District of Columbia v. Hickey, 2251.

• Citation: 150 A.2d 463
• Decision Date: 14 April 1959
• Docket Number: No. 2252.,No. 2251.,No. 2319.,2251.,2252.,2319.
• Parties: DISTRICT OF COLUMBIA, a Municipal Corporation, Appellant, v. Helen B. HICKEY and Kenny Construction Co., Inc., Appellees. KENNY CONSTRUCTION CO., Inc., Appellant, v. Helen B. HICKEY, Appellee. DISTRICT OF COLUMBIA, a Municipal Corporation, Appellant, v. GREENWAY, INC., Appellee.
• Court: Court of Appeals of Columbia District

150 A.2d 463

DISTRICT OF COLUMBIA, a Municipal Corporation, Appellant, v. Helen B. HICKEY and Kenny Construction Co., Inc., Appellees.

KENNY CONSTRUCTION CO., Inc., Appellant, v. Helen B. HICKEY, Appellee.

DISTRICT OF COLUMBIA, a Municipal Corporation, Appellant, v. GREENWAY, INC., Appellee.

No. 2251.

No. 2252.

No. 2319.

Municipal Court of Appeals for the District of Columbia.

Argued December 15, 1958.

Decided April 14, 1959.

COPYRIGHT MATERIAL OMITTED

Hubert B. Pair, Asst. Corp. Counsel, Washington, D. C., with whom Chester H. Gray, Corp. Counsel, and Milton D. Korman, Principal Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellant in No. 2251 and No. 2319.

John F. Mahoney, Jr., Washington, D. C., with whom Charles E. Pledger, Jr., Washington, D. C., was on the brief, for appellant in No. 2252 and for appellee Kenny Const. Co. in No. 2251.

Rex K. Nelson, Washington, D. C., with whom Eugene X. Murphy, Washington, D. C., was on the brief, for appellee Hickey in No. 2251 and No. 2252.

Denver H. Graham, Washington, D. C., with whom Laurence T. Scott, Washington, D. C., was on the brief, for appellee Greenway, Inc., in No. 2319.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

The District of Columbia engaged Kenny Construction Company to do certain construction work which required construction of a temporary board sidewalk. This boardwalk was in close proximity to an apartment building owned by Greenway, Inc., and managed by Cafritz Company. Appurtenant to the building was a window well covered by a grating of iron bars. This window well extended into public space owned by the District. Mrs. Hickey, the appellee here, was walking on the boardwalk when she came to a place where several boards were missing, and she stepped from the walk into the adjoining public space. In doing so she stepped upon the grating covering the window well. As she stepped on the grating, her foot and leg went down into a space where one of the iron bars was missing. As a result she was injured and brought this action for damages against Greenway, Cafritz, Kenny and the District. The District cross-claimed against Greenway and Kenny for any judgment that might go against it; and Kenny cross-claimed against the District.

At an early stage in the trial, Cafritz was dismissed from the action, and at the close of plaintiff's case a directed verdict was granted in favor of Greenway. The jury awarded a verdict for Mrs. Hickey against both Kenny and the District. As will be discussed later in more detail, the trial court found against all cross-claims. The District has appealed from the judgment against it in favor of Mrs. Hickey and from the judgments against it on its cross-claims against Kenny and Greenway. Kenny has appealed from the judgment against it in favor of Mrs. Hickey.

We first consider the appeals from the judgment for Mrs. Hickey. The District contends that the verdict of the jury, whether based on negligence of the District in maintenance of the boardwalk or negligence in maintenance of the grating over the window well, was unsupported by the evidence. Kenny contends that it was entitled to a directed verdict at the close of all the evidence, because the evidence failed to show a causal connection between any negligence on its part and the injuries suffered by Mrs. Hickey, and because the court should have ruled as a matter of law that Mrs. Hickey was contributorily negligent.

So far as Mrs. Hickey's judgment is concerned, the appeals of the District and Kenny in substance are that the evidence did not warrant submission of the case to the jury and that directed verdicts should have been entered in their favor. Our first question is whether such relief was properly sought in the trial court, because "failure to interpose a motion for a directed verdict at the close of all the testimony and secure a ruling thereon precludes a party from questioning on appeal the sufficiency of the evidence." Krupsaw v. W. T. Cowan, Inc., D.C.Mun.App., 61 A.2d 624, 626.

The record shows that at the close of plaintiff's evidence both the District and Kenny moved for directed verdicts. Those motions were denied and the District and Kenny proceeded to offer evidence. Any benefits from those motions were thus waived. The record does not specifically show that either the District or Kenny made a motion for a directed verdict at the close of all the evidence. The only reference to such a motion by the District is in the transcript of the hearing on the District's motion for judgment n. o. v. Counsel for Mrs. Hickey there stated that no motion for directed verdict had been made by the District. The attorney for the District asserted that such a motion had been made, not by him but, in his absence, by his associate and in the absence of a reporter. The trial court made no statement or ruling on this factual dispute but thereafter denied the motion for judgment n. o. v. without stating its reasons...