Petition for A Writ of Certiorari — Safeway Stores, Inc. v. West

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MAR 2 0 1950

CHARLES ELRIORE CROPLEY

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In THE

Supreme Court of the Anited States

October Term, 1949

ia ia

Sareway Stores, ino., a Corporation,

Petitioner,

Vv.

EizaBeTtH West, VESTER WEST,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

AND BRIEF IN SUPPORT THEREOF

/ Corne.ius H. DoHERTY

1010 Vermont Avenue, N. W.

Washington, D. C.

Attorney for Petitioner

WILSON - Eres PRINTING Co. - RE 6003 - WASHINGTON 1, D. C.

ee

INDEX

PAGE

Petition 1

Summary Statement of Matter Involved 2

The Basis of the Court’s Jurisdiction 7

Questions Presented 8

Reasons Relied Upon for the Allowance of the Writ... 8

Brief in Support of Petition 11

Opinion of the Court Below 11

Specification of Errors 11

Argument 12

The United States Court of Appeals for the Dis-

trict of Columbia Misconceived the Law of Res

Ipsa Loquitur as Stated in the Applicable Deci-

sions of this Court and Misapplied That Law

to the Facts in This Case 12

The Doctrine of Res Ipsa Loquitur is Not Appli-

cable When the Negligence is Known 15

The Instrumentality Causing the Injury Was Not

in the Exclusive Control of Defendant.................. 18

The Instrumentality Causing Injury Could Have

Caused the Injury Without Negligence of the

Defendant 18

The Rules of Civil Procedure for the District

Courts of the United States Do Not Require

That Contributory Negligence Be Pleaded

When It Appears in the Plaintiff’s Testimony

and the United States Court of Appeals for

the District of Columbia Erred in Failing to

Decide That the District Court Should Have

Instructed the Jury on Contributory Negli-

I aeciiaiatetinecttioninihepnanianninleicis 19

Conclusion

Cases Cited

Brown v. Capital Transit Company, 75 U. S. App.

D. C. 337, 127 Fed. (2d) 329

Brown v. Dorney Park, 167 Fed. (2d) 453.................... 9,19

ee ne CIE ELT

—

ii INDEX (Continued)

PAGE

Farina v. First National Bank, 72 Ohio App. 109,

51 N. E. (2d) 18

Gray v. Baltimore & O. R. Company, 24 F. (2d) 671... 9,16

Hook v. National Brick Co., 150 Fed. (2d) 184.............. 19

J. Maury Dove Company v. Cook, 59 App. 61, 32 Fed.

EE UNE cicieeubindiin tals eniacsililenatacensinRigrsinbelignity cant 9, 20

Jaquette v. Capital Traction Co., 34 App. 51.................. 8

Jesionowski v. Boston & M. R. R., 399° v S 452, 67

Supreme Court Rep. 401......22..22.0222.....-20+---+- 8,12

Johnson v. United States, 333 U. S. 46, 68 Supreme

CR nooner 8, 12, 14, 15

King v. Davis, 54 App. D. C. 239... 8, 16

Kramer v. Mills Lumber Company, 24 Fed. (2d) 313.. 9

Pistorio v. Washington Railway & Electric Company,

© 8 ig St SRR reenereree 8,

San Juan Light & Transit Co. v. Requena, 224 U. S.

oe & Se ye | 18

Sweeney v. Erving, 228 U. S. 233, 33 Supreme Court

p. 416 8, 18

Washington Loan and Trust Company v. Hickey, 78

App. D. C. 59, 137 Fed. (2d) 677.................... 13

Woolworth v. Williams, 59 App. D. C. 347, 41 Fed.

(2d) 970 ‘ 19

In THE

Suvreme Court of the Anited States

October Term, 1949

OE cia

Sareway Srorss, Lyc., a Corporation,

Petitioner,

Vv.

EizasetuH West, VESTER WEsT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT CF COLUMBIA CIRCUIT.

