Safeway Stores v. West

• Decision Date: 23 January 1950
• Docket Number: No. 10164.,10164.
• Citation: 86 US App. DC 99,180 F.2d 25
• Parties: SAFEWAY STORES, Inc. v. WEST et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

86 US App. DC 99, 180 F.2d 25 (1950)

SAFEWAY STORES, Inc. v. WEST et al.

No. 10164.

United States Court of Appeals District of Columbia Circuit.

Argued November 17, 1949.

Decided January 23, 1950.

Writ of Certiorari Denied May 8, 1950.

Mr. Cornelius H. Doherty, Washington, D. C., for appellant.

Mr. Austin F. Canfield, Washington, D. C., with whom Messrs. William T. Hannan and Ralph F. Berlow, Washington, D. C., were on the brief, for appellees. Mr. Lewis Doby, Washington, D. C., also entered an appearance for appellees.

Before CLARK, WASHINGTON, and BAZELON, Circuit Judges.

Writ of Certiorari Denied May 8, 1950. See 70 S.Ct. 840.

CLARK, Circuit Judge.

Plaintiff-appellee was a regular customer of appellant's store on Montello Avenue, N. E. On the occasion of the accident in question plaintiff, as was her custom, went to the store about nine o'clock in the morning to do her day's shopping. As she approached the door of the store another shopper was coming out pushing a baby before her in a stroller. Plaintiff stepped down a step to enable the woman to pass and was holding the door open for her passage. The door opened outward. A metal coil spring was attached to the door. This spring broke and struck plaintiff in the right eye. She fainted and fell to the ground and was straightway sent to the hospital. As a result of the accident she lost the sight of her eye.

Plaintiff sued, her pleading being in the alternative (1) alleging that the case fell within the doctrine of res ipsa loquitur, (2) alleging specific negligence.

After pre-trial the allegation as to specific negligence was tacitly abandoned and plaintiff's case was tried on the theory of res ipsa. The court instructed on the theory of res ipsa and declined certain instructions requested by defendant. Plaintiff's counsel had avowed abandonment of specific negligence in open court and his intention to rely upon the theory of res ipsa loquitur.

Appellant (defendant below) now stoutly maintains that the facts of this case did not put it within the doctrine of res ipsa loquitur. Attention is directed to the language of this court in Washington Loan and Trust Co. v. Hickey, 1943, 78 U.S.App.D.C. 59, 61, 137 F.2d 677, 679, where the appellant made substantially the same contentions that are made in this case and raised by this appellant. This Court said: "Appellant urges that the case is not within the principle of res ipsa loquitur. * * * `The phrase is nothing but a picturesque way of describing a balance of probability on a question of fact on which little evidence either way has been presented.' The principle behind the phrase is one of inclusion, not exclusion. A plaintiff whose case comes within the principle is entitled to go to the jury, but no plaintiff who makes a probable case is disentitled to go to the jury by the fact that his case does not come within it or goes beyond it. The principle in question is simply that when the cause of an accident is (1) known, (2) in the defendant's control, and (3)...