Petition for a Writ of Certiorari — Domany v. Otis Elevator Co.

TABLE OF CONTENTS.

Opinions BNE nichcieucquingudia ee sia ae

| Jurisdiction wan ainee 98s.

Constitutional Provisions and Rinstie Court Rules*

NII aoisisiiininsmecdaanitnegaalaiian ce eases 3

Statement . MY AMET RAM deo ISS OL aes 3

Reasons for Granting the Writ JeNene beh ae 5

1. Supervisory ite Ce 5

2. Constitutional Right to Jury Ma... ¢

3. Argument That There Is No Evidence of Con-

tributory Negligence ween m en Mapes *

4. Argument on Marriage Status ______ Mcetsaiics

Conclusion ccna eed ee

Appendix: |

Memorandum of District Court Re: Motion for

_ Judgment N. O. V. and/or New Trial ------

Opinion of the United States Court of of Appeals for

the Sixth Circuit inniprie nahaidahatigatiiladaditeaa

Judgment of the United States Court of Appeals,

Case No. 16,638, Mary Domany v. Otis Ele-

vator Company pebtetediipdasiaipRnlcia daakaa iicsbniaailaatiaaes |

- . Judgment of the United States Court of eit

~~ Case No. 16,639, Mary Domany vs. Sears, Roe-

buck & Company’ Ry wee OTS CE Se ce Bes

Judgment of the United States Court of Appeals, ©

Case No. 16,640, Andrew’ abecsine 3 v. Otis Ele-

WU a nisiese inion ee ieee ee

_ Judgment of the United States Court of Appeals,

Case No. 16,641, Andrew Domany v. ‘Sears

Roebuck & Company sheaicaiicliganiesiiticaiae anne

Judgment on Jury Verdict (Mary Domany) ants ae

Judgment on Jury Verdict (Andrew Domany) __ 55.

Supreme Court of the United States, Rule 19, : ‘

- 1.¢b), ee Oe Ss Ole meine ua 5 55.

‘ United States Constitution, Article 1, Sectics. 1 56

United States Constitution, Amendment VII ____ . 56 |

oud amon From Transcript of Proceedings aa. Sie

TABLE OF AUTHORITIES. |

Ses & Gulf. Stevedores, pam v. ‘Bllermais tie. -

--Bta., 369 U. S. 355, 82 S. Ct. 780, 7 L. Ed. 2d 798 6;7.

Bickley v. Sears, 62 Ohio App. 180, 23N.E.2d505__ 12

Bush Adm’r vs. Harvey Transfer Co., 146 Ohio St.

657, 67 N. hy Sian tencecenenunse 8

Chesapeake & Ohio Ry. v. Martin, 283 U. S, 209, 51

S. Ct. 453, 75 L. Ed. 983 _________ Spe capeliinbiaees 14, 15

Durham v. - Elevator Co.,.166 Ohio St. 31, 139 N. E. 2d

\ -10 mee eS AH a 8

Fairmount Glass. Works v. ‘Cub Fork Coal Co., 287. |

U. S. 474, 53 S. Ct: 252, 77 L.Ed. 439 oe ee :.

Franklin v. Delgado, 5 Cir., 262 F. 2d 439 _____-__ 9

Galloway v. United States, 319 U. S. .372, 63 S. Ct. . |

- 1077, 87 L. Ed. 1458 svathemeecya crete rrerenn sneer 6-7

Gibson v. Lockheed Aircraft Service, Inc., 350 U. S.

: 356, 76S. Ct. 366, 100 L. Ed. 395 (1956) PS ae

Hause 9. Lake Erie & W. R. Co., 105 F. 733 Sar ee 15

862 ea cae Sees Ta al epee 23

OE SOE Se GONE es PORT Ns APN SN IR ETN IT Fn NT MeN yf et ROD ate to Rar ony

Machransky v. Mackransky, 31 Ohio. App. 482, 166

oe ee ee ee 20"

Mason v: Mathiasen Tanker Industries, Incorporated, ee

$C, UY ME 9

| Mazzolini v. Mazzolini, 168 O. 4. 357, 155 N. gE 2d 206 ‘22

McDougall v. Glenn. Cartage Co., 169 Ohio St. 522,.

160 N. 20226 Rt Saar Ree 16°

Moore v. Smith, 3 Cir. 343 F.2d 206_.. sid

Neese v. Southern Ry., (350,U. S. 77, 76S. Ct. 131, 100 ‘

L. Ed. 60 EIDE Dit ET Te en ERE NT Vine 8

Olijan v. Lubin, 380. L. A. 393, 50 N. E. 264, 143 2

' 0.8. 417, 59 N. E. 2d 658 Pee Ne Ree SLD: a ae 22

- Patterson v. Gaines, 47 U.S. 550, 12 L. Ed. 553 ____ 22

St. ‘Paul & Marine. Ins. Co. v. Baltimore & Ohio R.

Co., 129 Ohio State 401,195 N. E. 861 _____ 12

Thomas, M. H., & Co. v. - Hawthorne, 245 S. W. 966 15

Wenning v. Teeple, 144 Ind. 189, 41 N. E.600______ :

Worden v: Tri-State Insurance Company, 10 Cir.; |

TOE eae 9.

Texts.

14 A. L. R. 2d 9. ieee nesiemndtacduihdilninscicdsdeissoataiapabiitibiamiata-as Sct 21

‘SMALE ERR Re 10

5 Moore’s Federal Practice (2 ad), 88, ig 38.08 (5) °6 a

5 Moore’s Federal Practice (2d Ed.) 102-4, Sec. 38.10 9

6 Moore, Federal Practice (2d Ed.), p. 3836, Sec.

5908(6) ce

FRR NER nn A EI YI

. > Constitution!

. Constitution of the United States: _

deatlidla WY, Bee, Ys se 2, 22, 23, 56

Amendment VII reer enn peen pom reegcyaapoenenaely 6, 7, 56

Statutes.

MOOG Wy ey

OU. 4 © tee) 3

oo a |

sae Rules.

Federal Rules of Civil Procedure:

RE RRPEER IIIS tora Ra ne REO 9

EA ES ae AU ae 9

United States Supreme Court Rule 19, 1. ©) «8, 5, 23; 55

Q

aman

In the Supreme Court of the United States

-- OCTOBER TERM, 1966.

No. gh eee \aienemeud

; - MARY DOMANY and ANDREW DOMANY,

Petitioners,

ve

OTIS ELEVATOR COMPANY, and

SEARS, ROEBUCK & COMPANY, .

Respondents. DM Fea

‘PETITION FOR A. WRIT | OF CERTIORARI

To the United States Court of Appeals

Be. the doco Circuit. *

The Petitioners, pw oad hilo ieee: pray.

~ that a writ of certiorari issue to review the judgments of ©

the United States. Court of Appeals for’the Sixth Circuit:

entered in the case on December 9, 1966. |

OPINIONS BELOW.

The Memorandum Opinion of the District Court for

the Northern District. of Ohio, Eastern Division, on de-

- fendant’s motions to set aside verdict is unreported. (Ap-

pendix, p. 24, infra.) The opinion of the Circuit Court :

of Appeals for the Sixth Circdit (Appendix, P. 33, a |

is apne at 369 F. 2d 604 (1966):

JURISDICTION.

} on December 9, 1966 (Appendix, pp. 50-53, infra.) Mr.

_-time for filing thé within petition to March 23, 1967. ‘The

jurisdiction % this Court is invoked under 28 U.S. Cc. A.

"§ pease): :

-.. QUESTIONS. PRESENTED.

to instruct the jury on the issue of contributory negligence

where there was absolutely no evidence of same in the rec-

ord; and where the Circuit Court of Appeals reversed. peti-

tioners’ jury: verdicts on the ground ‘that the trial: court

should have so instructed the jury; should not the United

States - ‘Supreme Court in the exercise of its supervisory

certiorari?

2. Does not the reversal re a jury verdict by the Cir-

cuit Court of Appeals, in the absence of plain legal error

prejudicial to respondents, constitute an invasion of peti-

tioners’ constitutional : right -to trial by jury under the

Seventh Amendment? .

3. In a Case where an Ohio Federal Court seeds

United’ States Constitution in according a valid Indiana

Circuit Court of Appeals refused to so honor that marriage,

. §rievous violation of their constitutional rights under said

S$.

_ ‘The judgments of the Court of Appeals were entered |

Justice Stewart by order dated March 6, 1957 extended the :

1. Ina case where the trial court soem refused P

powers over the lower federal courts grant the pions

applied Federal law under Article IV, Section 1 of the -

marriage “full ‘faith and credit,” and where the reviewing .

have not the petitioners, husband and wife, suffered a ~

/ Article IV? say § ae

.

a A in ey

a-

"Sar

x

: 3

CONSTITUTIONAL PROVISIONS AND SUPREME

COURT. RULES INVOLVED. . |

. Supreme Court of the United: States, Rule 19, 1.(b),

U.S. C. A., United States Constitution, Article IV, Section

1, and Diinitiliins VII are set forth in the Appt at

"pages 55-56, infra.

a

?

STATEMENT.

These alias were instituted in the District Court

based upon diversity of citizenship pursuant to 28 U. S. C.

A. 1832(a) and judgments thereon were entered Novem-

ber 10, 1964 (Appendix, pp. 54, 55, infra.) |

The judgments rendered in the District Court were

awarded in actions filed by the Petitioners : arising from

personal injuries recéived by petitioner Mary Domany in

1960 upon an escalator located in-the department store:

operated by Respondent Sears; Roebuck & Co. (herein-

after called. Sears) and maintained by respondent’ Otis *

' Elevator Company (hereinafter called Otis). Summarizing

the facts briefly, Mary Domany while Christmas shopping

at the Sears store,“was descending on a moving escalator.

to meet: her husband and ‘children on the main floor. The

escalator stopped abruptly throwing Mrs. Domany down,

despite the fact that she was holding the handrail. The

overwhelming evidence was that the escalator’s short

stopping distance caused it to | be Congurtue for its

_ passengers.

The edie -salised im a Domany and her.

family were disastrous. e accident caused a painful

_ leg injury requiring. corrective surgery and left Mary

Domany a mental and emotional cripple—an affliction she

will bear the rest of her life. Petitioner Andrew Domany’ S

fe

4 F *p

action arose from loss of his withe’ S services as a wife and

‘mother and for the considerable medical, moupital and

other attendant expenses.

These actions were consolidated for trial. The jury

found that the respondents were negligent and that the

’ petitioners were damaged in the amount of $240,000. Dis-

trict Court: Judge Kalbfleisch overruled the motions for

new trial and for judgment notwithstanding verdict, con-

- cluding that the evidence supported ‘the jury verdict.

Upon appeal the Circuit Court of Appeals for the Sixth

Circuit found no error relative to respondents’ negligence

or damage. Nevertheless, the jury’s verdict was reversed

by the Appellate Court on grounds that have no legal

foundation whatsoever. The Court remanded the cases

for new trial, stating that the District Judge should have

submitted the issue of contributory negligence to the jury.

It can be clearly demonstrated to this Court that the j jury’s

verdict was upset by the simple expediency of saying that

prejudicial error was committed upon a jury instruction,

when in fact, the District Court was quite correct i in refus-

ing the requested instructions.

.Also, in rertfanding Mr. Domany’s case for new trial

the Court of Appeals. states that the petitioners did not’

sufficiently prove they were ‘married, despite the uncontra-

dicted testimony that they. were married ceremonially in

Indiana more than 3 years, before the accident. It can be

‘likewise shown that the review tourt’s conclusions regard- .

ing marital status are patently erroneous.

That the trial judge ruled correctly upon these issues

will be treated in detail in Sections 3 and 4 hereafter. -

re

Re eS ee a ee ihe’ 3

5 :

REASONS FOR GRANTING THE WRIT.

_ 1. Supervisory Powers.. It would hardly be possible: -

to present a more convincing precedent for granting a

"certiorari than Gibson v. Lockheed Aircraft Service, Inc.,

350 U. S. 356, 76 S. Ct. 366, 100 L. Ed. 395 (1956).

In the_per curiam opinion this court states at p. 357

the reason certiorari was granted:

“We congider this to be a. case where, in the exercise

of our supervisory powers over the lower federal .

_ courts, the judgmient of the Court of Appeals should

be reversed in the interest of justice and that of the

District Court reinstated.”

_ In the concurring opinion Mr. Justice Frankfurter

elaborates as follows: ns |

“But my brethren find that certain rulings of the Court |

of Appeals involving ordinary questions in the law

of negligence, which by themselves never would have |

warranted the granting of a writ, are so obviously and»

injuriously erroneous, ‘as to call for an exercise of this

court's power of supervision.’ This is of course ‘one

of the considerations within our Rule governing re-

view on certiorari. Rule 19(1)(b) 28 U.-S. C. _ =

The pertinent portion of the foregoing rule reads:

“(b) Where a court of appeals * * * has’ so far de-

parted from the accepted and usual course of judicial —

proceedings * * * as to call for an exercise of the _

court’s power of supervision.” | ,

The similarity of what occurred in courts of appeal .

in Gibson, supra, and in the case at bar is remarkable—

the only real difference being that in the instant cases the

erroneous ruling is exceedingly more obvious and in-

jurious. } | - ir,

"+ The Court of Appeals in the Gibson ease, 217 F. 2d .

730, reversed the jury’s verdict, holding that the trial

losers asus pines litle le peat ee er

° « * °

? Meee. haiiumes es. Sait «MARA RNNRAS SIS i Tal cia ia See Re en

a

judge committed prejudicial error in refusing certain re-

quested jury instructions relating to contributory neg-

ligence. In reinstating the judgment of the District Court,

i this Court concluded:

“A thorough consideration of. the record convinces us

that the.charge as given by the trial court was both

complete and correct. Cf. District of Columbia v.