The petition of Safeway Stores, Inc., a Corporation, for

a writ of certiorari to the United States Court of Appeals

for the District of Columbia, entered on the 23rd day of

January, 1950, affirming a judgment against your peti-

tioner and in favor of the respondents in the sum of

Forty-five Thousand Dollars ($45,000.00) entered in the

United States District Court for the District of Columbia

on the 6th day of January, 1949, respectfully shows:

=.

SUMMARY STATEMENT OF MATTER INVOLVED

2

Your petitioner, on the 28th day of June, 1945, and a

long time prior thereto, operated a store at 1613 Mon-

tello Avenue, N. E., and on this day the respondent,

Elizabeth West, opened a screen door with the intention

of entering the store. As she started to go in, a lady was

coming out with a baby in a stroller and she stepped back

to allow the lady to pass, and as she held the door open

the spring broke and struck her in the eye.

Mrs. West stated that she had used the screen door

before and opened the door normally and walked in, but

she did not remember how she opened the door on that

particular day. All she remembered was that she held

the door open but in what position she could not say.

She knew that there was a spring on the door and that

she had a spring on her own screen door at home and they

looked alike (R. 13-21).

A Mrs. Margaret Howes, a witness for the respondent,

stated that she was familiar with the store and was a

customer in the store on the morning of June 28, 1945,

and she was accompanied by her little baby who was trans-

ported in a stroller. She went to the store about 9:00

A.M. that morning and as she was leaving the store

Mrs. West was coming in and Mrs. West stepped back

and held the door open while she pushed the stroller

down the step, and as she was pushing it down the step

she heard a snap and a zinging sound and heard Mrs. West

scream. She saw the spring fly back and bounce up on

the screen door. She stated that she informed the man-

ager, Mr. Weaver, of the fact that the spring had broken

on the door and hit Mrs. West in the eye. The spring was

a metal spring which hooked onto the: side of the door

and to the door jamb and that the spring was hanging

to the screen door where it had broken off and it was on

the screen door when she saw it. She stated that the

——

3

spring was broken at the end and that it was rusty but did

not call it to the manager’s attention (R. 21-27).

On cross-examination, Mrs. Howes stated that she went

to the store two or three times a week and that on this

particular morning she went to the store about 9:00 A.M.

and saw nothing wrong with the door or spring as she

went in. She saw nothing wrong with the spring as she

was coming out, and that she had screen doors at her

home and thought that she had the same type springs on

the doors. She denied that Mrs. West pushed the screen

door back against the wall. She stated that the spring

was broken at the end where it snapped right off. She

didn’t pay too much attention to it but just looked at the

end and saw that it had broken off (R. 27-30).

The following questions and answers, which were put

to the witness, appear on page 31 of the record:

‘*By Mr. Doherty:

Q Now, on the question of the opening of this door,

have you talked to anybody since the other proceed-

ing that was had in this case on the 16th day of De-

cember, 1948? Have you discussed your testimony

with anybody since that time? A Just to my family.

Q Nobody else atall? A To friends.

Q Have you discussed it with any party to this suit?

A No.

Q Yourcounsel? A No.

Mr. Doherty: I am now referring to page 109 of

this record (indicating).

By Mr. Doherty:

Q I will ask you whether or not this was not your

testimony on the 16th day of December, 1948, this past

month.

‘Q. Now, this particular day you heard a crack of

some kind, is that what you heard? And your answer

was: ‘Yes.’

‘Q She had pushed the door all the way back?

Way back?’ ‘A Yes.’

‘Q Was it back against the building? ‘A Yes.’

‘Q Just about?’

SOTERA PSY

a

4

‘a Xen.’

Was that your testimony at that time? A Well, I

guess so.”’

The following questions and answers appear on page 33

of the record:

**By Mr. Doherty:

Q Did you read the original of this statement before

you signed it? A Yes.

