents a jury question. Larkin v. May Department Stores Co., 3 Cir., 1958, 250 F.2d 948. In Pennsylvania, a directed verdict can be entered only where the facts are such that reasonable men could not draw......
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