SS Kresge Co. v. Kenney, 6629.

• Decision Date: 17 August 1936
• Docket Number: No. 6629.,6629.
• Parties: S. S. KRESGE CO. v. KENNEY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 274, 86 F.2d 651 (1936)

S. S. KRESGE CO. v. KENNEY.

No. 6629.

United States Court of Appeals for the District of Columbia.

Decided August 17, 1936.

Petition for Rehearing Denied December 2, 1936.

Walter C. Clephane, J. Wilmer Latimer, and Gilbert L. Hall, all of Washington, D. C., for appellant.

Alvin L. Newmyer and David G. Bress, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal by S. S. Kresge Company, defendant below, hereinafter called defendant, from a judgment entered upon a verdict in the Supreme Court of the District of Columbia in favor of the appellee, Nellie Lowe Kenney, plaintiff below, hereinafter called plaintiff. The suit was in negligence for personal injuries alleged to have been sustained when the plaintiff fell in the defendant's store on December 13, 1933. On October 3, 1934, she sustained further injury by reason of a second fall which she alleged was the result of physical weakness produced by the original injuries. The sole question in the case is whether or not there was evidence from which a jury could conclude that the defendant was responsible for the injury received in the second fall.¹

The facts are as follows: The plaintiff was a married woman, a chiropodist by profession, in good health, about sixty-three years of age, residing with her husband in the District of Columbia. On the date of her first fall she had gone into the defendant's store to do some Christmas shopping. On the way down steps leading from the street floor to the basement, she caught her foot in a toy drum which had been placed on the steps by an employee of the defendant, and fell to the bottom of the steps. Thereby she received a simple fracture of the anterior branch of the left pubis, a simple complete fracture of the eighth and ninth ribs on the right side in the front, and other injuries. After treatment in a hospital for several days, she was taken to her home and was there confined in bed for about seven weeks, or until about the middle of February. Thereafter she was able to be out of bed to some extent, and with assistance to get from her bedroom to her operating room, which was located at her residence, and at times to work on patients by sitting on a hospital cushion on a stool and wearing a support which her doctor had provided and which her maid would strap upon her. Respecting her second fall the plaintiff's testimony was: "On the night of October 3, 1934, at about 11:30 P. M. she wanted a drink of water. There was a water bottle on the mantle beside her bed in which she kept her water cool and she slipped around and up and thought she would get to the mantle. `I thought, "well, I am not very steady, but I think I can get it." So, I didn't want to disturb anybody. Anyway, I reached up for my water bottle, and when I did, I staggered backwards (indicating), and sat down. On the floor, I sat down hard, and that broke my back.'"

The case was duly tried to a court and jury, and at the close of the evidence the defendant requested, among other instructions, the following:

"The jury is instructed that there can be no recovery in this case for injuries caused by plaintiff's fall in the month of October, 1934, but in case they shall find in favor of the plaintiff, their verdict must be confined to damages for such injuries only as were the proximate result of the fall in December of 1933 in the Kresge store."

This, upon objection by the plaintiff, was refused, and exception duly noted. Thereafter, at the request of the plaintiff, the court instructed the jury:

"You are also instructed as a matter of law that if your verdict is for the plaintiff and if you further find from the evidence that the plaintiff acted as an ordinary and reasonable person on the night of October 3, 1934, in trying to get a drink of water and that while so doing she was caused to fall as a direct result of a weakness or physical instability produced by the injuries which she sustained on December 13, 1933, in the defendant's store, then you are instructed that she is entitled to recover for the injuries sustained by the fall on October 3, 1934, in addition to the injuries sustained on December 13, 1933." There was a verdict for the plaintiff in the sum of $12,000, and judgment was entered thereon. The errors assigned are to the action of the court in granting the instruction given, and in refusing to grant the instruction requested.