Q You had a notation that you have read it, the

statement of one page and it is true? A Yes.

Q Now, in that statement didn’t you put in there,

this statement, ‘She pulled the screen door open as

far as it would go.’ Is that what you told Mr. Briggs

at that time? A Well, I guess so, if it is in there.

Q And that would be in accord with the same testi-

mony that you gave in December, just a month ago,

right over here in another court; But now you say

that isn’t so, that you didn’t—that she didn’t open

the door as far as it would go and back up against

the wall, as you previously testified. A I really

don’t remember, if I saw that—

x You wouldn’t deny you said it, would you? A

0.

Q How long did you stay there after this accident

occurred? A Oh, I guess about twenty minutes or

something like that.

Q Waited until the ambulance came? A No, they

took her inside and then I went on home.

Q And when did you look at the spring? A Well,

after they revived her and asked her where she lived

and asked me where I lived, and my name, and then

I went over and looked at it.

Q And youinspectedit? A Yes.

Q Did you look down at the end where it had

broken? A_ Yes.

Q Was there another little part left on the door

jamb, on the eye—the eye was still there, wasn’t it,

with the screws? A Yes.”’

The respondent, Vester West, testified that he went

into the store approximately twice a week and used the

screen doors and that he did not notice anything wrong

—7~"

5

with them. He had used the screen door the Saturday

prior to the accident and the door worked properly at

that time (R. 36).

A motion was made at the close of the respondents’

ease for a directed verdict on the ground that no negli-

gence of any kind was shown on the part of the Safeway

Stores and that the doctrine of res ipsa loquitur would not

apply (R. 38). This motion was denied (R. 50-51).

The petitioner produced evidence that the store in

question was closed down for approximately three (3)

weeks in order that it might be remodeled in May of

1945 and that it was remodeled under and by virtue of a

contract with Edison Crawford Bittenbender and he re-

ceived Twenty-one Hundred Fifty-one Dollars and

Eighteen Cents ($2151.18) for remodeling the store, and

that new coil springs were placed on the screen doors at

that time.

Mr. Bittenbender testified that he could not tell from

looking at a spring whether there was a defect of any

kind in it. The spring is put on the door and pulled back

and forth and if the spring doesn’t break that would be

the only test as to whether the spring was bad or good

(R. 53-58).

On cross-examination, he stated that the only inspection

he made consisted of pulling the door open to see if the

door would close properly and that the spring didn’t have

too much tension on it. He stated further that rust will

not hurt the springs. (R. 58-62).

On re-direct examination, he stated that when the

springs get a little water on them, or rust as you would

say, and you pull it back and forth constantly, like it is

on a screen door, it would give, and instead of putting it

away on the front, when it comes to half way, we put a

new spring on there. He stated further that the metal

was treated for rust (R. 63).

” et re

2 REPRESS RAPE LO EE IIE

a

Charles A. Riggs stated that he was employed by E. C.

Bittenbender in May of 1945 and was in charge of the

remodeling of the store at 1613 Montello Avenue, N. E.

He stated that the screen doors were remodeled and

placed in first class condition under his supervision and

new springs were put on the doors at that time. He iden-

tified the type of the spring which was used on the door

which he said was placed near the center of the door about

waist high. He stated that there is, as a rule, a cross-rail

about the center of the door and that he always hooks the

spring in the center of the rail, which would be about

waist high, and that was the proper place to put it. He

stated that there was no special way of checking the spring

other than to open the door backward and forward to its

fullest extent and see that the spring works the door and

doesn’t work too much of a strain on the springs so that

it doesn’t slam the door too hard. He stated that when

the spring is used quite a bit and gets old it will stretch

out so that it hasn’t any recoil and not strength enough

to close the door. He stated that he saw part of the

spring that was broken and that he did not know what

caused it to break and that he didn’t have the slightest

idea. He stated that the piece that was brought to his

shop was about the size of the piece that was shown him

in the Court room and that the piece that was shown him

soon after the accident was not rusty (R. 64-67).