» Woodbury, 136 U. S.-450, 466, 10 S. Ct. 990, 996, 34

L. Ed. 472. There was no. error in refusing the re--

quested instructions.”

. Petitioners earnestly submit that even’a cursory re-

_ view of the record and the opinion of the Court of Appeals

in the within cases, discloses compelling. reason why this

Court should grant this writ in the exercise of supervisory

powers. ‘As demonstrated hereafter, the complete. absence

of substantial competent evidence of contributory neg-

ligence certainly justified the trial court’s charge to the

: jury.

2. Constitutional Right to Jury Trial. An equally im-_ ~_,

' portant reason for granting this writ exists because the -

Court of Appeals’ reversal of the jury verdict constitutes

a violation of the following provisions of the Seventh

Amendment of the United States Constitution:

‘““* * * no fact tried by a jury, shall be otherwise re-

examined in any Court in the United States, than

according to the rules of the common law. tia

Many decisions of this Court interpreting this amend-

ment uniformly hold that: federal appellate courts can

grant a new trial only for some error of law in the trial

court. 5 Moore’s Federal Practice (2 ed.), 88, Sec. 38.08 ~

(5). The leading Supreme Court cases in point are At-

lantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369

, U.S. 355, 82S. Ct. 780, 7 L. Ed. 2d 798, Galloway v. United

v

| | .

; \ x

States, 319 U. S. 372, 63 S. Ct. 1077, 87 L7 Ed. 1458: Fair-

mount Glass Works v. Cub Fork Coal Co., 287 U.S. 474,

53 S. Ct. 252, 77 L. Ed. 439, all of which “tiie judgment

of the district court based on the Seventh Amendment.

The necessary corollary of the above rule is that a

federal appellate court violates the Seventh Amendment

when it.reverses a jury verdict where no error ‘of law

appears in the record.

In Atlantic & Gulf, supra, this Court concluded that

the trial court had charged the jury correctly and that the

subsequent reversal of the jury’s findings were in con-

travention of the Seventh Amendment. This is precisely

what occurred upon appeal in the instant cases which calls

for corrective action by. the court.

The holding in Galloway, supra, at p. 395 is that an

. appellate court may review a District Court’s abuse of

discretion in ruling on the question whether ‘evidence is

sufficient for submission to jury. There was no finding of

abuse of discretion in the within ‘cases, nor could there

be.

Fairmount, supra, reiterated the long reliever a

under this amendment that a Circuit Court of Appeals

cannot review a trial court’s action in denying a new trial -

for error of fact ‘where such motion is based on excessive

verdict. In view of the groundless reason for reversal ad-

vanced in the opinion of the Court of Appeals, the peti- -

° tioners are sincerely convinced that the amount of. the.

verdicts silently entered into the detision ‘to reverse the

_ jury’s verdict. Of the six questions on appeal, the one

claiming excessive damages was the only issue not even

discussed in the opinion: Expansion of the Seventh

Amendment’s re-examination provision has developed on

the appellate level respecting damages. 6 Moore, Federal.

Practice (2d Ed.), p. 3836, Sec. 5908 (6). However, this

| 8 .

Court has yet to rule in this interpretation. Neese v.

Southern Ry., 350 U. S. 77, 76 S. Ct. 131, 100 L. Ed. 60.

Even under existing appellate decisions, the Seventh

_- Amendment obviously prevented the Court of Appeals

_.. from granting new trial to respondents by re-examining

damages. The point being made here is that the appellate _

court cannot do indirectly (i.e., reversing a jury verdict.

on insupportable legal grounds) that which is forbidden

directly (re-examination of damages). Petitioners are.

confident that this Court would not ‘hesitate to exercise

its jurisdiction where the jury verdict is reversed on

superficial ressoning which proves invalid under legal

analysis. _ . , “

3. Argument that there is no evidence of contributory

negligence. The Appellate Court refused ‘to apply basic

rule of law applicable upon this question which isfoundin ~

the fifth syllabus of Bush Adm’r vs. Harvey Transfer Co., --

146 Ohio St. 657, 67 N. E. 2d 851.

“Neither negligence nor contributory woiliamaie i

presumed. On the contrary, there is a presumption |

that * * * (plaintiff) was acting as a person of

ordinary .care and prudence ‘who would. have acted

under the same or similar circumstances. To warrant.

- .a submission of the issue of contributory negligence

to a jury it is essential that some evidence be adduced

tending to show that the plaintiff failed in some re-

spect to exercise the care of an-ordinarily prudent

- person under the same or similar circumstances and

that such failure was a proximate cause for his in-

‘jury * * *.”

Further, the Court of ‘ici failed to apply the rule

_ it cites in Durham v, Elevator Co., 166 Ohio St. 31, 139 N.

E. 2d 10, that to submit an issue to a jury, substantial com-

petent evidence of relevant facts must be presented by the —

9

party having the burden of proof. This criterion is appli-

cable under both Federal and Ohio law. (5 Moore’s Fed-

eral Practice (2d Ed.) 102-4, Sec. 38.10.) That.contribu-

tory negligence is an affirmative ‘defense which must be

proved by the defendant under state and federal law is

also beyond question. ‘Rule 8(c) of Federal Rules of Civil

_ Procedure, 28 U. S. C. A:; 39 Ohio Jurisprudence 2d 714.

A brief portion of the record in the case at at bar-must

be examined to determine whether respon ndents present

‘substantial competent evidence that Mary Domany failed ©

to exercise ordinary care which proximately caused her

injury. If they did not, they are not entitled to the in-

struction and were the District Judge in that instance,

to submit: that issue .to the jury, he would be’ permitting

: the jury to guess and speculate and that would be preju-

' dicial. error. Worden. v. Tri-State Insurance Company, 10

Cir., 347 F. 2d 336; W. Moore v. Smith, 3 Cir-343 F.2d

206; Mason v. Mathiasen Tanker Industries, Incorporated,

4 Cir., 298 F. 2d 28: Further, under Rule 61, Federal

Rules of Civil Procedure, 28 U. S. C. A., a verdict should

not be set aside unless the failure to instruct is shown to

affect the substantial rights of the parties and substantial

justice. Franklin py. Delgado, 5 Cir., 262-F. 2d 439.

The only competent evidence that was adduced that

has any degree of relevancy to the issue of contributory

negligence is the positive testimony of Mary Domany that .

she was holding the handrail while she rode the escalator .

(pp. 57, 58, infra). There is not a shred of evidence to con-

tradict this testimony, or tending to prove that she failed

to exercise care for her own safety. |

_ What then prompted the Circuit Court of Appeals to

cloak the. trial judge in,the stairied, robes of prejudicial

error? Is there substantial competent evidence in the

record to justify the reviewing court’s reversal of the jury

i 2 a a ht te ~

as -* 10 .

verdict? The’ nit S opinion ani be’ examined i in search

for answers.

In the vital paragraph of the ‘iii Court’s opinion

(pp. 35-37, infra) the court attempts to explain the basis

for its reversal. The following analysis of the court’s find-

ings will most vividly demonstrate that the reversal was

not well founded. _ :

a) “There were evidence that there were signs

clearly ‘visible at the approach to, and on, the -

escalator in question, cautioning passengers to ©

hold the handrail.”

- This is undisputed evidence that obviously has no

._ relevancy. to contributory negligence, at least in absence

of evidence that Mary Domany failed to heed the signs.

b) “An elderly man who was below Mrs. Domany on

the escalator walked off the escalator after it had

estopped short and was not injured.” @

The record shows that the man referred to was esti-

mated to be age 65 (pp. 57, 58, 59, 65, infra). The mere

fact-that a man did not fall when the escalator stopped is

clearly irrelevant and iglesias to prove contributory

negligence.

It is an elementary rule of evidence that similar acts

(or non-occurrence thereof) are incompetent evidence un-

less similarity in. circumstances is first established." Ex-

pression of this Fale appears in 31 A. L. R. 2d 190 at page »

220.

“As indicated in the lies discussion, on with

the relevancy, as to. particular issues, of evidence of

the absence of other accidents at the place where the

‘plaintiff or his property suffered the courts have uni-

versally ‘recognized or assumed that i in order for such -

evidence to be relevant for any purpose it must be

Ne

a

shown that during the period, involved the conditions

at the place in question were substantially similar to

those prevailing at the time of the accident in suit.”

The divergent circumstances as between the unidenti-

fied man and Mrs. Domany are apparent. Without some

evidence, should a jury be permitted to speculate: that the

, man had only feminine strength; that he was wearing the -

' Same type of shoes and assumed the. same stance; that —

being at the bottom was no different than being in the

middle of the escalator; that he was holding a purse in the

right hand—the obvious variations become’ ludicrous.

Also, it might well have been that the man was exercising

more than ordinary care (e.g., that he’ was holding on

-with both hands)..

That such ahaa is also ita to the issue of ©

contributory negligence is set forth in 21 Ohio Jur. 2d

225-6, Evidence Sec. 211.

“# * -* Tn all cases in which evidence of other ac-

_cidents occurring at the same place, in the operation

of the same or a similar machine, or by the use of the -

same or similar appliances, is admitted, it is (1) for

the purpose of showing the dangerous character or

‘condition thereof—whether or not a dangerous con- -

dition existed,.and (2) to show notice to the defend-

ant of such character or condition—to bring home

to him notice of the danger or defect which is claimed

_ to have caused the accident. But such evidence is

- distinctly not admissible for the purpose of showing .

negligence on the part of the defendant. * * * Nor

is such evidence admissible to show either care or

negligence on the part of the plaintiff. * * *” Ashta-

-bula v. Bartram, 3 O. C. C. 640, 2 O. C. D. 372; Brook-

_ lyn Street R. Co. uv. Kelley, 6 O. C.:C. 155, 30. C.D.

_ 393, affd 53 O. S. 646, 44 N. E. 1148 (emphasis added).

c) ,“There was testimony by those who performed .

| tests on the escalator to the effect that by holding

\

\

12

ie the handrails they were able. to ‘maintain

their balance. wi

No tests were conducted to determine: if a person

; would fall on the escalator. The appellate court: in revers-)

ing the jury verdict relies ori evidence that was incom-

petent for the purpose of offering - proof of contributory

negligence. The tests referred to weré instituted by Peti-

tioners more than 3 years after the accident for the pur-

pose of measuring stopping distance, which indeed, proved

to be dangerously short’ as concurred i in by Otis’ own n wit-

ness and employee.

These tests were conducted by two engineers, wae

testified as qualified experts on behalf of Petitioners. (pp.

60-62, 64, 65, infra.) Various men (the engineers as

_. well as all counsel for parties) had-occasion to be riding »

the escalator when it was stopped to measure the stopping

‘distance. All of the men knew, of course, that the escalator

- was going to be stopped. The appellate court relies on the

fact that none of these men happened to fall down during

- the tests (pp. 63-65, infra), despite obvious dissimilari-.

ties which would render such evidence incompetent to -

prove contributory negligence.

The applicable rule of evidence is that ‘eit of ex-

periments-are incompetent, unless it is established by evi-

dence that the same or substantially similar conditions

existed during the tests. St: Paul & Marine Ins. Co. v.

Baltimore & Ohio R. Co., 129 Ohio State 401, 195 N. E. 861.

The observations of the court in Bickley v. Sears, 62 —

Ohio App. 180, 23 N. E. 24.505, are equally applicable to

the case at bar (p. 186): |

“Another claimed error in evidence was that the court |

refused to permit the store manager to testify con-

cerning an experiment he performed the next day by

putting some of the sweeping compound on the store

*

; te

» ” floor ‘and olin to slip on it himself. From the lout

facts surrounding the experiment as offered by the de-

_ fendant and shown in the record and their dissimi-

larity to. the situation shown by plaintiff’s evi-

dence, the court did not abuse its discretion in ruling

.out this evidence. .Many dissimilarities no doubt oc- °

curred to the court, among them: The. witness knew

what he was doing or trying to do—the plaintiff was

.not aware of her peril; his weight may. have’ been:

much different than hers; his shoe, especially the heel, '

. was quite different from’ that of a woman’s shoe and

it does not appear-whether the heel of his shoe was of.

_ the same material as that of the plaintiff, or. r- whether

new or worn.’ .

In the instant case, tentilingery regarding the tests was

qualified and received into evidence as bearing on the issue

of respondent’s negligence, i i.e., the short stopping distance

of the escalator. Respondent did not even attempt to

qualify (by showing similar conditions) the incidental

testimony that no one fell while testing stopping distance...

Connecting this testimony with issue of: contributory negli-._

gence was impossible due to the vastly different .circum-

stances. It is incomprehensible how the review court could,

nevertheless, treat this testimony as substantial competent

evidence of se Ea aaa in reversing the Jury

verdict.: Peers

d) “While the plaintiff, siiey Domany, iestified that -

she was holding onto the handrail at the time

of the accident, the jury might well infer that she ~

was not. As the trial judge said in his charge,

: You are not required to believe the testimony of

- any witness simply because he ar she was under

oath. You may believe or disbelieve any witness |

wholly, or in part.’ Such an inference would be

an immediate inference from the facts proven

and would not be predicating one inference on

another inference.”

¢

ee a i4 3 / |

' Petitioner must candidly gay that such reasoning is

absurd. The charge to the jury as to witnesses’ credibility

has no relationship at all when determining whether a jury

issue is presented. First, the trial judge determines

whether there is evidence of facts sufficient to submit &’

given issue to the jury. The jury’s role in weighing credi- —

‘bility of witnesses, then. — in areata ol issues

properly submitted to it.

