Hilleary v. Earle Restaurant, 1514-50.

• Decision Date: 31 December 1952
• Docket Number: No. 1514-50.,1514-50.
• Citation: 109 F. Supp. 829
• Parties: HILLEARY v. EARLE RESTAURANT, Inc., et al.
• Court: U.S. District Court — District of Columbia

109 F. Supp. 829

HILLEARY v. EARLE RESTAURANT, Inc., et al.

No. 1514-50.

United States District Court District of Columbia.

December 31, 1952.

Albert Brick and Samuel Intrater, Washington, D. C., for plaintiff.

Welch, Daily & Welch, Washington, D. C. (J. Harry Welch), Washington, D. C., for defendant, Earle Restaurant, Inc.

Hogan & Hartson, Washington, D. C., (Paul R. Connolly), Washington, D. C., for defendant, Stanley Co. of America.

KEECH, District Judge.

This case is before the court on motions for judgment notwithstanding the verdict or for a new trial, filed by both defendants following a verdict for the plaintiff.

Briefly stated, the facts are: On January 24, 1950, when the plaintiff, Mrs. Hilleary, with Mrs. Abbott and Mrs. Robinson, was leaving the Neptune Room, operated by the defendant Earle Restaurant, Inc., after lunching there, Mrs. Abbott slipped on the tiled entranceway adjacent to the sidewalk. Mrs. Robinson, who was in the middle of the group, tried to help Mrs. Abbott, on her left, and in "grabbing" at Mrs. Abbott, Mrs. Robinson struck Mrs. Hilleary, on her right, with her right elbow, causing Mrs. Hilleary to fall to the pavement and break her hip. Both Mrs. Abbott and Mrs. Robinson testified that after the accident they looked at the step and saw that it was moist or damp with muddy tracks. The official weather report for that day, made at the station at 24th and M Streets, N. W., indicates that there was .03 inches of rain between the hours of 3 and 6 a. m. and a "trace" between 6 and 7 a. m.

The doorway of the Neptune Room is recessed in the wall of the building, 30 inches back from the sidewalk. The area between the metal threshold and the sidewalk is paved with glazed ceramic tile. The threshold of the door is level, while the sidewalk slopes down hill. The east-west slope from the threshold to the sidewalk is negligible at the north end of the doorway, but at the south end the entrance slopes in a ratio of 1 inch to 10 inches, to compensate for the slope of the sidewalk. By reason of the combination of the two slopes, north to south and east to west, the middle area of the step has a dip or wavy depression.

The evidence showed that the doorway was constructed in its present form in 1939, when the present tenant leased the premises and they were remodelled for its purposes. The remodelling was done by the landlord, subject to approval by the tenant. The testimony was that the entrance was in 1950 and is at the present the same as it was constructed in 1939, except that the tile may have become smoother by wear over the years.

The plaintiff sued both the landlord, Stanley Company of America, and the tenant, Earle Restaurant, Inc., and recovered a verdict of $22,000 against both defendants.

The defendants base their motions on substantially the same grounds. Both contend that the verdict was not supported by substantial evidence; that it was contrary to the weight of the evidence; that the court erred in receiving evidence of other better materials available for use in entranceways, namely, so-called "nonskid tile"; that the court erred in instructing the jury; that the verdict was not unanimous and should not have been received by the court; and that the verdict is grossly excessive.

It is argued that there is no evidence that anything other than wetness of the tile caused Mrs. Abbott to slip; that she is the only witness who testified as to the cause of her slipping; and that the court's instruction that the jury must find for the defendants if it found Mrs. Abbott slipped because of the wetness, excluded from the jury's determination the only evidence as to the cause of her slipping and permitted the jury to speculate as to the cause of the accident.¹

When first questioned about the happening of the accident, Mrs. Abbott gave the following testimony:

"Q. Tell us what happened after you opened the door and walked out of the Earle Restaurant. A. As I got outside the door, on to the tile, I just felt my feet going from under me; they began to slip and I couldn't stop; it was as if I was on ice, and I began staggering to try to catch my balance, and then evidently when I hit that rough place in the pavement I lunged forward and tried to grab my sister to right myself.

"Q. Then what happened? A. She swung around to catch me and brushed against Nannie, I think.

"Q. And what happened to Nannie? A. Well, the first I knew—of course, it all was over in a minute, and I was thinking about myself, afraid I was falling, and then I saw Nannie lying sprawled on the pavement.