6

It was testified to that Frank Weaver, the manager of

the store in June of 1945, had died in July of 1947

(R. 72-79).

At the Wlose of all the evidence the petitioner renewed

his motion for a directed verdict based upon the original

ground given and further that if there was any inference

of negligence by reason of the happening of the accident

that it had overcome this negligence by direct evidence

(R. 81).

The Court stated that the screen door and the spring

were both matters over which the defendant had complete

7

control and that the plaintiff had no control of it, and, on

page 85 of the record, this motion was denied. The Court

denied the motion and indicated that the burden of proof,

where res ipsa loquitur is relied upon, is upon the de-

fendant to show that there was no negligence.

The Court permitted the case to go to the jury under

the doctrine of res ipsa loquitur, and plaintiffs’ instruction

No. 5, covering the doctrine of res ipsa loquitur, was read

to the jury (R. 9).

The petitioner asked for an instruction on contributory

negligence, defendant’s instruction No. 5, (R. 11) and this

instruction was denied (R. 11).

The jury found in favor of the plaintiff and a motion to

set aside the judgment and enter judgment for the de-

fendant and/or grant a new trial was denied on the 9th

of February, 1949 (R. 6-7).

The petitioner, in its brief in the United States Court

of Appeals, relied upon nine (9) separate errors made

by the trial Court, but the only point referred to in the

opinion was that which covered the application of the doc-

trine of res ipsa loquitur.

In the argument in the United States Court of Appeals,

counsel for the respondents stated that the petitioner was

claiming error in the refusal of the trial Court to allow

an instruction on contributory negligence and that it had

not been pleaded. Judge Bennett Champ Clark, the pre-

siding Judge, then said that if the petitioner had not

pleaded contributory negligence then what complaint did

it have?

THE BASIS OF THE COURT’S JURISDICTION

The jurisdiction of this Court is based upon Section

240 (a) of the Judicial Code, as amended, Title 28

U.S. C. A., see. 1254 (1).

8

The date of the judgment sought to be reviewed is

January 23, 1950 (R. 108).

QUESTIONS PRESENTED

1. (a) Was there a correct interpretation by the

United States Court of Appeals for the District of Co-

lumbia of the Doctrine of res ipsa loquitur as applied

in the District of Columbia and in other Federal Circuits?

(b) Was there a correct application of that doctrine

to the facts in this case?

2. (a) Did the United States Court of Appeals for the

District of Columbia err in failing to pass upon petition-

er’s request for an instruction on contributory negligence?

(b) Did not the facts of this case require that the

question of contributory negligence be decided by a jury?

REASONS RELIED UPON FOR THE ALLOWANCE

OF THE WRIT

(1) The decision of the United States Court of Appeals

for the District of Columbia Circuit in this case on the

question of res ipsa loquitur is in conflict with the ap-

plicable decisions of this Court in

Johnson v. United States, 333 U. S. 46, 68 Supreme

Court Rep. 391

Jesionowski v. Boston & M. R. R., 329 U. S. 452, 67

Supreme Court Rep. 401

Sweeney v. Erving, 228 U. S. 233, 33 Supreme Court

Rep. 416

The decision in this case is in direct conflict with the

decisions of the United States Court of Appeals for the

District of Columbia:

Jaquette v. Capital Traction Co., 34 App. 41

Pistorio v. Washington Railway & Electric Company,

46 App. D. C. 485

King v. Davis, 54 App. D. C. 239

La

9

The decision of the United States Court of Appeals for

the District of Columbia is in conflict with the various

Circuit Courts of Appeals in the following decisions:

Gray v. Baltimore & O. R. Company, 24 F. (2d) 671

Kramer v. Mills Lumber Company, 24 Fed. (2d) 313

Brown v. Dorney Park, 167 Fed. (2d) 453

In the case of Johnson v. United States, 333 U. S. 46, 68

Supreme Court Rep. 391, this Court left open the question

of the application of the doctrine of res ipsa loquitur

where it was shown that the injured person was an actor

in the occurrence.