If the above quoted reasoning is ‘valid, then the pre-

_ sumption of ordinary care would be non-existent. A jury

| could even find: a defendant negligent based solely on his -

own testimony denying alleged negligent acts.

' This Court had occasion to thoroughly review this |

_ question in Chesapeake & ‘Ohio Ry. v. Martin, 283 U. S.

209, 51 S. ‘Ct. 453, 75 L. Ed. 983, wherein it was declared:

. “We recognize the general rule, of course, as stated by

both courts, below, that the question of the credibility

_ of witnesses is:one for the jury alone; but this does

not mean that the jury is at liberty, under the guise

of ‘passing upon the credibility of a witness, to dis-

regard his testimony, when from no reasonable point .

‘of view is it open to doubt. The complete testimony .

_of the agent in this case appears in the record. A ©

reading of it discloses no lack of candor on his part.

~ It was not shaken by cross-examination; indeed, upon

this point, there was no cross examination. Its accu-

_ racy was not controverted by proof or circumstance,

directly or inferentially; and it is difficult to see why,

if inaccurate, it readily could:not have been shown to

~

-- ‘be so. The witness was not impeached; and there is

: nothing in the record which reflects unfavorably upon

his credibility. The. only possible: ground for sub-

mitting the question to the jury as one of fact was that

the witness was an employee of the petitioner. In the

circumstances above detailed, we are of the opinion

that this was not enough to take the queétion to the

jury, and that the court should have so held.”

2» — 3

” Soe cases are cited in support’of this rule, ‘italia |

Hauss v. Lake Erie & W. R. Co., 105 F. 733, a Sixth Cir-

cuit case, in which the following pertinent observations

- are made:

“The. testimony of the witness was not contradicted ©

” by that of any ‘other witness, nor was it brought in

- question by the cross-examination nor by the admitted

facts of the case; and, outside of the suggested interest

and motive, there j is not a fact or circumstance in the

case which tends to raise a doubt as to the truth of his |

testimony.”

“* * * Nor do the facts and clrcusdatenoes of the

case justify an impeaching presumption against the

credibility of the witness, founded upon’ his mere

relation to the parties and to the“subject matter of

‘the controversy, which should overcome the counter.

_ presumption that, as an. uncontradicted witness,

testifying under oath, he spoke the truth.”

‘In M artin, supra, this Const also adopts ee expres- |

sion of this rule i in M. H. Thomas & Co. v. Hawthorne, 245 .

S. W. 966: %

“Aj jury ais iia discredit a witness ail dis-

regard his testimony in the absence of. any equivoca-

, tion, confusion or aberration in it. It is not proper to

submit uncontradicted testimony to a jury for the sole ~

purpose of giving the jury an opportunity to nullify it

by discrediting. the witness,.when nothing more than

mere interest in the case exists upon which to dis-

credit such witness. The testimony must inherently

contain some element of confusion or contrariety, or

must be attended by some circumstance which would

render a total disregard of it bf a jury reasonable

rather than capricious; .before a peremptory instruc-

tion upon the evidence can be said to constitute:an

invasion of the right of trial by jury. That it is proper »

for a trial court to instruct a verdict upon the uncon-

C8 pc Da NL k 1928 Linh? = |

Ni ta his ah iN et ats octblet tr A

PE ee en eT

.

. " | 16

tradicted testimony of interested parties, when it: is

positive and unequivocal and there is no circumstance

disclosed tending to discredit or impeach such testi- . |

: mony, can be said to be a settled rule in Texas. ad

In view of the’ ‘presumption that Mery Domany exer-

cised ordinary care, the positive testimony that she was

holding-the handrail and the lack of any evidence tending

to show careless conduct on her part, the trial court cor-

_rectly withdrew the isSue of opeeennogy negligence from

the jury..

The appellate court inits opinion states that deve are

facts in the record from which a jury might infer that Mary

Domany was not holding the handrail. From the preceding :

analysis of the opinion it can be readily seen that there are

no such facts in the record. However, there is a distinct

‘reason that the trial judge was correct in his charge on

contributory negligence. To illustrate, let us assume that

there was some substantial competent evidence from which

the jury might reasonably infer that Mary Domany was

not holding. the handrail. ‘Still, a jury issue would not

thereby be presented. To find contributory negligence it

- would be necessary toydraw a second inference from the

first one:. that the inferred failure to hold the handrail —

caused her to fall. Although the appellate court claims

that separate immediate inferences are involved, it is ap- |

parent.that one inference would hecessarily be based on

another. In McDougall v..Glenn Cartage Co., 169 Ohio St.

922, 160 N. E. 2d 226, the court:on page 525 states:

“It is of course basic that an inference can not be predi-

‘cated upon a fact the existence of which rests on .

another inference.”

17

4. Argument on Marriage Status. Respondents in

- their answers “denied for want of knowledge” that Peti-

tioners were man and wife. Then, similarly to their pro-

__ Gedure on the issue of contributory negligence, they offered

no evidence on the subject. Judge Kalbfleisch once again

decided that in the -absence of any probative evidence

attacking the ‘status of rae, that status was not in|

issue. .

On appeal, Respondents repeated their _— pee

the Domanys-were not married and were “living in sin.”

The Court of Appeals borrowed a page from a book as yet

unwritten and held in effect that the 1957 céremonial mar-

riage of the Domanys in Angola, Indiana was not entitled

to the full faith and credit in the Ohio courts that the Con- ~

'_ stitution: commands. If the Court of Appeals were cor-

rect, Andrew Domany the individual, a man alone save

for the Constitution, not only lost a $65,000 judgment for

loss of his wife’s consortium services, companionship, and

his out-of-pocket expenses, but was exposed to’ prosecu- -

tion for bigamy and the children that Mary .Domany bore

him have been bastardized. If these are the concerns of

one man as opposed to those of society, we fail in our ef-

forts to distinguish them. The Court of Appeals unwit-

tingly imperilled the status of all second matriages.

The appellate court saw fit to devote half its opinion

to questionipg whether the Petitioners are husband and.

‘wife. Upon release of the appellate decision, the news-

paper services announced to the world—

“Bhe appeal also stated that Domany had a wife some-

where in Europe and thus, not legally married to‘Mrs.

Domany, was not entitled to any damages.”

Understanding the resulting humiliation and disgrace

suffered by Mr. and Mrs. Domany and their two school

age children requires little imagination. Sears in its brief

on appeal admits that during the trial it characterized the

f

Pr

vita saih acetate tsticaull bem ce a alt ed ew Dae feign tga ns

.

AE ATL, i imtah eOES

QO

18

- Domanys as “living in sin.” Indeed, there was a deliberate

effort to impugn their moral character before the jury

_ under the guise of relating it to damages. This suggestion

has now snowballed to the paint where friends, neighbors —

and fellow citizens of the Petitioners have been led to be-

lieve that the Domanys are committing adultery and their —

children are being taunted as “bastards.”

How does this sorry state of affairs arise from a negli-

gence action in our Federal Court System? Sears, in seek-

‘ ing reversal of the jury verdict awarded to Andrew Dom-

any for medical expenses and loss of services consortium,

claimed that as a matter of law the Domanys were not

married at the time of the accident.

The Petitioners are in fact married and were husband

and wife whén the accident occurred. The only relevant

evidence regarding marital status is the testimony of the

_ Petitioners that in 1957 they were married ceremonially in

Angola, Indiana (pp. 59-60, infra). Sears produced no

_ evidence to contradict this fact, but attempted to prejudice

the jury by showing that Mr.-Domany was previously

married in Czechoslovakia (p. 60, infra) and that Peti- .

tioners entered. into a common-law. marriage in 1952 (p.

59, infra).

It is axiomatic that husband and wife are no less mar-

ried because they formalize a common-law marriage. Re-

garding the previous marriage behind the iron curtain, Mr.

- Domany testified that he was divorced (p. 60, infra):

“Question: At the time you began to live with Mrs.

Domany in February, 1952 were you then divorced -

from your wife in Europe?

Answer: I was divorced because my iliescsna

ex-wife, she in Czechoslovakia—give to the court.” .

The only other evidence was that Mr. Domany filed a

_ divorce action in Cleveland in 1953 (p. 60, infra) and that

1953 was not the year he got his divorce (p. 60, infra).

19 .

- Contrary to assertions of Sears, no other fact regard-

ing Andrew Domany’s divorce was adduced in evidence.

_ What is most disturbing is that°the appellate opinion con-

. tains some startling statements of fact which ‘find no sup-

port in the record but are strictly a product of Sears’ in--

nuendoes. In fairness, it should be noted that Sears has

now changed legal counsel.

To demonstrate that the reviewing court’s finding of

_ marital facts is completely unsupported by the record,

reference is made to the last paragraph on pagé 608, 369 -

F. 2d 604 (pp. 36-37, infra) of the opinion.

, a) “The Plaintiffs entered into an alleged common-

law marriage in 1952. At this time, Plaintiff,

Andrew Domany, had a wife and three children

living in Europe.”

Comment: : The only evidence is Mr. Domany’s S.

testimony quoted above which is the direct opposite

of this statement (p. 60, infra).

b) “However, in 1953 he filed a suit.for divorce in’

| Cleveland, in which he alleged that he had a wife.

living in Europe.”

Comment: As seen above, Mr. Domany melt

fied the action was filed, but there was absolutely

no evidence as to what was alleged in the action;

none of the pleadings or other papers therein were

offered in evidence; nor was it determined whether

the action was filed in this country merely to settle

_ property rights.

¢) “The wife i in Europe filed an answer and contested

the action.”

- _ Comment: | Again, there is no evidence to this

7 - effect. ;

da) “No pe was sseidiol :

Comment: As seen above: the testimony was

that no ree was obtained in 1953 (p. 60, infra).

Pear ee ee

20

. e) “There was no further evidence that the European |

_ . Marriage was ever dissolv

Comment: This ignores Mr. Domany’s testi- ee |

. ~inoniy ‘that he was divorced (p. 60, infra).

‘There is no evidence to contradict Mr. Domany’s testi- -

mony that he was divorced when he entered into the com-

mon-law marriage. The opinion’s misstatement of facts

contained in the record is particularly disturbing because

‘of the obvious implication of disreputable conduct.

From this distorted statement of fact, the appellate

opinion applies principles of law which are no less ques-

_ tionable. The reviewing court, commencing with the false

premise that there was no evidence of Mr. Domany’s di-

. voree, then holds, in effect, that the Indiana ceremonial

‘marriage must be presumed to be invalid if dissolution of

the prior marriage is not shown.

It appears that the appellate court held that the

Domanys were not married as a matter of law and that

judgment notwithstanding verdict should have been

@ranted-as to Andrew Domany. “However, it is evident that:

. this was not the holding of the Court of Appeals, because,

necessarily, the case would not have been remanded for

new trial. To further add to the confusion, the opinion

states that J udge Kalbfleisch correctly refused to submit

the marital issue to the jury, but that he erred in not ad-

vising counsel as to the reasons (p. 38, infra). In any ©

évent, the marital law set forth in the opinion constitutes

the “law of the case” and thus its validity is raised.

The law applied regarding marital status should be of |

particular interest to this Court. Probably no area of the

' law is more steeped with public interest than the basic

unit of ‘our society—the status of marriage. Courts

throughout the land, of necessity, have adopted a very

protective attitude toward this status. Any law or decision

=

21

to the contrary must be scrutinized in the fine light of con-

stitutional protection and public policy. Thus it is mani-

. feat than an important question of state law is presented.

A rretin ill n

“Inthe instant case, the Court of Appeals proclaims

that, in the eyes of the law, the Indiana marriage is invalid

unless proof i is further adduced of the dissolution of a prior

marriage. As pointed out, such proof is in the record.

But aside from Mr, Domany’s testimony, this ruling i is pat-

ently suspect.

The -reviewing court relies ¢ on a few Ohio cases cited

in the opinion (p. 41, infra) that would place on the spouse

the burden of proving dissolution of ‘a prior marriage.

These decisions find little or no support in other jurisdic-

tions in the United States. 14 ALR 2d 9. As observed in 35 |

Ohio Juris. 2d 564, such decision has limited application:

ek Although the rule is thus-définitely settled in

Ohio, the cases in which it is settled are cases between

the spouses of the different marriages, or between the

party contracting the two marriages and one of the

spouses. It seems, therefore, that some weight may

be given in favor of the majority rule mentioned

above where the question arises as against third

parties, such as children or granteés.”

That Ohio would ordinarily follow the majority rule

appears in Machransky v. Machransky, 31 Ohio App. 482, |

166 N. E. 423, at page 485 as follows:

be hi, Furthermore, the record unequivocally

shows the second marriage of the husband in Russia,

and it must be assumed that such marriage was not

unlawful.

When a marriage has been consummated in ac-

cordance with.the forms of law, it is presumed that no

_ legal impediments existed to the parties entering into

such marriage, and the fact, if shown, that either or

both of the parties have been previously married, and

¢

22

that such wife or husband of the first marriage is still

living, . does not destroy the prima. facie of the last

marriage. The presumption in such a case is that the

former marriage has been legally dissolved, and the

burden that it has not rests upon the party seeking

to impeach the last marriage. 18 te Case. Law, ©

Au et mi

; “This same view was taken in Olijan v. Lubin, 38

O. L. A. 393, 50 N. E. 264, which was affirmed by the Ohio -

Supreme Court in 143 O. S. 417, 55 N. E. 2d 658, without

discussion on this point. -

Without attempting to paren its validity in actions

between spouses, widow’s benefit cases and the like, the

rule announced by the appellate court is unconstitutional

as applied to Petitioner Andrew Domany because it is

violative of the United States Constitution, Article -IV.

