Gerber v. Columbia Palace Corp.

• Decision Date: 12 July 1962
• Docket Number: No. 2982.,2982.
• Citation: 183 A.2d 398
• Parties: Raymond J. GERBER, Appellant, v. COLUMBIA PALACE CORP., Appellee.
• Court: D.C. Court of Appeals

Page 398

183 A.2d 398

Raymond J. GERBER, Appellant, v. COLUMBIA PALACE CORP., Appellee.

No. 2982.

Municipal. Court of Appeals for the District of Columbia.

Argued May 21, 1962.

Decided July 12, 1962.

J. E. Bindeman, Washington, D. C., with whom Dexter M. Kohn, Washington, D. C., was on the brief, for appellant.

Francis L. Casey, Jr., Washington, D. C., for appellee.

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

MYERS, Associate Judge.

Appellant brought this action for personal injuries arising out of a fall while leaving a theater one night through a side exit. The case was submitted to a jury and resulted in a verdict against him. He has appealed from the judgment thereon.

The record discloses that appellant followed his wife and daughter through a side exit consisting of three double doors leading out onto a platform on the street. Because the street at this point inclined southward, at the northern end of the landing there were two steps to the sidewalk, three steps at the middle, and four steps at the southern end. Appellant testified that as he followed his family down the steps at the northern end of the platform, he observed three or four steps at the southern extremity but did not look at the steps he was using. In descending he was thrown off balance when his foot hit the sidewalk instead of another step as he had expected, and he fell.

Appellant charges a number of errors during the trial. One was that the theater manager was allowed to testify that during the eleven years he had been there no other accident on these steps had been reported to him. Such evidence was admissible.¹

Appellant also contends that he was prejudiced by inconsistent rulings by the trial judge on the admissibility of expert testimony respecting what was considered by the expert, a civil and construction engineer, not to be good practice in the construction and maintenance of the platform and steps therefrom to the sidewalk. He did testify in detail as to the condition and structure of the platform and steps and that risers of different height, the omission of a handrail, and the absence of a light over the exit doors outside were not good practices. He was not allowed to state that it was not good practice to omit white lines painted on the platform and steps and signs inside warning of their condition. The basis for the denial was apparently because the pretrial order made no reference to such claim. Although we agree with the general requirement to restrict parties to the issues framed by the pretrial order, we do not believe a party must recite all testimony therein on those issues in order to avoid being precluded from offering such evidence at trial. However, we do believe that the trial judge, in the exercise of broad judicial discretion, would have been justified in rejecting all similar opinion evidence on another ground. "The rule is well established in this jurisdiction that where the trier of the facts is just as competent to consider and weigh evidence as is an expert and is just as qualified to draw conclusions therefrom, it is improper to use opinion evidence." St. Lewis v. Firestone, D.C.Mun.App., 130 A.2d 317, 319. The jurors heard the evidence and were shown six photographs of the side exit, platform and steps. They were as competent and qualified to determine whether the absence of any of these matters contributed as proximate cause of appellant's fall when he reached the sidewalk as an expert...