(2) The decision of the United States Court of Appeals

for the District of Columbia in this case in failing to

pass upon the instruction of contributory negligence for

the supposed reason that it was not pleaded is in conflict

with its own decisions:

J. Maury Dove Company v. Cook, 59 App. 61, 32 Fed.

(2d) 957

Wuererore, it is respectfully submitted that this peti-

tion for a writ of certiorari to review the judgment of

the United States Court of Appeals for the District of

Columbia should be granted.

Corne.ius H. DoHErty

1010 Vermont Avenue N. W.

Washington, D. C.

Attorney for Petitioner

11

In THE

Supreme Court of the Anited States

October Term, 1949

Bs eats

Sareway Srorzs, Inc., a Corporation,

Petitioner,

v.

EvizasetH West, Vester West,

Respondents.

BRIEF IN SUPPORT OF PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

OPINION OF THE COURT BELOW

The opinion of the United States Court of Appeals for

the District of Columbia has not been officially reported

at the time this is written, but is printed in the record

(R. 108).

SPECIFICATION OF ERRORS

(1) The United States Court of Appeals for the Dis-

trict of Columbia erred in holding that this was a proper

case for the application of the doctrine of res ipsa loquitur

Oe:

12

and that it should have required the respondents to prove

negligence on the part of the petitioner especially where

the record discloses that the respondent was an actor in

the cceurrence, and that she and her witnesses were the

only persons who had actual knowledge of what occurred.

(2) The United States Court of Appeals for the Dis-

trict of Columbia erred in holding that the doctrine of res

ipsa loquitur applied where the record disclosed that the

respondents’ witnesses stated that the spring appeared

to he working properly pricr to the accident and that

because of the mere breaking of the spring there was an

inference of negligence.

(3) The United States Court of Appeals for the Dis-

trict of Columbia erred in refusing to consider the refusal

of the trial Court to instruct the jury on contributory

negligence. The action of the United States Court of

Appeals for the District of Columbia being due to a mis-

application of the law covering the necessity of pleading

contributory negligence under the Rules of Civil Pro-

cedure for the District Courts of the United States.

ARGUMENT

The United States Court of Appeals for the District of

Columbia Misconceived the Law of Res Ipsa Loquitur

as Stated in the Applicable Decisions of this Court

and Misapplied That Law to the Facts in This Case

In the briefs of both parties in the United States Court

of Appeals for the District of Columbia, reference was

had to the cases of Jesionowski v. Boston & M. R. R., 329,

U. S. 452, 67 Supreme Court Rep. 401, and Johnson v.

United States, 333 U. S. 46, 68 Supreme Court Rep. 391,

but the United States Court of Appeals, in its decision,

made no reference whatever to these decisions.

a

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13

The United States Court of Appeals for the District

of Columbia relied upon the previous decisions of that

Court in Washington Loan and Trust Company v. Hickey,

78 U. S. App. D. C. 59, 1387 Fed. (2d) 677, and Brown v.

Capital Transit Company, 75 U. S. App. D. C. 337, 127

Fed. (2d) 329.

In the Hickey case a screen fell from a window on the

sixth or seventh floor of a building owned and operated

by the defendant and the plaintiff was not in a position

to produce witnesses as to the cause of the falling and

the Court rightly applied the doctrine of res ipsa loquitur

for the screen was in the exclusive possession of the de-

fendant, and, if not, it was in a position to wroduce testi-

mony as to who had the possession and control of the

screen.

