Hecht Co. v. McLaughlin

• Decision Date: 25 February 1954
• Docket Number: 11756.,No. 11755,11755
• Citation: 93 US App. DC 382,214 F.2d 212
• Parties: HECHT CO. v. McLAUGHLIN. HECHT CO. v. ELLISON BRONZE CO., Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 382, 214 F.2d 212 (1954)

HECHT CO. v. McLAUGHLIN.

HECHT CO. v. ELLISON BRONZE CO., Inc.

Nos. 11755, 11756.

United States Court of Appeals District of Columbia Circuit.

Argued December 2, 1953.

Decided February 25, 1954.

Mr. Richard W. Galiher, Washington, D. C., with whom Messrs. William E. Stewart, Jr., and Julian H. Reis, Washington, D. C., were on the brief, for appellant.

Mr. John J. Sirica, Washington, D. C., for appellee McLaughlin.

Mr. Lloyd Fletcher, Jr., Washington, D. C., with whom Mr. Paul B. Cromelin, Washington, D. C., was on the brief, for appellee Ellison Bronze Co.

Before WILBUR K. MILLER, BAZELON and FAHY, Circuit Judges.

FAHY, Circuit Judge.

No. 11755. The Hecht Company appeals from a judgment in favor of appellee Julia McLaughlin, plaintiff below, a customer of its department store. She was awarded damages for injuries suffered in circumstances attributed by the jury to the negligence of the Company.

There was evidence the plaintiff in seeking to leave the store came from the Men's Department into a lobby or vestibule from which three doors lead to the street. These doors are used interchangeably for exit and entrance, without designation for either one or the other use. Each door is so constructed and installed that when pulled open from the outside about one-third of its total width projects inward. Thus, unlike an ordinary door, it does not swing entirely in one direction. There was no evidence of guard rails or bars extending out from the wall where the doors were located to aid in protecting against the inward projection.

There was evidence that this "balanced" type of door, due to less air pressure, facilitates ease of manipulation and accommodates a more rapid flow of people. There was considerable evidence as to the use of these doors in a large number of establishments, and their approval by public authorities in the District of Columbia and the states. There was also evidence that plans for The Hecht Company building, including this type of door and prepared by architects, were examined and approved by public authorities of the District of Columbia before the building permit was issued, and that the doors had been in use for some years without mishap.

Plaintiff testified that as she came toward the doors to leave the store she saw a lady approaching from the outside. Plaintiff sought to walk beyond the door nearest to herself, which she observed was about to be used by the approaching lady, and make her exit through the next one. Before she could do so she was struck by the inward-projecting edge of the door pulled open by the incoming lady.

The Company first contends that the trial court erred in denying its motion for a directed verdict at the close of all the evidence.

We agree with the court below that the evidence above outlined raised an issue of fact for the jury as to whether the Company had exercised reasonable care to prevent injury to its customers. The question was not one of law for the court. On this aspect of the case the factual issue was fairly submitted to the jury in the court's charge, set forth in the margin.¹

We think, however, that error occurred in the handling of problems growing out of a building regulation admitted in evidence. The regulation is headed "Aisles and Corridors" and reads in part, "Doors shall not swing into passageways".² The court, apparently holding that the regulation applied to the situation presented, instructed the jury that its violation by the Company would be negligence as matter of law. Elsewhere, as we have seen, the court submitted to the jury on the whole evidence the ultimate question of negligence; but if this particular instruction was erroneous, or if evidence material on the question of admissibility of the regulation was excluded, a new trial should be authorized.

Discussing first the question of application and, therefore, of admissibility of the regulation, the Company offered, and the court rejected, testimony of a liaison officer of the District of Columbia Building Department that Article 601-09, entitled "Aisles and Corridors", n. 2, supra, did not apply to the situation before the court. We think this evidence should have been heard. As we have seen, the installation of the door at this place had been approved by the Department of Building Inspection, both before a permit was issued and upon inspection after installation. There was evidence that installations of a similar character had been made in the District of Columbia at Georgetown University Hospital, Woodward & Lothrop's Department Store, Lansburgh's Department Store, the Statler Hotel, and elsewhere. As noted above, the door is not the ordinary type which swings in the usual sense. Uncertainty accordingly arises as to whether for this or any other reason the "Aisles and Corridors" Article applies. In these circumstances the expert or administrative view would be material and helpful. In Wright v. Wardman, 55 App.D.C. 318, 5 F.2d 380, it is held that where the language of an ordinance or regulation is doubtful and open to different interpretations the construction placed upon it by the department charged with its execution will generally control. The court approved this rule in a case turning upon the meaning of zoning regulations having to do with the type of erection which required the consent of adjoining property owners before issuance of a permit. The court said the construction adopted by the authorities should be adhered to. See, also, Coombe v. United States, 55 App.D.C. 190, 3 F.2d 714. An analogy is also found in the reception of expert testimony to aid the court in the interpretation of a city ordinance when some of its language appeared to have a special meaning. City of Chicago v. Holden, 194 Ill. 213, 62 N.E. 550. A further analogy is the use of such testimony in aid of interpreting technical words or phrases in documents. See Seymour v. Osborne, 11 Wall. 516, 546, 78 U.S. 516, 546, 20 L.Ed. 33; Phillips Petroleum Co. v. Payne Oil Corporation, 10 Cir., 146 F.2d 546; 7 Wigmore, Evidence § 1955 (3d ed.). And while the court should interpret an ordinance without the aid of expert testimony when there is no ambiguity, Montgomery Ward & Co. v. Snuggins, 8 Cir., 103 F.2d 458, 460-462, here ambiguity appears.

The alternative to holding that the trial court should have received the expert testimony is for us to rule on the present record whether or not the regulation applied and was admissible.³ This would be unwise without the benefit of available relevant evidence, followed by a ruling by the trial judge after hearing it.

Good practice would indicate that the evidence should be heard out of the presence of the jury, its quantity being held within reasonable limits in the exercise of a sound discretion. The expert or administrative interpretation which might be shown by such evidence is not binding on the court. It is to be received to aid the court in resolving the ambiguity or uncertainty above referred to, and thus in determining whether or not the regulation applies and is admissible.⁴

There remains the question whether violation of such a regulation, assuming it has been properly admitted in evidence, constitutes negligence per se. This court said in Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370, certiorari denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080, that violation of a safety measure constitutes negligence. That case, however, involved a simple act contrary to the terms of a clear regulation that no person should allow a motor vehicle he operated to stand unattended on any street without having locked the switch. A truck had been left on the street unattended, with the ignition unlocked and the key in the switch. Accordingly, this court applied the general rule that breach of an ordinance intended to promote safety is negligence. This general rule, however, was held inapplicable in the subsequent case of Peigh v. Baltimore & O. R. Co....