Rutherford v. United States, Civ. No. 3294.

• Decision Date: 16 October 1950
• Docket Number: Civ. No. 3294.
• Citation: 93 F. Supp. 772
• Parties: RUTHERFORD v. UNITED STATES.
• Court: U.S. District Court — District of Wyoming

93 F. Supp. 772

RUTHERFORD v. UNITED STATES.

Civ. No. 3294.

United States District Court D. Wyoming.

October 16, 1950.

H. Glenn Kinsley and James Munro, Sheridan, Wyo., for plaintiff.

J. J. Hickey, U. S. Atty., and John S. Miller, Asst. U. S. Atty., of Cheyenne, Wyo., for defendant.

T. BLAKE KENNEDY, District Judge.

The plaintiff brings this action under Title 28, Sections 1346(b) and 2671 to 2680, inclusive, commonly known as the Federal Tort Claims Act. The claim is for damages alleged to have been sustained by plaintiff in the U. S. Post Office Building at Sheridan, Wyoming, growing out of an injury which took place in a revolving door which is alleged to have been maintained in an unsafe and dangerous condition. Issue was joined by the defendant through an answer in which all claims of negligence were denied, contributory negligence alleged on the part of the plaintiff, and an additional defense that the injury was caused on account of a third party having caused the door to revolve rapidly and strike the plaintiff, thereby causing the injuries complained of.

The case was tried to the Court without the intervention of a jury in conformity with the provisions of the tort claims act at its Sheridan August Term, 1950. Owing to the fact that one of the witnesses for the defendant who had been subpoenaed was ill and could not attend, it was stipulated in order to avoid the possibility of a continuance of the trial that the deposition of said witness should be taken at a later date and submitted with the other evidence, upon the submission of which, the case would be taken under advisement by the Court and trial briefs submitted as to the law which should govern the case.

Upon examination of these trial briefs it appears that counsel have been eminently fair and industrious in their endeavor to enlighten the Court, as both briefs contain many citations of identical authorities. Evidently the laws concerning revolving doors in which accidents have occurred are not altogether in harmony but it seems to be the general trend of all the cases that each case must depend largely upon its own facts and circumstances and that such a case usually involves facts which should be submitted to the jury for determination.

The Court is advised that there are no revolving door cases which have been decided by the Wyoming courts. The general law concerning the relative duties of a storekeeper, which would be applicable to a defendant maintaining a post office, are said to be that a storekeeper is not an insurer of safety of a customer shopping in a store, but that in the relative position of invitor and invitee the law demands of the invitor the exercise of ordinary care under the attendant facts and circumstances. Dudley v. Montgomery Ward & Co., 64 Wyo. 357, 192 P.2d 617.

Two interesting cases by the Supreme Judicial Court of Massachusetts are cited as Buzzell v. R. H. White Co., 220 Mass. 129, 107 N.E. 385, and Norton v. Chandler & Co., 221 Mass. 99, 108 N.E. 897. Both were revolving door cases. In the first case a directed verdict for the defendant was approved, and in the second case, submitted upon an agreed statement of facts, a verdict by the jury for plaintiff was approved. Curiously enough, the two opinions seem to have been written by the same judge. The difference in the cases, when analyzed, seems to have been that in the first case the evidence tended to prove that the strips placed upon the door were to prevent the passage of air but not to retard the swing of the door, while in the second case the proofs showed that the friction strips were placed there to control the speed of the door in its revolutions and that under these circumstances, as to whether these so-called strips were maintained in a proper condition, was a question of fact to be submitted to the jury. Therefore, when the jury had spoken on the alleged negligence of the type alleged it was within their function and to be approved by the Court. At page 898 of 221 Mass., at page 898 of 108 N.E. in the second case the Court analyzes the situation in this interesting manner: "There was evidence that as the plaintiff was going through the revolving door into the store a man was going out of the store through the revolving door, on the other side of it; that the man was in a hurry, and `went out just like anybody that is in a hurry.' If the action of this man who was going out was the immediate cause of the revolving door's spinning around and unexpectedly hitting plaintiff in the back, the connection between the defendant's negligence and the accident to the plaintiff was not necessarily broken thereby. That a customer should go out through the revolving door in a hurry and so set it spinning was, or might have been found to be, something which the defendant ought reasonably to have anticipated. If that was so, or was found to be so, the connection between the two was not broken."

As to the suggestion that the plaintiff may have been guilty of negligence in not taking hold of the brass railings across each wing of the door, the Court later in opinion on the same page says: "Even if on this evidence the jury were not justified in finding that she did have hold of the railing, we are of opinion that they could find that she was in the exercise of due care."

In Rathman v. First American Bank & Trust Co., 73 Ohio App. 283, 55 N.E.2d 865, a revolving door case, it is said at page 866: "It is apparent that those who see fit to install and maintain such doors for ingress and egress of their patrons to their places of business must be charged with knowledge that the extremely young and the aged, the weak and the strong, the well and the sick, will use them for the purpose for which they are obviously designed. Such being the case, those responsible for their maintenance must be held to an obligation to use that care in such maintenance which a reasonably prudent person is accustomed to use under like circumstances."

In Hansen v. Henrici's, Inc., 319 Ill.App. 458, 49 N.E.2d 737, the Court says at page 739:

"From the evidence the jury could reasonably find that the door (either through fault of construction or maintenance) was in a condition in which it revolved around the pivot unretarded by friction tending to lessen its speed. The jury could reasonably find the door defective in this respect." and

"We much doubt whether the manifold problems arising out of the doctrine of proximate cause can be solved by any metaphysical formula or made easier to solve by changes of nomenclature. Whether we call the cause `proximate', `legal' or `direct' matters little. It matters much that legal liability for bringing to pass that which harms another should be placed on the right person. Here, it seems facts recited show this plaintiff entirely free from any negligence tending to bring about his own injury. The young men who, in haste and hurry, gave the push to the door which put it in motion at a dangerous speed, were, of course, responsible. Whether the defendant in the construction and maintenance of this door was also at fault was, we hold, a question for the jury to decide. Defendant invited plaintiff to its restaurant. The business was managed and controlled by it. Upon it was the duty of seeing to it that the ways of ingress and egress to its place of business were reasonably safe. The evidence shows one of the purposes of the strips of rubber and felt was that by contact with the door at the floor, at the top and on the sides of the several compartments,...