Crosby v. Meredith

• Decision Date: 20 February 1962
• Docket Number: No. 8429.,8429.
• Citation: 300 F.2d 323
• Parties: Margaret CROSBY, Appellant, v. Peter M. MEREDITH, trading as Meredith Construction Company, and United States of America, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

300 F.2d 323 (1962)

Margaret CROSBY, Appellant, v. Peter M. MEREDITH, trading as Meredith Construction Company, and United States of America, Appellees.

No. 8429.

United States Court of Appeals Fourth Circuit.

Argued October 24, 1961.

Decided February 20, 1962.

Israel Steingold, Norfolk, Va. (Steingold, Steingold, Chovitz & Boyce, Norfolk, Va., on brief), for appellant.

Allan S. Reynolds, Norfolk, Va., for appellee Meredith Const. Co.

Roger T. Williams, Asst. U. S. Atty., Richmond, Va. (C. V. Spratley, Jr., U. S. Atty., Norfolk, Va., on brief), for appellee United States.

Before BOREMAN and BELL, Circuit Judges, and MARTIN, District Judge.

J. SPENCER BELL, Circuit Judge.

Plaintiff brought civil action against the defendant Meredith Construction Company and the United States for personal injuries. At the conclusion of the plaintiff's evidence, the Court sustained the corporate defendant's motion for a directed verdict and also dismissed the case against the Government.

Plaintiff, wife of a non-commissioned officer in the Army, was attending a weekly Bingo game at an N. C. O. Club at Fort Story, Virginia, near where she and her husband resided. The club house was undergoing repairs being made by the Meredith Construction Company. A ditch three feet wide and two feet deep had been dug in front of the main entrance. A temporary ramp had been constructed over this ditch. It was made of four new planks, two by sixes or two by eights, thirty-six inches long and sloping at a fifteen degree angle. The top of the ramp was fastened to the door sill about one and five eighths inches below the level of the floor. The planking ran lengthwise the ramp, there was no hand rail and no cross pieces on the surface to offer a foothold. The ramp was outside the building, and although it was covered by an awning there was testimony that the night was misty and the surface of the ramp was damp. Sergeant Twiford, the N. C. O. in charge of the premises, testified: "I believe the ramp was wet, sir. I wouldn't say soaking wet. I'd say damp, because it had been drizzly. It's a small porch out over the ramp and the patio." When the game terminated for the evening, some one hundred guests left the building at approximately the same time. The plaintiff testified that she slipped when she stepped on the ramp and fell face forward onto the sidewalk in front of the club, injuring herself seriously. She did not see a "watch your step" sign posted on the doors, which had been propped open as the crowd left.

The Government having continued using the building during repairs, the two defendants would be liable to the plaintiff for their negligent acts as joint tort feasors. The liability of the defendants must be measured by the law of Virginia. With respect to the United States, 28 U.S.C. 1346(b) expressly provides that the tort liability of the United States is to be determined "* * * In accordance with the law of the place where the act or omission occurred". The fact that the act or omission occurred on federal property does not change the rule, since the property lies within the bounds of the State of Virginia. Olson v. United States, 175 F.2d 510, at p. 512 (8 Cir. 1949), Duff v. United States, 171 F.2d 846, at p. 851 (4 Cir. 1949).

The trial judge nonsuited the plaintiff at the conclusion of her evidence and this ruling raises the sole question for this Court: Was there sufficient evidence to go to the jury on the negligence of these defendants? We think there was under the Virginia law. The case of Charles v. Commonwealth Motors, Inc., 195 Va. 576, 79 S.E.2d 594 (1954) is in point. There an invitee slipped and fell upon an inclined Terrazzo ramp leading from the doorway into the sales room of defendant automobile company. The trial court directed a verdict at the conclusion of the evidence and the Supreme Court of Appeals reversed. In doing so, the Court said: "Our inquiry is whether reasonable minds could differ in regard to the facts and the proper inferences to be drawn therefrom. * * * While the defendant was not an insurer of her safety, it owed her the duty to use ordinary care to have its premises reasonably safe for her visit" (79 S.E.2d at pp. 594-595). There, too, the defendant contended that it is not sufficient for the plaintiff simply to show that she slipped, it is necessary to show how. To this the Court replied: "Here, however, the plaintiff's evidence did show how and why the accident occurred. It showed, or at least tended to show, that it occurred because of the slippery condition of the surface of the sloping ramp upon which the plaintiff was invited to walk", (at p. 596).

