Hecht Co. v. Hohensee, 6557.

• Decision Date: 23 March 1936
• Docket Number: No. 6557.,6557.
• Citation: 83 F.2d 585,65 App. DC 328
• Parties: HECHT CO. v. HOHENSEE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

65 App. DC 328, 83 F.2d 585 (1936)

HECHT CO. v. HOHENSEE.

No. 6557.

United States Court of Appeals for the District of Columbia.

Decided March 23, 1936.

Morris Simon, Lawrence Koenigsberger, Eugene Young, and William H. Collins, all of Washington, D. C., for appellant.

Cornelius H. Doherty, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, GRONER, and STEPHENS, Associate Justices.

ROBB, Associate Justice.

Appeal from a judgment for the plaintiff in the Supreme Court of the District in an action for damages for personal injuries.

In his declaration plaintiff alleged that on February 5, 1934, he was walking on the sidewalk in front of premises owned by the defendant, Hecht Company, in which it operated a department store; that it was the duty of the defendant to keep the sidewalk in a reasonably safe condition so that persons lawfully using the same would not be injured; that, notwithstanding its duty in the premises, the defendant "cleared certain portions of the said sidewalk of the snow and ice which had accumulated thereon, placing the said ice and snow so removed into piles on the said sidewalk, permitting jagged pieces of frozen snow and ice to remain thereon, * * * by reason of which the plaintiff slipped and fell," sustaining severe injuries.

The Hecht Company filed two pleas, in one of which it denied the allegation of duty and its negligence; in the other it pleaded contributory negligence of the plaintiff.

Plaintiff, a taxi driver, testified that on the morning of February 5, 1934, he took passengers to the Hecht Company store. They asked to be discharged at the side, or easterly, entrance on F street (employees' entrance). He parked his car opposite that entrance, and, as he desired to purchase gloves, got out of the car, "and as I was going toward the store, toward the entrance there, there was ice piled up. And I was cautious. I saw the condition of it. But somehow I just slipped down. The sidewalk was icy and very rough, and when I slipped and fell, I fell quite hard." (Italics ours.) The portion of the sidewalk next to the building was cleared to a width of 4 or 5 feet, and either sawdust or gravel had been thrown on the cleared path. (The sidewalk was 20.65 feet in width.) Asked, "Where was the snow placed?" plaintiff replied: "That was on the part between the part that was cleared off and the edge of the pavement sidewalk." "There was plenty of snow in the street portion; * * * there was no pathway to the employees' entrance opposite which plaintiff had parked; there was a pathway to the main entrance; * * * There was some snow piled up real high between the street and the curb. * * * I don't know whether the snow sweepers had thrown it off; there was snow and ice everywhere." The snow in the street was more uneven than on the sidewalk, and the snow in the street was about level with the snow on the sidewalk. "The snow was twelve inches some places and sixteen inches and more at another; you can't say that the highest part was at one particular spot, because it was all uneven, there wasn't any particular spot that was more unlevel than the others; the general condition was that it was fourteen inches in one place, and then dropped down, and it was just about the same at the curb."

On cross-examination plaintiff testified: "I approached The Hecht Store from Seventh Street; as I came along there, there was plenty of snow and ice there, which I think extended all along F Street there; throughout my course of travel to The Hecht Store from Sixteenth Street, the snow was about the same, with the exception of some places where it was piled up more than in other places; * * * I know the sidewalk was cleared at the first entrance, the large entrance, on F Street of The Hecht Company. * * * There were quite a number of cars parked on the south side of F Street next to Hecht's Store."

The general superintendent of the Hecht Company was called for plaintiff and testified: "We have the porters clean the snow off the sidewalk around The Hecht Company."

The temperature for the period February 3d, 4th, and 5th, inclusive, ranged from 13° above to 43° above. There was "a very heavy snow" three or four days before the day of the accident.

At the close of plaintiff's evidence, the defendant moved for a directed verdict on the ground that no negligence had been shown and upon the further ground that plaintiff was guilty of contributory negligence. To the denial of this motion defendant objected and excepted. After introducing evidence tending to impeach the testimony of a witness for the plaintiff, the defendant repeated the motion for...