F and credit must be extended to the Indiana mar-

riage of \95f. Ohio has no choice in this matter, and

neither by case decision nor judicial fiat should this In-

diana marriage be ignored. _ |

It is not within the scope of this petition to present a

full legal analysis of this constitutional question. Suffice it

to say; it is universally recognized that the validity of a

marriage must be-determined from the lex loci contractus.

Mazzolini v. Mazzolini, 168 O. S. 357, 155 N, E. 2d 206.

. Early decisions of this Court hold that a marriage must be

proved according to what would be proof of it where it

took place. Lieng v. Quia, 228 U. S. 335, 33 S. Ct. 514, 57

L. Ed. 862; Patterson v. Gaines, 47 U. S. 550, 12 L. Ed.

553. . Under Indiana law, the party who attacks a second

"marriage must prove its invalidity, Wenning v. Teeple, 144 -

Ind. 189, 41 N. E. 600. It, therefore, is imperative this.

. Indiana marital law be given full faith and credit under

Article IV, Section 1 of the United States Constitution.

23

In summary, the treatment of the marital issue by the

. Circuit Court of ieee should be reviewed aed this Court

because:

>) The facts found by the court are wholly unsup-

ported by the evidence so as to call for an exer-

cise of the court’s power of supervision pursuant —

to Rule 19, 1.(b) of this Court, 28 U.S.C. A.

(Appendix, p. 55, infra).

‘b) The viet Court inisapplied ; an “incall ,

state question” contrary to state law and should

likewise be reviewed under the provision of the

same rule. \

. ¢) The marital law as applied in Petitioner Andrew

Domany’s case is unconstitutional under Article

a IV, Section 1 of the United States Constitution.

CONCLUSION.

For the reasons set forth above, it is respectfully sub- _

_ mitted that this peice for writ of certiorari should be

granted. ; o

EDWARD I. STILLMAN,

Attorney for Petitioners.

SHEEHAN, ‘Cook, Miter & STILLMAN,

Of Counsel. ,

24 |

APPENDIX.

MEMORANDUM OF DISTRICT COURT RE: MOTION FOR

JUDGMENT N. O. V. Bae NEW TRIAL.

KALBFLEISCH, J.

Defendant Sears, ‘Tete & Co. and delendens Otis

Elevator Company have filed motions for judgment not- .

withstanding the verdicts or for aA new trial. Since both

defendants present basically the/ same arguments in sup- |

port of their motions, the Court's ruling on these motions |

’ will be discussed in this memorandum.

(2) The primary issue argued by the defendants is

whether the Court erred in charging the jury on the doc-

trine of res ipsa loquitur as to Sears, Roebuck. & Co. and

Otis Elevator Company. Before that issue is discussed,

there is a second issue ‘which will be- considered,

Defendant Sears maintains that the testimony of Pat

Christmas relating to a statement made to him by a cus-

tomer that “A kid pushed the button” (referring to the

emergency Stop-button) should not have been excluded.

Sears maintains that the statement should have been ad-

mitted as a spontaneous exclamation tending to prove that

a child had pushed the emergency Stop-button. This state-

ment was made to Mr. Christmas by an unidentified by-

stander when Mr. Christmas arrived at the top of the down

» escalator several minutes after it had been stopped.

This hearsay statement was highly prejudicial to the ~

plaintiff and was properly. excluded. A spontaneous ex- ”

clamation offered to prove the truth of the matters’ asserted

- may be admitted in evidence under proper circumstances —

, as an exception to the. hearsay rule. The fact that a state-

ment is uttered by an unidentified bystander is not fatal.

_ However, as stated in 6 Wigmore on Evidence (3rd Ed.)

155, Section 1751: :

_ reasons, the statement was inadmissible.

25

“Upon the ordinary principle applicable to all testi-

monial evidence *. * * and therefore to hearsay ’state-

ments offered under these exceptions * * * the

declarant must appear to have had an Opportunity to

observe personally the matter of which he speaks.”

This element was the crucial point in two Ohio cases,

"as it is in this case. In The New York, Chicago & St. Louis’

Ry. Co. v. Kovatch, 120 O. S. 582 (1929), the statement of

an unidentified girl that “The engine runned over David”

was admissible. The Court found from the evidence that

_,at the time of the accident the child was standing at a point

where she could have observed the accident. However, in

": Potter v. Baker, 162 O. S. 488 (1955), the statement of an

unidentified man, “God, he rushed the light,” was held to

be inadmissible since (3) there was no evidence to show

_ that the declarant had an opportunity to observe person-

ally the occurrence asserted in his statement.

Whether or not Mr. Christmas reported accurately

and correctly the statement he heard is immaterial. As in |

the Potter case, supra, what is decisive is that there is no

evidence to show that this bystander personally observed

_ a boy pushing the emergency Stop-button. The unidenti- |

fied bystander could have based his statement on what

. Someone else had told him. Certainly Mr. Christmas does

_ not know whether this. bystander saw a boy push the Stop-

button. Further, the surrounding circumstances do not |

demonstrate the spontaneity of this declaration. For these

The fundamental question presented by the defend-

ants in their motions is whether the doctrine of. res ipsa .

Joquitur should have been applied to Sears, Roebuck & Co.

and Otis Elevator Company. Res ipsa loquitur isarule |

of evidence which permits a jury to infer from the evi-

dence that defendant was negligent. -The inference arises

roar Wry eine gee: 7

?

5 re eo

26 . -€ on

. upon proof that ‘ds ae eee causing the injury was

in defendant’s exclusive control, and that the atcident was

“one which ordinarily would not occur.in the absence of

negligence: Both defendants maintain that under Ohio

law the inference does not arise in this case. _

‘With reference to the question of control; the Ohio

2, cases cited by the defendantszdo not preclude the applica-

i of the doctrine of res ipsa loquitur in this case. As to

._ the defendant Sears, it owes to an invitee using its escala- :

tor the duty to exercise the highest degree of care to which °

the situation is reasonably susceptible. May Department

Stores: Co. v. McBride & Sons Co., 124 O. S. 264 (1931); .

Welch v\The Rollman & Sons: Co., 10 O. App. 515 (1942).

This duty tannot be delegated to an independent contrac-

-- tor. Richman.Bros. ab ». Miller, 131.0. S. 424. (1936); > ~

: b

The Cincinnati & Suburban Bell Tel. Co. v. Eadler, 75 O..

App.’258 (1944); The Globe Indem. Co. v, Schmitt, 142

| O. S.-595 (1944).

(4) The cases of Keupar v. Procter & Gamble Co. _

oo 160 0. S. 489 ( 1934) , where a-man’s s hip was scratched by

a small piece of wire imbedded in*a. bar of soap, and Hug-

gins v. Morrell & Co., 176 O. S. 171 (1964), where a jar of

pig’s feet exploded, do not substantiate the Pagition of the

defendants. . nat

‘In the recent: Huggins devietia, supra, an exploding a

bottle case, the Court quoted with approval Atwell v.

Pepsi Cola Bottling Co. of Washington, D. C.,,152 A. 2d

>. 196, and Joffre v. Canada Dry Ginger Ale, Inc., 222 Md. 1,

158, ER “2d 631. In the Atwell case, the plaintiff joined both

the bottler and the retailer of a carbonated beverage, and

____the Court said: \

“Appellant in effect juni that the doctrine is

_ applicable against both appellees; that it was the duty

_- of each appellee to come forward with proof that it

was free from negligence; and that she should be re-

7

> .

oy ®

27 Ps |

lieved of her burden of showing that the accident was

. more probably the fauligof one than the other. This

~ . might be true if appellee’s possession of the bottles

“was joint, but it was not; it was successive * * *.”

<

The Ohio Supreme Cont quoted this — from os

the Joffre case:

“Generally it has ‘been held that 1 res ipsa . is not appli-

_ cable against multiple defendants ‘where it is not

shown that their liability was joint or that were. .

in joint or exclusive control of the injury producing

factor, or where the wrongdoer, among several, _pos-

sible, was not identified.” _—

. Cases like the Krupar dase and the Huggins case,

where the plaintiff was injured and sued both the manu-

facturer and the retailer, are distinguishable from the

instant case in that here Sears and Otis did not have suc-

cessive control but both jointly had exclusive control over.

the escalator. : :

Neither Péinberg v. Hotel Olmsted Co., 152 0. S.-417 -

(1949), nor Parise v. Otis Elevator Co., 100 O. App. 200

(1954), suggests a different rule. In Feinberg the Court

. found from the evidence that- the defendant did not have

exclusive control over the elevator. It’ was the opinion of

__ the Court that res ipsa loquitur was not applicable when

_ the evidence disclosed that the plaintiff and his assistant

used a freight (5) elevator for the purpose. of removing

the door of a refrigerator which. was too large and heavy

for the elevator, and that the defendant had not partici-

pated in the undertaking. In the Parise case the evidence

disclosed no exclusive control over the elevator by Otis,

and further disclosed that the employees of Isaly Dairy had

tampered with the safety devices on many occasions.

The Ohio cases dealing with the question of exclusive

control are not in conflict with Enslein v. Hudson & Man-

Spies ay

.

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.

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| 28 | se

hattan R. R., 165 N.’Y. S. 2d 630 (1957), aff'd. in part and

rev'd. in part, 176 N. Y. S. 2d 70 (rev'd. as to damages),

aff'd. 6 N. Y. 2d 723, 158 N. E. 2d 504 (1959). There the

up escalator suddenly jerked and lurched,. throwing and»

injuring the plaintiff. Res ipsa was applied against both

the lessee Hudson, who managed and controlled the esca-

~Jator, and Peelle Company, which likewise controlled and

maintained it. The trial court found and the reviewing

_ courts affirmed that Hudson owed a nondelegable duty of.

keeping its equipment reasonably safe, and therefore re-

tained control along with the defendant Peelle. Such con-

_ -trol of the escalator was either Aimultaneous or in neces-

‘sary rotation with defendant Hudson. The trial court said:

It is not essential for the application of res ipsa doc-

trine that there be but a single person in control of

that which caused the damage * * * where, as here,

~'some or all of the interdependent defendants are in -

control of an : instrumentality which is involved in an

- accident due to its improper operation, they are there-

; upon called upon to explais such operation.”

In reaching a similar conclusion, ‘the Court in Vanda-

griff v. J. C. Penney Co., 39 Calif. Rep. 671 (1964), said in *

applying res ipsa to. defendant Westinghouse:

“Westinghouse ‘had contracted, according to J. C.

Penney Company’s cross-complaint, to use all reason- °

able care to maintain the electric stairways in proper.

and safe operating condition. The amount of caution

required increases or decreases as does the danger

that reasonably should be apprehended. It cannot be

said that a reasonable inference could not be drawn.

that Westinghouse had been negligent under me cir- -

cumstances.”

(6) The reason for the doctrine i is to permit the jury

to infer negligence under circumstances where the exist-

ence of defendant’s negligence is more reasonably probable

Y

29

even though the plaintiff cannot deciciatens cial acts

of negligence. To place on the plaintiff the burden of show-

ing which. of two defendants caused the injury under cir-

‘cumstances where both defendants either owned, man-

aged, maintained or controlled the dangerous machinery

-would be to preclud¢ the application of the doctrine of res

ipsa at a time when the plaintiff needs the doctrine the. .

most. This would frustrate the very purpose and reason

for uSing the doctrine. Such-a result would be blind to

modern day practices and to the @ high degree oF care due

‘ to the plaintiff.

Here both defendants had Loint iad simultaneous con-

trol, and therefore the doctrine is applicable to both.

There was no evidence to show that the escalator was.

“stopped by pushing the Stop-button. Further, not only

did the escalator stop, but the jury found that it stopped

with such force that plaintiff Mary Domany was injured.

. According to her testimony, Mary Domany does hot know

why the escalator stopped; she only knows it stopped sud-

denly and with force sufficient to throw her down. It was

for the jury to decide whether this was due to defendants”

negligence.

In Fink v. N. Y.C. RR. Co., 144 O. S. 1 (1944), the

plaintiff, a passenger ona train, was injured when the train

was derailed. The plaintiff proved the train was going 80

MPH when it hit a car. The Court applied res ipsa, saying

that it was for the jury to infer negligence and not, the

Court. Then the Court said: :

“It would be a strange ‘doctrine to say that in a jury

trial the court is not permitted to draw the inference

' of negligence in a case which calls for its application

of the rules and then to say that the court could de-

termine as a matter of law that the inference had been

rebutted or destroyed by an explanation offered by-

the defendant of the circumstances of the occurrence.”

%

“2

M «

ANCOR RRA cov heae £)

| | 30 2

(7) If the defendants could successfully maintain that -

they did not have exclusive control because the escalator

“was equipped with a Stop-button and that the escalator :

may have been stopped by anyone using the emergency

Stop-button when there was no evidence whatsoever that

.anyone had pushed the Stop-button, then the doctrine of

res ipsa loquitur again could rarely be satis successfully

in an escalator case.

Finally, the. accident here + was one which ordinarily

does not occur in the absence of negligence. For cases

where the doctrine applied in situations where the plaintiff

was injured as a'result of an escalator’s jerking or stopping

see Welch v. The Rollman & Sons Co., 70 O. App. 515

(1942) ; Liebow v. Fones Store Co,, 303 S. W. 2d 660

(1957) ; Sibley v. Otis, 114 N. Y. S. 2d 177 (1952) ; Enslein

v. Hudson & Manhattan R..R., supra. ~

The jury here was at liberty ‘to find the slit fact

one way, or the other as they were impressed by the evi-

dence. The weight of the inference, as well as the weight of

_ the explanation offered to meet the inference, was for the .

determination of the jury, Glowacki v: The Northwestern

| Ohio Ry. & Power Co., 116 O. S. 451 (1927).