In the instant case, the defendants had invited the public to use the premises of the club. Whether or not those premises were in safe condition for public use under the circumstances was a question of fact upon which we feel reasonable men could differ. It is true that the ramp was solidly built, but this does not overcome the possible inference that the ramp as constructed offered a potential danger to users. Reasonable men may differ as to whether unpainted lumber is slippery when damp and therefore, whether a proper construction of the ramp would have included hand rails and cross pieces in order to give more stability to persons using the ramp.

The plaintiff testified that when her foot touched the ramp she slipped. The Sergeant in charge testified that the ramp was damp. This it seems to us is sufficient evidence from which the jury could draw the inference that the slickness of the surface had caused the fall. The degree of incline, the absence of the safeguards heretofore mentioned, the fact that the top of the ramp was not flush with the floor, are factors which should be weighed in determining whether the premises were dangerous. The inferences which we say could be drawn from the facts here in evidence are supported by the further testimony that others had slipped on the same ramp. It would be the province of the jury to determine if the circumstances were sufficiently different to give no probative value to those incidents. Where there is substantial evidence in support of the plaintiff's case, the judge may not direct a verdict against him even though he may feel that the weight is on the other side. McCracken v. Richmond, Fredericksburg and Potomac R. Co., 240 F.2d 484 (4 Cir. 1957).

For these reasons, the case is reversed and remanded.

Reversed.

BOREMAN, Circuit Judge (dissenting).

I respectfully disagree with the majority view that the District Court erred in taking the case from the jury because of insufficiency of evidence of negligence on the part of the defendants.

The ramp was clearly described, by the one who constructed it, as made of four planks each 8 inches wide, 2 inches thick and 38 inches long, placed side by side with no spacing and tied together by planks, each 2 × 4 inches, on the under side. The 2 × 8's were fastened to the building immediately under the 1 5/8 inch sill at the club doorway and, at the opposite end, were beveled at an angle where they met flush with the cement. "The distance from the threshold of the entrance door of said club to the ground was six inches from the threshold to cement walkway and there was a one and five-eighths inch drop from the threshold to the platform."

The evidence disclosed that the ramp was constructed of new, unpainted lumber; it was solid and steady and one witness stated that a tank could have run across it. It was covered over and protected by a roof or canopy. The ramp and doorway were well lighted. The doorman testified that there were two warning ("Watch Your Step") signs on the club house door although the plaintiff denied that she saw any such sign. There were no foreign substances or debris on the ramp although a light drizzling rain had been falling and the surface of the ramp was described as "damp". It is not unreasonable to conclude that patrons, alighting from their cars in the club parking area, accumulated water or moisture on the soles of their shoes and then walked across the ramp as they entered the club. In this manner the surface of the ramp may have become damp but no one testified that such surface was directly exposed to falling rain. The plaintiff stated that she walked over the ramp and entered the club through the same doorway by which she left but noticed nothing unusual. It had been raining before she entered.

Plaintiff made no statement in her testimony concerning any defect in the ramp or entrance way; indeed, she made no statement whatsoever as to the condition of the ramp.¹ The evidence discloses that there were two rubber mats, each about one-half inch thick, placed end to end over the concrete at the lower end of the ramp, obviously to provide a cushioned surface over which the patrons could walk as they approached the club from the direction of the parking area. There is not even a suggestion of negligence in the use or placing of these mats although the plaintiff testified that she fell after she tripped on the one at the end of the ramp.

It was shown in quite hazy fashion that four or five persons had slipped on the ramp on occasions prior to the night...