The defendant does not urge that the instruction given embodied an incorrect statement of the law. But the defendant contends that there was no evidence sufficient for the jury upon the issue of responsibility for the second fall. The defendant asserts, putting it concretely, that the evidence did not justify the consideration by the jury of the injuries sustained as the result of the second fall. The law embodied in the instruction given was correct. The law holds responsible in damages one whose negligent act is the proximate cause of injury to another. "The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." Goodlander Mill Co. v. Standard Oil Co. (C.C.A.) 63 F. 400, 405, 27 L.R.A. 583. In the application of these principles to a situation where one injury alleged to have been caused by the negligence of another is succeeded by a further injury alleged to be the result of the first, the law regards negligence on the part of the injured person which contributes to the further injury as an efficient intervening cause. Hartnett v. Tripp, 231 Mass. 382, 121 N.E. 17; Wagner v. Mittendorf, 232 N.Y. 481, 134 N.E. 539, 20 A.L.R. 520; Hoseth v. Preston Mill Co., 49 Wash. 682, 96 P. 423.

In effect the defendant's position, as embodied in its objection to the instruction given and as embodied in its requested instruction, was a motion for a directed verdict in the defendant's favor upon the issue of responsibility for the injuries caused by the second fall. As we said in Hopkins v. Baltimore & Ohio Railroad Company, 65 App.D.C. 167, 81 F.(2d) 894, 898.

"It is of course the rule on a motion for a directed verdict that the evidence must be `. . . construed most favorably to the plaintiff . . .' Thomas R. Riley Lumber Co. v. McHarg, 47 App.D.C. 389, 390. But this does not mean that there must be put upon the plaintiff's evidence a strained construction. The plaintiff must be given `. . . the advantage of every inference fairly deducible from all the testimony . . .' Idem. The trial judge must give `. . . full effect to every legitimate inference . . .' Dodge v. Rush, 28 App.D.C. 149, 154, 8 Ann.Cas. 671. As said by the United States Supreme Court, a directed verdict is to be granted when `. . . the evidence, with all the inferences, that justifiably could be drawn from it, does not constitute a sufficient basis for a verdict . . . A mere scintilla of evidence is not enough to require the submission of an issue to the jury. The decisions establish a more reasonable rule "that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed" authorities cited.' Gunning v. Cooley, 281 U.S. 90, 93, 94, 50 S.Ct. 231, 232, 233, 74 L.Ed. 720. Italics supplied."

Upon a careful review of the record we feel compelled to conclude that there was not evidence from which a reasonable juryman could find that the defendant was legally responsible for the injuries received in the plaintiff's second fall, or, putting it affirmatively, we feel compelled upon the record to conclude that under the evidence all reasonable jurymen must have found that the defendant was not legally responsible for the injuries received in the second fall.

Supporting the view that the plaintiff, in respect of her second fall, was negligent, is the following: According to the plaintiff's attending physician, the plaintiff's injuries were serious.

"Although there were continued applications of ordinary treatments there was no response as to healing, in that there was no callous formation. `The two bones the reference here is to the pubic fracture were equally as immobile as at the time of the injury, and throughout the entire period apparently the witness was referring to the period between the first and second fall there was no evidence manifested of any regeneration of the bone structure or union of the fractures.' * * *

". . . there was and remains instability. She never acquired that sense of equilibrium which was required for freedom of movement. Some motion could be attained, but it was always with the feeling that comes from an insecure foundation."

In March before the October of the second fall, the plaintiff's physician:

"informed the plaintiff that as far as he understood her condition she had arrived at as much in the way of relief of her symptoms as was possible to obtain, there being no evidence of healing and informed her at that time that she would have to remain an invalid."

The physician testified further:

"She frequently had to be assisted during that period between March and October, but witness could not tell who assisted her inasmuch as he was not present."

According to the plaintiff's daughter:

"plaintiff was not able to do anything for herself . . . she saw her mother every day for a period of about five months the period of five months succeeding the first fall after that; during that period plaintiff was an invalid, not able to help herself at all, having pains all through her side . . . witness saw plaintiff almost every day after this five months period . . . plaintiff was then very...