_ Here for an unexplained reason‘the escalator stopped. .

It stopped with such suddenness.and with such force that

plaintiff Mary Domany was injured. Sears’ duty to the

plaintiff was to exercise the highest degree of care, and this ~

duty’ was nondelegable. -As the precautions which the

defendant must take to avoid injury increase, there is a

proportionate increase in the number of available hypoth-

eses involving negligence: While the duty owed to the

plaintiff by the defendant Otis was. one of ordinary care,

nevertheless if was for the jury to decide, whether the

probable cause of the stopping was due to the mechanism

of the escalator. The mechanical parts of the escalator were

31

either in the exclusive control of Otis or in the joint and

exclusive control of both defendants. Normally, unless

there is negligence, an escalator does not stop so suddenly

and with such force as to cause a passenger to be thrown

_- down and injured. ‘

(8) The defendants also claim the Court erred in re-

- fusing to charge the jury on the issue of whether Andrew

Domany was lawfully the husband of Mary: Domany. The

'. basis for the claim was the admission by Andrew Domany

_ that he’filed for a divorce in 1953 but withdrew his petition

when his wife, then living in Europe, contested the divorce

_action. However, Andrew Domany testified that his

European wife obtained a divorce and that, upon receiving

a letter notifying him of the divorce, he married Mary :

Domany-in a formal ceremony on August 17, 1957.

Concerning the validity as between prior and sub-

sequent marriages, the majority view is to the effect that

the presumption of ‘validity of the subsequent marriage

overcomes the presumption of continuance of the previous ,

marriage.

. While Ohio follows an opposite rule when the question

arises between the spouses of the different marriages, it

would seem that Ohio would follow the majority rule

should the question arise as against third parties. See 35

' O. Jur. 2d, Marriages, Section 71.: In a case such as this

one, wisdom and fairness demand that the second marriage

be presumed valid. There was no evidence to show that |

Andrew Domany was not divorced from. his European

wife. Upon the evidence in this case, the Court did not err

in refusing to charge the jury on the issue as to whether

Andrew Domany was the husband of Mary Domany. |

_. The plaintiff Andrew Domany in case No. C 62-881

alleged in his. complaint that “The plaintiff, Andrew Dom-

any, is now and was at all times hereinafter mentioned:

ROR n oe Pen Cette] a eee een £

OI tC ae ne Da ae eute

AS: eed, Segal

Rate A AND CE BIN 6 he OS ay. tee

.

ae |

the husbarid of Mary Domany.” The defendants filed s sepa- .

rate answers in which, for want of knowledge, they denied

this allegation of the plaintiff. Upon this state of the plead-

ings the defendants offered no evidence except the cross+

examination of the plaintiff Andrew Domany. The cross-

| examination affirmatively (9) established his marriage to

Mary Domany, and without any other evidence to the

contrary, there was no issue to be submitted to the jury.

The defendants finally contend that the Court erred in

refusing to submit to the jury the issue as to whether Mary

Domany was contributorily negligent. There was. ab-

solutely no evidence offered by the defendants that Mary

Domany, confronted with a sudden and unexpected emer-

gency, did not exercise that degree of care which an ordi-

narily prudent person would exercise under similar cir-

cumstances. The evidence offered by the defendants as to

the stopping distance of the escalator was not sufficient to

raise the question of contributory. negligence. The evidence

disclosed that Mary Domany, through no fault of her own,

was placed in a dangerous situation, and that she exercised

the care required of her under the circumstances. Mary

- Domany testified in effect that she was holding the hand

rail, and that she was exercising the degree of care required

‘of her. The mere fact that she fell is not a sufficient basis

for submitting the question of ery eeu to

“the jury.

It was for the jury to iid whether, from a the

facts, they would infer negligence on the part of er or -

both defendants. This the jury did in favor of the plaintiffs

against both defendants. The jury’s. corermination and

verdict will not be disturbed.

- The motions of the defendants for ae notwith-

; standing the verdicts will be overruled:

. The motions of the defendants for a new trial will be

overruled. 2

33

OPINION OF THE UNITED STATES COURT OF reas

FOR THE SIXTH CIRCUIT.

(Decided December 9, 1966.)

Before: O’Sunuivan, Circuit J udge, Crciz, Senior

Circuit Judge, and Maruss, Senior District J udge.* |

Cecit, Senior Circuit Judge. Mary Domany and her

alleged husband, Andrew Dip plaintiffs-appellees

herein, brought these actions a¥ainst Sears, Roebuck &

Gompany and Otis Elevator Company, defendants-appel-

~ ants, hereinafter referred to.as Sears and Otis, respective-

ly, in the United States District Court for the Northern _

District of Ohio, Eastern Division. They recovered judg- |

ments in the amounts of. $175,000 and $65, 000, _respec-_

tively. Sears and Otis each appealed. |

Jurisdiction is invoked on the basis of diversity of

citizenship. Section 1332, Title 28, U. S..C: Mary and

Andrew Domany, hereinafter referred to as plaintiffs, are

residents of Ohio. Sears is a corporation organized in New |

- York with its principal: place of business in Chicago,

Illinois.. Otis is a corporation organized in the.state of New

Jersey, with its principal place of business in New York

City. The substantive law of Ohio is applicable. ~ R.

Co. v. Tompkins; 304 U. S. 64. |

The plaintiffs’ claims arise out of an injury to Mary -—

Domany resulting from the abrupt stopping of an escalator

in a Sears store located in the Southgate Shopping Center

in Maple Heights, Ohio. On November 18, 1960, Mrs.

Domany was descending from the second to the first floor

of the Sears store when the escalator upon which she was

riding came to a sudden stop: She fell several steps:to the

floor below. Mrs. Domany weusiecie a ruptured fascia’

* William C. Mathes, Senior District Judge, Southern Dis-

trict of California, sitting by designation.

nit 1 tahoe AIM hn ih stthnt nie it. tins, Senda

34

~ of one of the muscles of her right thigh and a contusion in.

the same area. At the time of her fall, Mrs. Domany

was assisted by a lady employee of the store. She was

able to walk.and on the advice of the store security officer,

she was taken by her husband to Suburban Community

Hospital. She was treated at the hospital and released the

same day. The following day, she saw her own doctor.

Her physical injury was healed in a month. Sometime

_ after the accident Mrs. Domany went to a psychiatrist who

testified that she suffered from traumatic neurosis as a

result of her fall.

The escalator seiiued in the ‘seslens was gens

from, arid installed by,. Otis. The escalator was serviced .

and maintained by Otis under a contract with. Sears which .

provided that its ‘possession and management were ex-

.Clusively in Sears. The pit or place where the escalator

.. mechanism was housed, while not locked, was under the

exclusive control of Otis. Pursuant to this contract, Otis

inspected and serviced the escalator at the Sears’ store

every Monday morning. In addition, Otis would respond

to calls from Sears for service. The last inspection prior

‘to the accident was made by Otis on Monday, November

14th. The escalator was found to be functioning properly

on this inspection.. The only service that Sears, through

its employees, performed in connection with the escalator

was to start and stop it at the beginning and end of each

day. In accordance with Ohio standards, there were emer-

gency stop buttons at the top and bottom on the escalator.

. The apparent explanation for the stopping of the escalator

is that some unauthorized person pressed the emergency

stop button. Without calling Otis for service, an employee

of Sears restarted the escalator after the accident. Otis

_ found the escalator to be functioning properly, on the next

scheduled inspection, the following Monday.

Si aR ors a

35

Plaintiff, Mary Domany,. sought to recover damages

for the injuries she sustained as a result of. the accident.

Her alleged husband, Andrew Domany, sued to recover

expenses paid by him as a result of his wife’s injuries

and for damages for loss of consortium. Otis and Sears

were sued jointly. The first cause of action of each plain-

tiff was based on res ipsa loquitur and the second one on

negligence. The trial judge submitted the case to the jury

on. both causes of action.

Both Sears and Otis claim that the trial judge erred

in not submitting the issue of contributory negligence of

the plaintiff, Mary Domany, to the jury. The ‘trial judge

instructed the jury, “There being no proof that Mary

Domany did anything improper while on the escalator, she

is not guilty herself of any negligence * * *.”

It isa fundamental rule of our jury system that where

there is.a question as to the existence of certain alleged —

facts, the function of determining such facts rests with the’

jury and riot the.court.: | ee

!

“Wie note the established rule that i in the face of a

motion to direct the jury to return a verdict for one of

the parties to an action, * * * the court must construe

the evidence most strongly in favor of the party

against whom the motion is made, and, where there’

is substantial competent evidence to support his side

of the case, upon which reasonable minds may reach

different conclusions, the motion must be denied.

Neither the weight of the evidence nor the credibility

_ of the witnesses is for the court’s determination in dis-

posing of such a motion. ” Durham v. Elevator Co.,

166 Ohio St.*31, 36. See also Hilleary v. Bromley,

146 Ohio St.. 212; Botto v. Fischesser, 174 Ohio St.

322.

In considering the case most fewveeubhy to the party against

whom the motion is made, the court is required to take

. gf

ink ies a hc alte a Ke 609 a i ol tates 2

s $

OT ITER Fete ee eS

36

into account any reasonable inferences that may be drawn

from the facts in evidence. Purdy v. Kerentoff, 152 Ohio»

St. 391, Wilkeson v. Erskine & Son, 145 Ohio St. 218.

There was evidence that there were signs clearly

visible at the approach to, and on, the escalator in question,

cautioning. passengers to hold the handrail. An elderly

man who was below Mrs. Domany on the escalator walked

off the escalator after it had stopped short and was not

injured. There was testimony by those who performed tests »-

on the escalator to the effect that by holding onto the hand-

rails they were able to maintain their balance. While the

plaintiff, Mary Domany, testified that she was, holding

onto the handrail at the time of the accident, the jury

might well infer that she was not. As the trial judge said

in his: charge, “You are not required to believe thé’ testi- .

mony of, any witness simply because he or she was under

. oath. You may believe or disbelieve any witness wholly,

or in part.”, Such an inference would be an immediate

inference from the facts proven and would not be predi-

cating one inference on another inference. The rule in

Ohio .was announced in McDougall v. Cartage Co., 169

Ohio St. 522, 2nd Syl., as follows:

“The only inferences of fact which the law recog-

_ nizes are immediate inferences from facts proved,

but a given state of facts may give rise to two or more

inferences, and in such.case one inference is not built

upon another but each is drawn separately from the

same facts.”

The district judge was in error in failing to submit the

issue of contributory negligencé of the plaintiff, Mary

‘Domany, to the jury.

One of the claims made by Sears on this siti is that

Andrew Domany was not the husband of plaintiff, Mary

Domany. Sears claims that the trial judge erred in not |

37

directing a verdict in its favor on this issue or in the al-

ternative in not submitting the question to the jury.

The plaintiffs entered into an alleged common law

marriage in 1952. At this time, plaintiff, Andrew Domany,

had a wife and three children living in Europe. He testi-

_ fied that he then believed that he was divorced from this

wife. However, in 1953 he filed a suit for divorce in

Cleveland, in which he alleged that he had.a wife living in

Europe. The wife in Europe filed an answer and contested

the action. No divorce was granted. There was no further .

evidence that the European marriage was ever dissolved. _

On August 17, 1957, the plaintiffs had a ceremonial mar- ,

riage in Angola, Indiana.’ The foundation of Mr. Domany’s

claims for expenses and damages for loss of consortium

is that he was the lawful husband of plaintiff Mary

-Domany at the time of the accident. Without such a law-

ful relationship there can be no recovery by plaintiff An-

__ drew Domany.

We cannot find from the record that counsel for Sears

_ specifically raised the question of the validity of plaintiffs’

marriage in the motion for a directed verdict at the close of

plaintiffs’ testimony or in the motion for a directed verdict

- at the close of all the testimony. Counsel did request

before argument an instruction’ in writing, to have the

question submitted to the jury. The trial judge granted

this _ request at the time it -was presented and counsel

claims to have argued the question to the jury. The only

reference we:find to the subject in the arguments is Mr

1“You are instructed that before the plaintiff, Andrew

Domany, may recover damages for the medical and hospital ex-

penses in connection with the care of Mary Domany, or for the

loss of her services, society and companionship or any expenses

reasonably appurtenant to such loss, he must first establish by a

preponderance of the evidence that Mary Domany was his lawful

spouse at the time such expenses were incurred or such loss

suffered.” (Sears’fequested instruction No. 14.)

~~ - dn Peon

Gallagher’s statement, “This was during a period when

there was a mixed up marital status, and I don’t care to

* get into that.” The judge did not include the requested

instruction in his general charge. He not only did not give

the instruction but he assumed throughout the instruction

that the plaintiffs were husband and wife. He said, “If you

find the Defendants, either one or both of them, were

negligent, and that such negligence was the proximate

‘ cause of Mary Domany’s injuries, you will return a verdict _

in favor of Plaintiff Andrew Domany. ws

Counsel for Sears.called the omission 1 of the requested

oe charge‘ to the. attention of the judge who said,

“I spent all Friday night and part of Saturday

- morning, and we finally got the pleading out, and you

, admitted it. My conclusion’is you not only did not

" affirmatively defend on it, but you admitted it. It may

have been a mistake in‘ the way: you worded your

answers. It ‘looks like it, but. the ultimate result is

-- you don’t deny Sg :

We think the trial. Judge might very ual have con-

sided that counsel had abandoned the issue when he did

not argue it to the jury. Under. these circumstances he

was justified in not giving the charge. However, after |

granting the instruction the trial judge.should have ad-

_ vised counsel of his reasons, when he decided not to give it.