"Q. Can you tell us what caused you to slip? A. I really don't know. It was wet; I think I just slipped—it was like ice.

"The Court: Do you know or do you think?

"The Witness: What did you say?

"The Court: I understood you to say it was what you think. Do you know?

"The Witness: I would say it was wet, because at the time I didn't notice it, but after standing there waiting for the ambulance I did glance back and saw that it was wet and muddy."

On cross-examination, Mrs. Abbott was asked:

"Q. I say you could see footprints in the dampness on the tile? A. It was mud that had been left on by people's feet.

"Q. Was it dried mud or dirt mixed with water? A. Dirt mixed with water.

"Q. By trackage from a person's foot, you say, is that right? A. Yes, sir.

"Q. Did you look for your tracks? A. No, indeed, I didn't.

"Q. Did you see any tracks left by your feet as you slipped? A. I didn't notice it.

"Q. And the thing which caused you to fall was this wetness on the tile; do I understand your testimony to be that? A. I don't think I was asked that question, as to what caused me to fall.

"Q. Is that your testimony? A. What did you say?

"Q. Is that your testimony, I am asking of you now. A. You are asking me now?

"Q. Yes. A. Yes, I would say."

From a reading of the transcript of Mrs. Abbott's testimony as a whole, it is not unreasonable to conclude that the jury determined that, as she stated at the beginning of the direct examination, she did not actually know what caused her to fall, but that she did look back after the accident and saw that the tile was moist, a fact corroborated by Mrs. Robinson's testimony, and that on the basis of her observation of the dampness after the accident Mrs. Abbott concluded that was what caused her to fall. It is to be noted that Mrs. Abbott's first, spontaneous answer was that she did not know what caused her to fall, and that it was after being pressed by the court, and again by defense counsel on cross-examination, that she testified she "would say" she slipped because of the wetness or dampness of the tile. The jury may reasonably have determined that Mrs. Abbott was merely testifying as to her opinion as to what caused her to slip, and rejected that opinion.

The court's charge excluded the existence of wetness or dampness at the time of the accident as a possible act of negligence by either of the defendants, as to Earle because of the lack of evidence as to notice, and as to Stanley Company because it could not be held liable on the basis of any negligent maintenance. This instruction did not eliminate the evidence of wetness or dampness as a possible proximate cause of the accident, but removed it from the jury's consideration as a proximate cause for which the defendants could be held responsible. The jury was clearly instructed that in order to find for the plaintiff it must find that Mrs. Abbott fell because of some act of negligence on the part of the defendants, either the tile surface, the grade, or a combination thereof. It was further instructed that there may be concurring proximate causes, and that a defendant whose negligent act concurs in proximately causing the harm is liable to the plaintiff for the whole amount of his damages. Although the charge included no instruction dealing specifically with the defendants' liability if wetness should be found to be a concurring proximate cause, the jury, in order to find for the plaintiff, had to find that the accident would not have occurred but for some negligent act by each of the defendants, other than a wet or damp condition; and under such circumstances, the mere fact that wetness might have shared in causing the accident would not relieve the defendants of liability.

The court's instructions concerning wetness or dampness were more favorable than the defendants were entitled to. The question might have been submitted to the jury whether it was negligence on the part of the defendants to construct and maintain an entrance paved with glazed ceramic tile or with a peculiar angle immediately adjacent to the sidewalk and open to the weather, where both defendants should have known it would be likely to become wet or damp and slippery when wet.

As the case went to the jury, the evidence of wetness or dampness, without refutation thereof, was favorable to the defendants in that the jury were instructed that if the accident was caused by wetness or dampness their verdict should be for the defendants.

We come then to the question whether there was any evidence other than wetness on which the jury might base a finding as to what caused Mrs. Abbott to slip. Mrs. Robinson testified that the tile sloped at quite a degree toward the sidewalk and was slippery because it was wet, indicating with her hands the degree of slope and stating that the photographs received in evidence accurately portrayed the degree of slope. Mrs. Abbott also testified that the condition of the entrance, other than wetness, at the time of the accident was the same as it appeared in the photographs. The witness Roberts, who testified as a tile expert, stated that the entrance is paved with plain ceramic tile, containing no non-skid material, that the angle of the entrance floor is as portrayed in the photographs, that the pavement of the entrance has a pitch from the doorway to the sidewalk of one inch to each 10 inches, with a "low spot"...