Martin v. United States

• Decision Date: 30 June 1955
• Docket Number: No. 12424.,12424.
• Citation: 225 F.2d 945,96 US App. DC 294
• Parties: Annie M. MARTIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

96 US App. DC 294, 225 F.2d 945 (1955)

Annie M. MARTIN, Appellant, v. UNITED STATES of America, Appellee.

No. 12424.

United States Court of Appeals District of Columbia Circuit.

Argued March 23, 1955.

Decided June 30, 1955.

COPYRIGHT MATERIAL OMITTED

Mr. Stanley B. Frosh, Washington, D. C., for appellant.

Mr. Samuel J. L'Hommedieu, Jr., Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll and Robert L. Toomey, Asst. U. S. Attys., were on the brief, for appellee.

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

WILBUR K. MILLER, Circuit Judge.

In the afternoon of August 25, 1950, the appellant, Annie M. Martin, her twelve-year-old granddaughter and two other girls of that age were on the Washington Monument grounds. They were tossing a ball to one another and the appellant, in attempting to catch it, stepped backward onto a manhole cover. The cover tilted and her left leg plunged its full length into the manhole, the other leg remaining on the surface.

The appellant brought this suit in the United States District Court for the District of Columbia under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., seeking damages from the United States for the injuries she sustained. After hearing proof, the trial judge made findings of fact and reached conclusions of law,¹ pursuant to which he dismissed the complaint. This appeal resulted.

First, the appellant says the district judge erred in concluding as a matter of law that the Government's only duty was to warn her of dangers known to it. She says the United States was under a duty to maintain the Monument grounds in a reasonably safe condition, and to warn or protect her not only against known dangers but also against those which could have been discovered by the exercise of ordinary care. Thus the appellant's argument is that the occupier of land owes the same duty to a licensee by invitation — a gratuitous licensee who enters for his own benefit or pleasure — which he owes to a "mutual advantage" invitee.²

Unlike some jurisdictions, we have distinguished between a mutual advantage invitee and a gratuitous invitee in regard to the duty owed to them by the occupier of land. Radio Cab v. Houser, 1942, 76 U.S.App.D.C. 35, 128 F.2d 604; Gleason v. Academy of the Holy Cross, 1948, 83 U.S.App.D.C. 253, 168 F.2d 561; Arthur v. Standard Engineering Co., 1951, 89 U.S.App.D.C. 399, 193 F.2d 903, 32 A.L.R.2d 408; Firfer v. United States, 1953, 93 U.S.App.D.C. 216, 208 F.2d 524.

But, for the purposes of decision here, the distinction is unimportant. For, had the appellant been in the role of a favored mutual advantage invitee, she still could not recover unless it appeared from a preponderance of the evidence that her injury was caused by the Government's active negligence, or by an unsafe condition of which it had actual or constructive notice. F. W. Woolworth Co. v. Williams, 1930, 59 App.D.C. 347, 41 F.2d 970; Selby v. S. Kann Sons Co., 1934, 64 App.D.C. 36, 72 F.2d 853; Brodsky v. Safeway Stores, 1945, 80 U.S.App.D.C. 301, 152 F.2d 677; Doctors Hospital v. Badgley, 1946, 81 U.S. App.D.C. 171, 156 F.2d 569.

The appellant does not charge the United States with active negligence. There was no indication of actual notice to the appellee that the manhole cover, which had been bolted down in 1945, had become insecure. The district judge found no proof that the cover had been loose long enough before the accident to charge the Government with constructive notice of its condition, and so found as a fact that it had no such notice. The findings of fact were supported by the evidence and are therefore not clearly erroneous and cannot be disturbed on appeal. From them, the trial judge correctly concluded there was no liability.

It is also argued that the court erred in holding res ipsa loquitur did not apply. Though there is serious doubt as to the existence of all the factual elements necessary to bring that doctrine into play,³ we need not decide whether it actually did apply. For, if it did, the appellant would be in no better position.

Res ipsa simply means that there arises from the circumstances of the accident an inference of negligence, which is not a presumption but a mere mechanical device that requires the trier of fact — whether judge or jury — to consider the evidence to see whether its preponderance shows the defendant's negligence. The inference, even standing alone, may be rejected by the trier of fact.

These principles are supported by decisions of this court and the Supreme Court. We said in F. W. Woolworth Co. v. Williams, supra, 59 App. D.C. at page 348, 41 F.2d at page 971:

"The burden of proving defendant\'s negligence is upon the plaintiff. The mere happening of the accident does not shift to the defendant the burden of establishing that the accident did not occur through its negligence, nor does it create a presumption of negligence. On the contrary, the legal presumption is that reasonable care was exercised by the defendant. * * *"

In Underwood v. Capital Transit Co., 1950, 87 U.S.App.D.C. 68, 69-70, 183 F.2d 822, 823, we said:

"The doctrine of res ipsa loquitur, when applicable, does no more than establish a prima facie case based on an inference by virtue of which the plaintiff is enabled to escape the possibility of having the court direct a verdict against him. But the mere fact that the inference exists in contemplation of law as a mechanical device to take the case to the jury does not compel its acceptance by the triers of fact. They are at liberty to decide for themselves whether the preponderance is with the plaintiff even where there is no evidence to countervail the inference. * * *"

The Supreme Court said in Sweeney v. Erving, 1913, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815:

"In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that the

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