Counsel for Sears did raise the question on motion

‘for judgment»notwithstanding the verdict or for a new

trial. Error was claimed’ for failing to. give request to

charge No. 14, the instruction in question. In denying the

motion, the trial judge said on this point, oe

“The defendants also claim the Court erred in

‘refusing to charge the jury on the issue of whether -

Andréw Domany was lawfully the husband of Mary

Domany. The basis for the claim was the admission

ahs Andrew ‘Domany that he filed for a divorce f in 1953

ES a hr ean

but withdrew his petition when his wife, then living

in Europe, contested the divorce action. However,

Andrew Domaniy testified that his European wife

_ Obtained a divorce and that, upon receiving a letter

_ notifying him of the divorce, he married Mary Domany -

_ in a formal ceremony on August 17, 1957.

“Concerning the validity as between prior and

subsequent marriages, the majority view. is to the

effect that the presumption of validity of the subse-

quent marriage overcomes the presumption of con-

tinuance of the previous marriage. a

_ “While Qhio follows an opposite rule when the

question arises between the spouses of the different

_mmarriages, it would seem that Ohio would follow the

- majority rule should the. question arise as against |

third parties. See 35 O. Jur. 2d, Marriages; Section

-_ 71. In a case such as this one, wisdom and fairness

demand that the second marriage be presumed valid.

There was no evidence to show that Andrew Domany

was not divorced from his European wife. Upon the

- evidence in this case, the Court did not err in refusing

to charge the jury on the issue as to whether Andrew

Domany was the husband of Mary Domany.

_ “The, plaintiff Andrew Domany in case No. C 62-'

881 alleged in his complaint that ‘The plaintiff, An-

(drew Domany,.is now and was at all times herein-

ter mentioned the husband of Mary Domany.’ The

defendants filed separate answers in which, for want

of knowledge, they denied. this allegation of the plain-

tiff. Upon this state of the pleadings the defendants

offered no evidence except the cross-examination of |

the plaintiff Andrew Domany. The cross-examination

affirmatively established his marriage. to Mary

.Domany, and without any other evidence to the con-

tragy there was no issue to be submitted to the jury.”

While we do not find that the trial judge.erred in re-

fusing to give requested instruction, No. 14, we cannot

- .

MB. tlw we nt, EAS 8 Bi at ID alt ti hey dicta ode to Aas ik

Sih ithe aiieek We ee a 8

40

__agree with the statement of facts and law in his memo-—

~“randum denying Sears’ motion for judgment notwithstand-

ing the verdict.

We have examined all the evidence* on the wine of

the plaintiffs’ ‘marriage and we do not find that Andrew

Domany testified that his European wife obtained a divorce —

and that he received a letter notifying him of the divorce.

He did testify that he married Mary Domany ‘in a formal

ceremony on August 17, 1957. .But this does not dispose —

of his first marriage. In his statement in the general charge, ~

the judge said that the ‘marriage was admitted and that

Sears did not defend on it affirmatively. The pleadings

as referred to by the judge in the portion of the opinion

above quoted raise the issue. Andrew Domany in his

amended complaint alleged that he was at all times the

husband of Mary Domany, and Sears in its answer, for

want of knowledge, denied it. We find nothing i in the rec-

ord admitting a valid marriage.

- 28Q, At the time you ‘began to live with Mrs.. Domany in

February, 1952, were you then divorced’ from your wife in

Europe? .

“A. I was divorced because my wife—my' ex-wife, she in

Czechoslovakia—give to the court—

“Q. Did you believe you were then divorced? ~

“A. Yeah. .

_“Q. I see. Then is it the fact, Mr. Doniany, that you filed for

divorce — in Cleveland in 1953, a year after?

- “A, Yes

“Q. Yes, and is it the fact that your wife in Europe filed an

answer and contested the divorce?

“A. (No response). F

“Q. May I just have an answer to it? Did she file an answer

to that petition for a divorce contesting it, ‘sir?

“The Court: Do you understand what he means? .

“The Witness: No, I don’t understand.:

“Q. I see. Did you get a divorce from her in 1953, at that

time; from your wife in Europe?

“A. No.

“Q. You did not. All right. Now, did you have three children

living. a from your first marriage?

“A es ,

4

ae a ee Ne Te eed . V anianobilnis Saiebabatetig ‘

‘ ° Al ;

We think, under Ohio law, the issue was further raised

by the evidence. Andrew Domany testified that he had a

wife in Europe. He brought an action for a divorce. No

divorce was granted. There is no further evidence con-

cerning a divorce.from the European wife. Under Ohio

law that marriage is presumed to continue until proof of

its termination.

In the event this issue is raised in a retrial of the case,

we discuss the Ohio law on the subject of subsequent mar-

Tiages where there is a prior undissolved marriage.

There are two presumptions in law concerning the

marital status of individuals. The rule followed in the

majority of jurisdictions is that a marriage is presumed

to be legal until proven otherwise. A corollary to this is

the additional presumption that the first marriage has

ended in a legal divorce. Under the minority rule which is

' followed in Ohio, it is presumed that once a marriage is

entered into it continues until proof of ‘dissolution. To

complement this presumption, it is further presumed that

there was no valid divorce in the first marriage in the ab-

sence of positive proof. In re Clark’s Estate, 69 Ohio Law ;

Abs. 435; Industrial Comm. v. Dell, 104 Ohio St. 389;

Evans v. Industrial Comm., 166 Ohio St.. 413; Dibble,

v. Dibble, Admzx., 88 Ohio App. 490; Evans v. Reynolds, 32

Ohio St. 163. es

A conflict arises between ‘these two presumptions

when, as in this case, a spouse of a first marriage enters

into a second marriage, while the first spouse is still living,

and no evidence is presented as to the dissolution of the _

first marriage. Under the majority rule, the legality of the

subsequent marriage would be presumed, in spite of the

fact that a spouse of the former marriage ‘was still living.

In Ohio, under the minority rule, it would be presumed

that the status of the parties to the first marriage continued ©

42

and ~< oo would be upon the lie claiming the

validity of the second marriage to overcome the presump-

tion. Evans v. Reynolds, supra, was an early Ohio case ©

on the subject. There the defendant “married” the de-

ceased at a time when she had a husband living in England.

She claimed that this first marriage was void under the |

laws of Great Britain, but she offered no evidence to sub-

stantiate her claim. The court held, at p. 165,

“But that marriagé (the first offe) must be pre- —

sumed to be lawful till some enactment which annuls —

it is produced ane parenes by those who deny its law-

fulness.”

The district judge said, in his memorandum quoted

above, “it would seem that Ohio would follow the majority .

rule should the question arise ‘as to third parties. See 35

O. Jur. 2d, Marriages, Section 71. * * * There was no

- evidence to show that Andrew Domany was not divorced

from his European wife. The cases cited by Ohio Juris-

prudence do not support the statement of the text, nor _

have we found any in Ohio that do. In Machransky v.

Machransky, 31 Ohio App. 482, the court recognized the

' validity’ of a Jewish divorce obtained in Russia, and

therefore there was no legal impediment to the second

marriage in Olijan v. Lublin, 88 Ohio Law Abs. 393, af-

firmed, 143 Ohio St. 417, the court merely commented

that Ohio followed the minority approach, after stating

that such rule was inapplicable in the given case because

-there was no valid. marriage between the deceased and

the alleged first wife. Furthermore, in Evans v. Industrial

' Comm., supra, the court applied the Ohio rule that favors —

the validity of the first marriage, in a case in which there

was no indication of a competing claim by the first ‘wife.

The attempted distinction on the ground that Ohio

would follow a different rule where a third party is the

/

f

43 >

contestant is not valid. Just what is meant by third party

is not clear. In Evans v. Reynolds, supra, the contestants

were collateral heirs, next of kin, of Morgan Reynolds,

deceased. It would seem that they were third parties

-as distinguished from parties. to the marriage.. In

Evans v. Industrial Comm. cited above, the Com-

mission refused to pay wives on the ground of prior

undissolved ‘marriages. The Commission was a third party

as far as the marriages were concerned. There were two

- eases, In one the wife had a prior marriage and in.the

other the deceased husband had a prior marriage. In

neither case was there any evidence of a dissolution of

the marriage. The district judge stated the ‘proposition in

reverse when he said, “There was no evidence to show

| that Andrew Domany was not divorced from his European

wife.” The proposition, under Ohio law, should have been.

that there was no evidence that a divorce was obtained

from the European wife either prior to or after the sec-

ond marriage. ad

The Federal District Court i is bound to follow the

Ohio rule that places the burden of proving the dissolution

of the first marriage on the party asserting the validity

, of the second - ‘marriage. In this case that burden is on

Andrew Domany once the issue is raised as to the validity

of his marriage to Mary Domany. With the burden being -

on Andrew Domany, Sears was not required to affirma-

tively defend by way of offering evidence. It: appears to us.

that there was sufficient, question about’ the’ validity of

_Andrew Domany’s marriage to Mary to put him on proof -

of the dissolytion of his first marriage. If that first mar-_

riage’ was terminated by divorce or otherwise, he should

have no difficulty in establishing that fact. In the interest

_ of justice, the appellants should not be exposed to a $65,000:

_ judgment by a sae whose right to recover is, based o on

Er cel 4

SS - » per “ “4 “

ALGAE DEDEDE LARISA NN ERIE Nn aN als iit Gi aatllcest tatlhigeovran sles suteitoent eteinivad.

(Ad

a valid marriage to Mary Domany, absent proof of the

termination of his prior valid marriage to a wife now living

in Europe.

In a retrial of this case, if counsel desire to pursue

this issue; it should be clearly presented/and the trial judge

should follow the Ohio rule as here outlined.

Since this case will be remanded for retrial, we pro-

ceed to discuss other questions which will necessarily be

- involved in another trial. Otis claims that a verdict should .

have been directed for it, since its only ,connection with

either’ Sears or the. escalator was its ‘contract with Sears

~ to service the escalator.

Ohio no longer requirés privity of contract. etenen

‘a manufacturer and a consumer in order to hold the manu-

facturer liable for negligence in manufacture. Thrash v.

U-Drive-It Co., 158 Ohio St. 465; Witherspoon v, Haft, 157

Ohio St. 474. In 1956, the Supreme Court of Ohio abro-

gated the rule of privity with reference to maintenance

contracts. ;

“* * * where’one, for a consideration, poe to

provide an inspection or examination service for the

mechanical equipment owned -or controlled by an-

other, the former is thereby charged with the duty

of. performing those services in a reasonably proper

‘and efficient manner, and, if such duty is negligently

or carelessly performed whereby injury occurs to a

blameless person lawfully using such equipment, such

injured person has a right of action directly against

the offending contractor. Liability in such instance is

not dependent uporany contractual relation between

the person injured and the contractor but on the fail- .

- ure of the contractor to exercise-due care in the per- -

' formance of his obligation.” Durham v. Elevator Co.,

supra, p. 37. See also, Dickerson v. Shepard Warner

ncaa Co., 287 F.2d 255 a A. 6). :

Pe on aes Be ene ne

4. °°

Under this rule Otis can be held liable to the stall

for any acts of negligence on its part proximately causing

injury to the plaintiffs. In the second cause of action, the

plaintiffs charge Otis with acts of negligence which relate

to nlaintenance and service of the escalator, particularly

permitting the escalator to be i in such condition as to cause

it to stop suddenly. There was conflicting testimony with

reference to safe stopping distances for escalators. This was

under the management and controls of Otis and was a

proper question. to be submitted to the jury. _

We come now to the question of res ipsa loquitur. -_

Both Sears and Otis clairh that the court erred in sub-

mitting the case to the jury on res ipsa loquitur.

Otis and Sears both agree on the requirements of the

doctrine of res ipsa loquitur but each denies that it. is -

applicable to the facts. of this case as related to it. In

Ohio, res ipsa loquitur is a rule of evidence which permits,

but does not require the jury to infer negligence in certain

situations. It does not shift the burden of proof to the de-

fendant, and the plaintiff is not entitled to a directed ver-

_ dict in his favor if the defendant presents no rebuttal evi-

dence. There are two prerequisites for the application of

the doctrine. The instrumentality causing the i injury must

be under the “exclusive management and control” of the _

defendant, and the accident must be one that would not

ordinarily occur except in the absence of due care. Fink.

v. N. Y. C. Rd. Co., 144 Ohio St. 1.

Otis argues that under the rule of Durham the neces-

sary negligence that must be proved cannot be based on

_ the doctrine of res ipsa loquitur. In support of this claim

two cases are cited. Parise v. Otis Elevator Co., 100 Ohio.

App. 200; McDonald v. Elevator & Machine Co., 60 Ohio

App. 185. In these cases the doctrine was not applied for

the reason that it was held that the elevators were not

46

within the exclusive management of the defendant main-

tenance companies. These cases can be distinguished from

the case at bar on the basis that the owners mote their

| own adjustments to the elevators. ,

' _° Otis argues. that no showing was made —— ac-

-. gident would not have occurred except in the abSence of

| ‘due care. This argument is based upon evidence whi ae

j tended to demonstrate that someone pushed one of. the :

stop buttons Idcated at either end of the escalator. Claim-

on ing that this was the specific cause of the stoppage,.or that

: it was, therefore, equally inferable that the accident was

~ ‘caused by someone other than the defendant, Otis argues:

that res ipsa loquitur is inapplicable. Loomis v. Toledo

Rys. & L. Co., 107 Ohio St. 161; Glowacki v. Ry. & P. Co.,

- 116 Ohio St. 451; Price v. Dot’s Super Market, Inc., 177

Ohio St. 122. However, the question involved is move —

than one of determining why the escalator stopped, but

‘it is determining why the escalator stopped ‘with such

-abruptness as to cause plaintiff to lose her balance. Otis’

argument fails to meet this point. Furthermore, if the

jury could initially draw a valid inference of negligence, |

the court should not be permitted to determine that the

explanation offered by a defendant, as a matter of law,

exonerates him from fault. The inference of negligence

remains. Fink v. N. Y. C. Rd. Co., supra; Weller, Exrx.

