Century Indemnity Co. v. Arnold, 104.

• Decision Date: 06 February 1946
• Docket Number: No. 104.,104.
• Citation: 153 F.2d 531
• Parties: CENTURY INDEMNITY CO. v. ARNOLD et al.
• Court: U.S. Court of Appeals — Second Circuit

153 F.2d 531 (1946)

CENTURY INDEMNITY CO. v. ARNOLD et al.

No. 104.

Circuit Court of Appeals, Second Circuit.

February 6, 1946.

John Wilson Hood, of New York City, for appellant.

Glenney, Mathews & Hampton, of New York City (Walter L. Glenney, of New York City, of counsel), for appellees.

Before L. HAND, SWAN and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This is the second time this case has come before us. On the first trial the complaint was dismissed at the close of the plaintiff's case. On appeal, 2 Cir., 145 F.2d 164, the judgment was reversed on the ground that the res ipsa loquitur doctrine required submission of the case to the jury. The present appeal is from a judgment entered upon verdict of the jury in favor of the defendants after a second trial.

The action was brought by an insurance carrier, the statutory assignee under § 29 of the Workmen's Compensation Law of New York, Consol.Laws c. 67, on the cause of action of a workman who suffered personal injuries while working in an apartment house owned by the defendants. Federal jurisdiction rests upon diversity of citizenship. The facts as stipulated or testified to by the plaintiff's witnesses are as follows: The workman, Abe Kalman, was an experienced painter employed by Essie Cohen, the plaintiff's insured, who was under contract with the defendants to redecorate one of the apartments in their building. Kalman was injured by falling from a stepladder on which he was standing to repair cracks in the ceiling preparatory to painting. One of the legs of the ladder broke through a floor board causing the ladder to tip against the wall and the workman to fall. He claimed that the fall injured his leg upon which he previously had had a series of ulcers that finally had healed, and produced a new ulcer which resulted in a disability claim under the workmen's compensation policy issued by the plaintiff to his employer. Compensation was paid him by the plaintiff, and by reason of the workman's failure to bring suit within a year after the accident, plaintiff became subrogated by virtue of § 29 of the Workmen's Compensation Law to his right of action. The apartment had been vacant for several months and was under the control of the defendants who had purchased the building sixty days before the accident. They continued the agent of the prior owners in charge of the building and retained the services of the former superintendent of the building. No inspection of the floor was made by the defendants, and the only attention their superintendent had given it was such as was incidental to sweeping and cleaning. While cleaning he saw nothing wrong with the floor; nor did the workman observe any defect when setting up his ladder. After the accident the superintendent examined the board which broke, replaced it with another piece of wood and threw the broken piece away. He gave no testimony regarding its condition, but said the broken piece was about an inch wide and two feet long. The photograph in evidence appears to show that the broken piece was at least two inches wide. Defendants presented only medical testimony. The jury returned a verdict in favor of the defendants and the plaintiff appeals. Denial of the plaintiff's motion for a directed verdict, and alleged errors in the conduct of the trial and in the instructions to the jury are urged by the appellant as grounds for reversal.

The appellant contends that by the law of New York, in a case where the res ipsa loquitur doctrine is applicable, the plaintiff is entitled to a directed verdict if the defendant offers no evidence on the issue of liability. Apparently at one time that was the New York rule. Hogan v. Manhattan R. Co., 149 N.Y. 23, 43 N.E. 403. But the later cases, as we understand them, hold that the res ipsa loquitur doctrine means no more than that a plaintiff who brings himself within it makes a prima facie case which entitles him to go to the jury, but he must still persuade the jury that the defendant was negligent, even though the defendant has presented no explanation of the accident. Foltis v. City of New York, 287 N.Y. 108, 38 N.E.2d 455; Dittiger v. Isal Realty Co., 290 N.Y. 492, 49 N.E.2d 980. In the Foltis case, 287 N.Y. 108, at page 119, 38 N.E.2d 461, Chief Judge Lehman quoted with apparent approval the following statement from Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 57 L.Ed. 815, Ann.Cas.1914D, 905:

"Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff."

Although the defendants offered no testimony in explanation of why the board broke, they did bring out on cross-examination of the injured workman and of the superintendent of their building, whom the plaintiff had called as a witness, that no defect in the floor was apparent to casual observation. Whether the defendants were negligent and whether their negligence caused injury to the plaintiff were issues for the jury to decide. No error was committed in denying the plaintiff's motion for a directed verdict.

Numerous errors are asserted with respect to the court's charge to the jury. One relates to the court's refusal to charge as to the workman's interest in the suit. In a suit brought by an insurance carrier as statutory assignee of the workman's cause of action, if the recovery exceeds the compensation awarded and the expenses of the suit, two-thirds...