Cohen v. Western Hotels, Inc.
| Citation | 276 F.2d 26 |
| Decision Date | 24 February 1960 |
| Docket Number | No. 16455.,16455. |
| Parties | Lucy K. COHEN, Appellant, v. WESTERN HOTELS, INC., and E. B. DeGolia, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Freed & Freed, Kurt W. Melchior, San Francisco, Cal., Barry Sidman, Strasser, Spiegelberg, Fried & Frank, Washington, D. C., for appellant.
Sedgwick, Detert, Moran & Arnold, Scott Conley, Bruce A. Bailey, San Francisco, Cal., for appellees.
Before ORR, HAMLEY and HAMLIN, Circuit Judges.
The morning of August 4, 1957, appellant, having been an overnight guest at the Maurice Hotel in San Francisco, California, checked out, then with baggage and parcels in her arms started toward the main entrance and fell on a rug which was spread in the lobby of the hotel. Appellant sustained serious injuries. Alleging negligence on the part of the hotel owners in the manner in which the rug was laid, appellant brought suit. Appellee answered denying negligence and also alleging contributory negligence. The issues were tried to a jury which found in favor of appellee.
The principal contention of appellant is that the trial court committed prejudicial error in refusing to permit appellant to introduce certain proffered so-called expert testimony. She also complains of a statement of the trial court during the proceedings that he would consider federal and not state law as controlling on that question. In approaching consideration of the main issue presented to us as to the alleged error in excluding the proffered expert testimony, we note that it is agreed by both parties that the admission or rejection of such testimony is within the sound judicial discretion of the trial court, but appellant contends that the court abused its discretion.
The rug was an eleven by thirty-one foot Chinese throw rug loosely placed upon matting and not tacked down. Appellant's daughter, who was with her at the time of the accident, testified that the rug extended four to five inches beyond the matting. Pictures taken immediately subsequent to the accident disclose a wrinkled or curled up condition of the edge of the rug. It is appellant's theory that she caught her heel in this curled up portion of the rug which caused her fall. Appellant desired to introduce expert testimony as to the proper manner of laying rugs and thus demonstrate the alleged negligence of appellee in failing to follow this procedure. To this end she called a witness Yosiph. He testified that he had had some thirty years experience in the rug business, having sold, cleaned and installed all types of rugs and carpets. The witness seemed to have difficulty in understanding the questions asked, his confusion being in large part due to the long colloquy between the court and counsel. However, it seems quite evident from the record that had he been given a chance to answer he could have at least testified as to how he laid carpets and rugs. At no time in the questioning of the witness was he asked whether he was familiar with the manner in which rugs are laid in hotel lobbies, and no offer was made by appellant that there was an established practice, nor that appellee had knowledge of such practice if one existed. The case of Ordway v. Hilliard, 1943, 266 App.Div. 1056, 44 N.Y.S.2d 819, upon which appellant relies, is, therefore, not in point. Irrespective of whether or not the witness was shown to have the proper qualifications, or whether the proper questions were asked, it is evident that the trial court based its ruling on the ground that under the circumstances of this case expert testimony was not necessary. Hence, the question we are called upon to decide is: Did the court abuse its discretion? We think not.
...
To continue reading
Request your trial
-
Lessig v. Tidewater Oil Company
...they wished to post. 13 Although instructions need not be framed in terms of the specific facts in all cases (Cohen v. Western Hotels, Inc., 276 F.2d 26, 28 (9th Cir. 1960); cf. Baker v. United States, 310 F.2d 924, 930 (9th Cir. 1962)), it would seem appropriate to do so where, as here, th......
-
Krizak v. WC Brooks & Sons, Incorporated
...270 (1891); Swift v. Southern Rwy. Co., 307 F.2d 315 (4 Cir. 1962); Barnes v. Smith, 305 F.2d 226 (10 Cir. 1962); Cohen v. Western Hotels, Inc., 276 F.2d 26 (9 Cir. 1960); Ackelson v. Brown, 264 F.2d 543 (8 Cir. 1959). Whether, in any given case, the expert testimony is necessary to aid the......
-
Gowdy v. United States
...business or occupation as to be beyond the ken of the average layman * * *." McCormick, Law of Evidence 28; Cohen v. Western Hotels, Inc., 276 F. 2d 26, 27 (9th Cir. 1960); and Henkel v. Varner, 78 U.S.App.D.C. 138 F.2d 934 We hold that in this case the knowledge of safety standards on the ......
-
Unitec Corporation v. Beatty Safway Scaffold Co. of Oregon, 19788.
...137 U.S. 348, 353, 11 S.Ct. 96, 34 L.Ed. 681 (1890); Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L.Ed. 487 (1878); Cohen v. Western Hotels, Inc., 276 F.2d 26 (9th Cir. 1960); Frank's Plastering Company v. Koenig, 341 F.2d 257, 260-261 (8th Cir. 1965); Krizak v. W. C. Brooks & Sons, Inc., 320 ......