*. y. Worstall, 129 Ohio St. 596; Glowacki v. Ry. & P. Co.,

supra. The plaintiff is not required to exclude all possible

causes of the accident. Nanashe v. Lem Mon, 82 Ohio Law

‘Abs. 97. Viewing the evidence most favorably to the plain-

tiff, as the court must do in determining whethkr res ipsa

loqujtur applies, (Howard -v. Pennsylvania Rd. Co., 43

Ohio App. 96,) the court correctly held that the jury

_ could reasonably infer that it was probable that the acci- —

|

Pte les Ve id tin Siti nlf Pt A in ei ls palette ERO y epee Bae eR Oe

: 47

dent would not have occurred if dye care had been ©

exercised. :

Sears and Otis each pean that the other had exclusive |

control of the escalator, so that the court erred in applying

res ipsa to each, and Otis further claims that the doctrine i is

not applicable where two defendants are being sued. aps

| When two or more defendants have adverse interests,

such that the action of one breaks the chain of causation’ |

which liriks the other defendants to the accident, res ipsa

loquitur has ‘not been applied. Huggins v. John Morrell ~

_and Co., 176 Ohio: St. 171; Price v. Dot’s Super Market,

Inc., supra; Parise v. Otis- Elevator Co., supra; McDonald

v. Elevator & Machine Co., supra. But where the possession -

and control is joint, Ohio has recognized that the doctrine

may apply, citing with approval the following quote from

Joffre v. Canada Dry Ginger Ale, Inc., 222 Md. 1, 158

A. 2d 631.

“¢k + + generally it has been held that res ipsa is

not applicable against multiple defendants where it

* is not shown that their liability was joint or that they

were in joint or exclusive control of the injury pro-

ducing factor, * * *.’” Huggins v. Morrell Co.; supra. ©

»Consequently, by establishing joint control, the trial court

was correct in applying res ipsa.to both. defendants.

. As a passenger on the escalator, ‘a common carrier,

Sears, as owner, owed plaintiff the “highest degree of care

of which the situation was reasonably susceptible.” The

May Dept. Stores Co. v.. McBride, 124 Ohio St. 264; Welch

v. Rollman & Sons Co., 70 Ohio App. 515. To permit Sears,

while owing the highest duty of care toward plaintiff, to

shift its responsibility to a maintenance contractor, would .

allow persons to contract away a duty imposed 7“ them

‘by law. 3

Sein trian pct iey Sais dai ile al pa eth nae ates

ini ipa ied anal ign lg idtita. 4

> Oe ae 5 OS

ret

ae ae

oe

a er en ct a LE oe en ee Ee

> sta ict Seed AES PLAIN (> ete 8:3 ania ach on

48

»“One who expressly or by implication invites

others to come upon his premises must exercise or-

dinary care to guard ‘them against danger, and to

that end he must exercise ordinary care to render

the premises reasonably safe for the. invitees; he

cannot . delegate this duty to an independent con- &

tractor.” 28 Ohio Jurisprudence 2d 371, Independent

Contractors, Sec. 27. (Emphasis added.)

Accord,. Richidond Brod. v. Miller, 131 Ohio St. 424; C.

& S. Bell Tel. Co. v. Eadler, 75 Ohio App. 258. Being un-

able to delegate its duty, Sears and:Otis must be considered

in joint control and management of the escalator. In the

alternative, if Otis be found to have exclusive management. ~

and control, its negligence would be attributable to Sears.

In considering whether res ipsa loquitur is applicable,

practical considerations of management and control, not

~--possession, are determinative. Schafer v. Wells, 171 Ohio

_ St. 506. It is not necessary that the defendants have con-

tinuing control and mangement, but merely that. there be

no irtervening control and that the defendant have the |

right to exercise such control: The question to be deter-

mined is whether it was probable that the defendant was

responsible for the negligence connected with it. Schafer’

v. Wells, supra. Inasmuch as. Sears only started’ and -

stopped the escalator, whereas Otis installed it, performed

all the maintenance and servicing, inspected it _weekly to

check its operational efficiency, and was, therefore, in a

position to discover any defect, it was proper to hold that

Otis had control and management of the escalator. -

Therefore, being the type of accident that would not

occur in the absence of due care, the court was correct in

applying the doctrine of res ipsa loquitur to both Sgars

* and Otis, either upon the theory of joint control, or upon

the theory that Otis was in control and its negligence was

49

attributable to Sears, because Sears owed a non-delegable .

_ duty to the plaintiff. .

Sears claims that it was error to ote the case to

the jury on both res ipsa loquitur and specific negligence.

The Ohio Supreme Court, in disapproving a dictum ren-

dered in Winslow v. Bus Co., 148 Ohio St. 101,° aligned

itself ‘with arenjety of American jurisdictions, by stat-

ing: 7 ,

“In our opinion, if the sliegations of the aetition

andthe proof in support thereof call for its. applica-. .

tion, the doctrine of res ipsa loquitur should be applied

even though the petition alleges also and evidence is

offered to prove specific acts of megngnane. ” Oberlin

v. Friedman, 5 Ohio St. 2d 1.

Consequently, the trial judge did ast err in submitting the

case to the jury on the doctrine of res ipsa loquitur and

specific negligence against both Otis and Sears.

The judgment of the District. Court is reversed and the

case is remanded for a new trial.

3 “The doctrine of res ipsa loquitur is not: applicable i in a case

where the petition and proof disclose that plaintiff had knowledge

of the facts and circumstances ——— the claimed negligence

of: defendant. e ' First ——

s c

. PS

; bad . . i ¢ r

aoe 50 '

:

AE ae EN eee

of Ohio‘and was argued by counsel.

: On ConsweRatTIon Wuenrror, It is now here ordered. :

and adjudged by this Court that the judgment of the said

“JUDGMENT OF THE UNITED STATES COURT OF , AP-

PEALS, CASE NO. 16,638, MARY. DOMANY v. OTIS

ELEVATOR COMPANY. — ;

(Entered 1 Deceriber 9, 1966. )

" APPEAL from the United States District Court for or the

Northern District of Ohio. ; Mics ait

‘Tus Cause came on to be heard on the record from

the United States District Court for the Northern District

0

District Court in this cause be and the same is hereby re-

<~ \versed and the case remanded for a new trial.

It is further ordered that Defendant-Appellant re-

cover from Plaintiff-Appellee the costs-on appeal, as

itemized below, and that execution therefor issue out of

said District Court.

Entered by order of the Court.

Cart W. Reuss,

Clerk. .

ed

Sr FUN te pitino We tl ee ct i a ans

ar Y

JUDGMENT OF THE UNITED STATES COURT OF AP-

‘PEALS, CASE NO. 16,639, MARY DOMANY vs. SEARS, _

ROEBUCK..& COMPANY. &

(Entered December 9, 1966.)

pe from the United States District Court for the ne,

‘Northern District of Ohio.

Tus CausE came on to be: heard on the record from —

the United States District Court for the Northern District

of Ohio and was argued by counsel,

On ConsipeRATION Wuereor, It is now ie ordered

, and adjudged by this Court ‘that the judgment ofthe said

District Court in this cause be and the same is hereby re-

versed and the case »»manded for a new trial.

me se further orcered that. Defendant-Appellant re-

cover from Plaintiff-Appellee the costs on appeal, as

. _ itemized helow, and thai execution therefor issue out of

ee 5 said District Court.

" Entered by order of as ‘Court.

Car. W. Reuss,

Clerk.

AT Sead gir eRe AAT or

52

. JUDGMENT OF THE UNITED STATES COURT OF AP-

PEALS, CASE NO. 16,640, -ANDREW DOMANY v. OTIS

ELEVATOR co. ¢

(Entered December 9, 196. )

asad AA Bite ie tng

Anis from the United States,District Court for ie |

Northern’ ‘District of Ohio. -

Tu1s CAUSE came on to be heard on the aii from —

the United States District Court for the Northern District

_of Ohio and was argued by counsel.

On CoNSIDERATION WHEREOF, It is is now here lil

and_ adjudged by this Court that the judgment of the said

_ District Court in this cause be and the same is hereby re-

versed and the case remanded for a new trial.

It “is further ordered that Defendant-Appellant re-

cover from Plaintiff-Appellee the costs on appeal, as

itemized below, and that execution therefor issue out of

‘ said District. Court.

Entered by order of the Court.

Cart W. Reuss,

Clerk. |

| 53 a |

_ JUDGMENT OF THE UNITED STATES COURT OF AP-

‘PEALS, CASE NO. 16,641, ANDREW DOMANY \ v. SEARS

ROEBUCK & COMPANY.

(Entered December 9, 1966.)

AppEAL from the United States District Court i tee

Northern District of Ohio.

Tuts Cause came on to be heard on the record from

the United States District Court for the Northern Ditetet

of Ohio and was argued by counsel,

: On ConsIDeRATION WHEREOF, Tt is now here intaved |

and adjudged by this Court that the judgment of the said

District Court in this cause be and the same is hereby re-

_ versed’and the case remanded for a new trial. ~

It is further ordered that Defendant-Appellant re-

cover from Plaintiff-Appellee the costs on appeal, as ‘

itemized below, and that execution therefor issue out of

said District Court.

Seoul by ‘order of the Court.

Cart W. Reuss,

Clerk. —

z= _ JUDGMENT ON JURY VERDICT (MARY DOMANY).

CS ie "(Entered November 10, 1964) |

: - The action came on for trial before the Court and .

-| . ' a jury, Honorable Girard E. Kalbfleisch, United States

.@. , District Judge, presiding, and the issues having been duly

. tried and the j jury having duly rendered its verdict, in favor.

of the plaintiff against the defendants Sears, Roebuck &”

Co. and Otis Elevator Co. he i

|. Ir Is Onperep and Apsupcep that the plaintiff recover

a ' from the defendants Sears, Roébuck & Co. and Otis

| Elevator Co. the sum of One Hundred Seventy-five Thou-

~ sand ($175,000.00) Dollars and costs. |

Dated at Cleveland, Ohio, this 10th wag of November,

1964.

es er ie a oe

-

C. B. Widions,

Clerk of Court.

55°

‘JUDGMENT ON JURY VERDICT (ANDREW DOMANY).

(Entered November 10, 1964.)

This action -came on for trial before the Court and

‘a jury, Honorable Girard E. Kalbfleisch, United States

District J udge, presiding, and the issues having been duly

tried andthe jury having duly rendered its verdict, in favor

. of the plaintiff against the defendants Sears, Roebuck &

Co. and Otis Elevator Co.,

It is Ordered and Adjudged that the plaintiff recover

from the defendants Sears, Roebuck & Co. and Otis

Elevator Co. the sum of vasiivuis Thousand ($65, 000. 00)

Dollars and costs.

Dated at Cleveland, Ohio, this 10th 1 day of November, |

1964.

ee ae on

Clerk of Court.

a : , .

SUPREME COURT OF THE UNITED STATES,

— RULE 19, 1.(b), U. S. C. A. :

1. A review on writ of certiorari is not a matter of .

right, but of sound judicial discretion, and will be granted ©

only where there are special and important reasons there-’ .

for. The following, while neither controlling nor fully

measuring the court’s discretion, indicate the character of

- reasons which will be considered:

* * * ke &

(b) Where a court of appeals has rendered a

decision in conflict with the decision of anether court

- of appeals on the same matter; or has decided an im-

portant state or territorial question-in a way in conflict.

with applicable state or territorial law; or has decided

an important question of federal law which has not

36

been, but should be settled by this court or has de-

cided. a federal question in a way in conflict with

applicable decisions of this court; or has. so far de-

proceedings, or so far sanctioned such a departure

2 by. a lower court, as to call for. an exercise of ‘this

= court’s power of supervision.

"UNITED STATES CONSTITUTION, ARTICLE IV, SECTION .

“Section 1. Full Faith and Credit shall be given in -

_ each State to the public Acts, Records, and Judicial Pro-

ceedings. ‘of every other State. And the Congress may by

general ‘Laws prescribe the Manner in which. such Acts,

‘Records and Proceedings: shall. be ica and the Effect

thereof.” *

_ UNITED STATES CONSTITUTION, AMENDMENT Vil.

“In Suits at common law, where the ‘value in con-

troversy shall. exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by a jury, shall

be otherwise reexamined in any Court of the United States,

bk according to the rules of the common law.”

eo

EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS.

: Mary Domany, Direct: EXAMINATION:

(37) Q. Now, directing your attention to Nicaiichins

18, 1960, (38) could you tell us what happened to you on

that date, please? A. We went to Sears, Roebuck store in

Southgate.

Q. What time was that, please? A. It was “iia

1: :00 or 7:30-in the evening, and it was before Christmas,

_ went with the children to the first floor, to the toy, depart-

ment, and I went to the second floor to pay some bill. I

_ parted from the accepted and usual course of. judicial -

y/

don’t remember what kina of a bill. I did. pay y the bill, and

I started to come, I was supposed to meet my husband and -

children in the toy department on the first floor. I went up-~

the escalator.. When I come down I used it again, and I, in

my best knowledge all in my life I always hold the rail

when I use the escalator, and I did this time, too: I can’t

_ tell exactly how far I was from the first floor, seven, eight,

ten, fifteen steps Anyway I was standing there, and I hold’

‘ with my hand. My hand was on the rail and the escalator

~did stop, and that was my last feeling. It is hard to de- -

scribe how. It seemed somebody uses a brake, you know,

it was just stopped, and the next second I was down i in the

| first floor.

oe Ve oe

Mary Domany, Cross EXAMINATION: |

(68) Q. Now, Mrs. Domany, for a few moments I |

would like to ask you questions with respect to the acci- te

‘. dent itself. Now,you weré descending the escalator from

the second floor to the first floor when ae episode oc- .

‘curred, is that right? A. Yes.

a And then at some acd the escalator 2 siogpaidt A. ;

lo 9. _Now, when it linia is it the fact that there was: .

a man at about the second or third step from the bottom —

of the escalator? A. A man was before me, almost down.

Q. When the escalator stopped what happened to him? » |

(69) A. He don’t fall. He just walk away.

_ Q. He just went on his way? A. Yes.

Q. Did you ever find out who he was? A. N 0.

Q. Now, at about the time the escalator stopped, | you

were what—about halfway down the escalator? A. I ©

don’t know. I don’t know how far-I was. .

| Might you have been much closer to ‘the bottoth

-than halfway? A. I. could—me, I don’t know whether it

Tha on em ge ear ERI,

vm : ee. y i ee ee eee

.. . z . 5

| : 58 |

was one or two or three steps., I don’t aC oe nasi it

‘was. I remember it was about the middle... | ‘

Q. Now, with respect to whether you were carrying

‘ anything, did- you have a purse with you? A. Yes. a

. Q. In which hand were you carrying the purse? A.

7 Most of the time I carry it in my right arm. ae

Q. Well, on that particular day do you know whether _

you: were carrying your purse in your right hand or in ©

your left hand? A. I believe it was in my right hand.

‘Q. Were you holding onto the handrail when we acci-

_’ dent occutred? A. Yes. gp

- (70) Q. With which hand were you holding | onto the

handrail? A. My left. | ’

Q. You were holding on with your left hand? A. ‘Yes. ;

Q. This is clear in your mind? A. Yes. “a

Q. Do you say that because when you fell you fell es

toward your left? A. I suppose. oe

| Q. In other words you say you were ‘holding on with: :

your left arm because you fell toward the left of the esca-_ -

lator as-you fell? A. I can’t recall. Ty was s closer to the left

‘side than the right.

Q. Well, but the point I am trying: to make, Mrs.

‘Domany, is it the fact that it is because you fell toward the

left side that you believe you were holding on ) with your ~

a hand? A. No. .

vee! Tee ge ge gS ge ee oe

Mary Sidi: Re-Dmecr EXAMINATION: : Ail 4 :

(84) Q. Mrs. Domany, you said there was a man in -

front of | you on the escalator, is that correct? A. Yes.

_ Q. Did you see anyone else on the escalator? A. No.

Q. Just yourself and that one man? Will you say that, ~

is accurate? A. Yes.

4

; ‘in : : : a? S> %

J cinanentbeetrele ein ninans . ; =. 7

, - arn +,

* : . > “ 4

. ® . .* . ~

> °

_ 39

Q: And that man was: futives: toward ‘the bottom

than you were, is that correct? A. He was almgst down. Z .

.. don’t know the steps. |

(85) Q. Did you have an occasion to’ observe what

happened to him when the escalator stopped? A. I don’t

know what happened with him. I don’t see him any more.

Q. You _just remember he was on * te escalator with

soul A. Yes. ee |

F + ¢ + *

eat Antaéw Domany, Cross EXAMINATION: - 7 ae

(112) Q.: Mr. Domany, you were. present on Friday

when Mrs. Domany said you were married i in February of

1952, is that correct? A. Yes.

~* Q. And under oath in Mr. Schigifer's office, in 1964,

you testified you were married on February 2nd, 1952, is /

that correct? A. Yes, February 2nd. |

.Q. When were you, in fact, married to Mrs. Domany?

A. Just home, no ceremony. I say to my’ ' wife—she told

me, “I take you to my wife, and she take me to husband.” - -

| Q.. I see. A. . Because I was marriéd before and her |

husband was divorced, and she is Catholic, and I am Prot-

estant, and we understand.. We-did it this way.

Q. If I understand you, Mr. Domany, there: was no

_ ceremony (113) before a Justice of the Peace or minister?

A. Not here by this married. .

‘ Q. Yes? A. No. : :

Q. Well, did there. ‘chitie 1 a'time ‘lien you, did have a oe

onan before a J ustice of te Peace. or a minister? A.

- Before?

’ Q. Did there ‘come a time when you were married

beforé a Justice: of the’ Kone or a minister to Mrs. Do-

many? A. Yes. | :

@ When was that, sir oe 1957.

ecco, 5 . .. . - P

pe — , id aud a - cae

wre ‘ » * . 61M ersiminrnsemammoamtenrenes swan — . meetin,

NN

: x

_ Yes. .

60

Q. What was the date of that. ceremony, sir? A It

| was August 17th, Angola, Indiana, 1957.

Q. At the time you began to live with Mrs. Domany in

_ February, 1952, were you then divorced from your wife

in Europe? A. I was divorced because my wife—my ex-

_ -wife, she in Czéchoslovakia—give to the court— -

Q. Did you believe you were then divorced? A. Yeah.

Q. I see. Then is it the fact, Mr. Domany, that you

filed for: divorce here in Cleveland in 1953, a year after?

, "* Yes, .

to. *

(114) Q. I see. Did you get a divorce rome in -

1953; at that time, from your wife in Europe? A. No.

Q. You did not. All right. Now, did you have three

children living in Europe from your first ai ci A.

3 8 x “9 * *

Anton J. ErcHMuter, Direct EXAMINATION: *

(210) Q. All right. Now, directing your attention to

the Sears’ Southgate location, are you familiar with that? :

A. Yes, sir. |

Q. Did you have occasion, at my request, to make

certain examinations there? A. Yes, we made two visits

to the Sears’ Southgate store.

Q. What is the date of-the first. visit? A. As I recall,

‘March 26, 1964. .

€211) Q. All right, and will y you describe to the Court

and the jury-what you did when you went there. A. Went

out to the store specifically to review the electrical installa-

‘tions. We checked the ‘operation of the escalator. When

the maintenance man turned the escalator on, we rode the

‘” escalator down.

Q. Who was present at that time? A. You were, Mr.

2 Stillman, Mr. Schipfer, and Mr. Gallagher were present,

i

eee ee ee ae CCI

provided the keys,

61

and I do believe there was a store maintenance man who

Q. All right, and then when you say we rode the esca-

lator down, who was there? A. This one particular occa-

_ Sion there was you, Mr. Stillman, and Mr. Schipfer, ‘as I

recall. I was standing on the left, you in the center, or to

my right, and I think Mr. Schipfer' may have been one

' step ahéad or éven on the same tread as we were standing

*

on. ;

.. Q. Allright. Prior to this time had you had oceasion

to examine the wiring diagram? A: Prior to this time, no,

sir. The wiring diagrams were not available at that time.

— Q. Now, would you further describe. what happened

as we were riding down the escalator? A. Well, as we

rode down the escalator we asked Mr. Gallagher if he .

would be kind enough to operate the key-operated (212) -

switch, or momentary stop, down to the foot of the esca-"

lator. As we were riding down we had no idea when it

was going: to occur, and when the escalator was stopped it

stopped rather abruptly. Some of us jerked ahead, and

- others apparently didn’t.

Q. What was your reaction? A. Well, as I rode down _

the escalator I tried to avoid anticipating. when the esca-

lator was going te stop, so I looked straight ahead and off

to my left.- As the escalator stopped it stopped so abruptly

I had to move my right foot to keep from stepping down

to the lower tread in order to maintain my balance.

Q. Now, what tests other than that did you conduct

at that time? A. Well, when we noticed how. quickly the

escalator stopped Iwas i conversation with you and sug-

gested we check the stopping distance of the escalator; SO,

‘not having been prepared to conduct any type of measure-

ments of this kind, we developed -a rather crude method.

As I recall, you purchased ‘some band aids, and we at-

y %

Par 62

tempted to measure the horizontal motes ¢ deities “ the

escalator. .

| ee ee? * *

_ (214) Q. Now, did you have occasion to return to

_ that location? A. Yes, sir, we returned approximately

two weeks later, on April 6, in which we took some more

readings to try to find out whether the first set of readings

weré reasonably accurate. 4

~ . 'Q. Now, prior to—was it April 6th? A. Yes, April 6.

‘ Q. Prior to that April 6th of 1964, did you have occa-

sion to-examine the electrical wiring diagrams of that esca-

lator? A: No, sir. I believe we picked up the electrical

wiring diagrams that particular morning.

_ Q. All right, and with regard ‘to the measurements

made April 6, what did you find—well, -let’s strike that.

What method did you use at that time to make the measure-

' ments? A. We tried to come up with something perhaps a

_. little more accurate. We recognized that the band aid‘had a

(215) certain width to it, so I cut up some cardboard which

had a knife edge, and with the one piece of cardboard at-

tached. to the balustrade and the other cardboard fastened —

to the stair tread, IT thought perhaps my reaction would be

better; so when the two pieces of cardboard hit I would be

_ able to get a more accurate measurement. —

Q. What measurements did you take with that

system? A. At that time I reported here a total of 9

measurements which varied anywhere from an inch and a

: _ half to five and a half, and the average turned out to be

three mee in this particular case.

on a

ANTON J. ErcHMULLER, Cross EXAMINATION:

~ 63

~

+ * £ #8 \8 car

- (218) Q. And the fact is that notwithstanding the .

~ fact that you forced yourself not to anticipate the stop of

the escalator you did not. fall, and you did not i injure your-

self, did you, sir? A. No, sir. I did not fall.

®

* * * *. *

(223) Q. One last quéstion: when we were all riding

-together—do you remember that? I think we did it both

times, didn’t we? A. Yes.

Q. And I said I would take my hand off the handrail

'and we would stop it? Do you remember that? A. Yes. :

.Q. We did that. Do you remember that? > ae

Q. Do you remember what happened to me? A. Yes.’

‘Q. What? (224) A. You apparently stood ‘still, Mr.

Stillman leaned forward, and I went farther yet. }

Q. No one fell? A. No.

Q. We werén’t grasping the handrail? A. Who?

Q. I wasn’t? A. I don’t recall.

Q. Isaid that I would do it with my hand off. ‘A. I did

have to remove— .

The Court: Are you pee him if you did?

Mr. Schipfer: I thought he saw it. :

+ Did you see. whether I was grasping the rail? A;

| Frankly, I don’t remember. You may have been.

Q. Do you-recall that I told you at the time? A. I

remember your making a comment.. I don’t recall whether

it came prior to the escalator stopping or afterwards. :

~ Q. Well, do you recall this, Mr. Eichmuller: that prior _

to that particular time I said that I am certain that I will

not be thrown off balance if I am not holding the handrail, __

_ do you remember? A. I remember your making one com- _

etd TOR ally TOE nial Lg

64

ment riding down, that you said this wasn’t bad; but this

was after I (225) moved around, and I looked at. you rather

quizzically. }

Q. You don’t remember that specific comment a

made? A. No,sir. , mn | .

Q: You don’t know whether I was holding or not?

A. No, sir, because I was looking straight ahead. Actually

‘I was trying to not anticipate the stopping of the escalator.

_ I was looking to my left.

Q: You do know I didn’t fall? A. That i is right.

Q. In other words, there are different people that have

different opinions of this abruptness or easiness of -the

‘stop, i is that correct?

* Mr. Stillman: Objection: ,

The Court: Well, this is calling for some sort t of :

conclusion. I will sustain it.

Q May I waives it. Of the ies people that were

riding, and at the time there were three varying results

' when the escalator was stopped so far as the person himself _,

was concerned? A. That is correct.

' Q.-But none of the three fell? A, That is correct.

Q. Or went off the step? A. No, sir.

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Rosert H. SCANLAN, Direct EXAMINATION: |

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(235) @ Now, you had occasion while riding the.

escalator to have the stop button pushed while you were

a passenger on it, didn’t you? A. Yes.

-Q. What was your reaction to that? A. Well, I found ©

it necessary to hold the handrail to mom myself from

being pitched forward.

* * & & «&

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Peer

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65

(236) ‘Q. Now, did you have occasion also to measure

~ stopping distances when we were at the location?: A.- Yes.

Q. What were the results of your , measurements?

_ A. We found that with one person on the escalator the

° closest estimate that we could make of stopping distance

‘ was about two inches. I think at the very beginning a

little less than two inches, about one inch and three-

quarters. ‘

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(243) Q. In holding the handrail you had no problem

overcoming that force? A. Well; I am pretty strong.

Q. What sports have you participated in in the last

-10' years? =

cS Mr. Stillman: ‘Objection.

A. I swim a half mile two or three times a week, .

Q. Do you ski? A. Yes, sir. © | :

= nig —s gymnast? A. I was in college, and en

still participate. _ ace | , .

Q. So that you are athletic? A. Reasonably so,- for

‘my age. . . bf : ; ; -

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Dr. Geratp H. Srrate, Cross EXAMINATION:

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(423) Q. Do -you also recall, Doctor, that Mrs.

Domany, at one time during her visit with you, told you

that the man who appeared ahead of her on the escalator | |

was, she guessed, about 65 years old? A. Yes. |

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