In the Brown case, immediately following the statement

which is contained in the opinion of the United States

Court of Appeals for the District of Columbia, is the fol-

lowing :

‘‘The rule is so stated by the Supreme Court in

Sweeney v. Erving, 228 U. S. 233. Where, as here,

it is a matter of surmise that the damage was due

to a cause for which the defendant is liable, the doc-

trine is inapplicable. If causes other than the negli-

gence of the defendant might have produced the acci-

dent, the plaintiff is bound to exclude the operation

of such causes by a fair preponderance of the evi-

dence. Here the sum and substance of appellant’s

evidence is that an injury occurred.

‘*We are of opinion that the trial Court, in direct-

ing the verdict, properly took away from the jury the

opportunity to guess and speculate, as they must have

done to reach a verdict in this case.’’

The only testimony that was available concerning the

happening of the accident and the subsequent injury was

in the sole possession and control of the female respond-

ent and her witnesses. She was an actor in the occurrence

— OT ct cali

nL ETT OE

i i

14

and whether she opened the door normally or placed it

back to its fullest extent against the wall at an angle of

One Hundred Eighty Degrees (180°) or not were all facts

which were presented in the respondents’ case. If the

Court was of the opinion that there was sufficient facts

to go to the jury on the question of the petitioner’s negli-

gence it should have permitted it to go to the jury under

proper instruction on general negligence and not upon the

sole instruction covering the doctrine of res ipsa loquitur

and instructing the jury that it was necessary for the peti-

tioner to overcome an inference of negligence.

The Court could have permitted this matter to go to

the jury under proper instruction on the negligence of

the petitioner and the contributory negligence of the fe-

male respondent.

In the Johnson case, the Court, at page 48, said:

‘‘The rule of res ipsa loquitur applied in Jesio-

nowski v. Boston & Maine R. Co., supra, means that

‘the facts of the occurrence warrant the inference of

negligence, not that they compel such an inference.’

Sweeney v. Erving, 228 U. S. 233, 240, 33 S. Ct. 416,

418, 57 L. Ed. 815. We need not determine what the

result would be if it were shown that petitioner was

pulling on the rope when the accident happened. For

the uncontradicted evidence is that he was not pull-

i ing on the rope but was bending over coiling it on the

deck. A man who is careful does not ordinarily

drop a block on a man working below him. Some

external force might conceivably compel him to do so.

| But where, as here, the injured person is not im-

plicated (Jesionowski v. Boston & Maine R. Co.,

supra), the falling of the block is alone sufficient basis

for an inference that the man who held the block was

negligent. In short, Dudder alone remains implicated,

since on the record either he or petitioner was the

cause of the accident and it appears that petitioner

was not responsible.”’

The respondent definitely was an actor in this occurrence

and this Court, in the above statement taken from the

—

15

opinion in the Johnson case, leaves this particular matter

open for future decision.

Unless some definite rule is stated by this Court cover-

ing each and every instance for the application of the

doctrine of res ipsa loquitur, the District Courts and the

United States Court of Appeals for the District of Co-

lumbia will enlarge upon and misapply the doctrine until

all that will be necessary to be shown in each and every

case will be that the person has been injured and will, in

effect, change the burden of proof which is now upon the

plaintiff to the defendant.

The Doctrine of Res Ipsa Loquitur Is Not Applicable

When the Negligence Is Known

The respondents, in their complaint, stated that the

petitioner maintained said screen doors and the metal

attachments thereon, including said springs, in such a

negligent and careless manner as to cause the said metal

springs to break off when said screen door was extended,

thereby causing the same to drop off or separate and strike

the plaintiff * * * (R. 3). They attempted to prove

these facts by showing the breaking of the spring, the

fact that it appeared to be rusty and that the spring was

placed on the door approximately face high to the female

respondent. The door was shown to have been used a

short time prior thereto by one of the respondents’ wit-

nesses. There was no testimony to show what actually

caused the spring to break or where there was any negli-

gence on the part of the petitioner.

Mr. Justice Frankfurter, dissenting in part, in the

Johnson case, at page 53, made the following statement:

‘“‘But I do not believe that res ipsa loquitur is

applicable here. It is, after all, a ‘rule of necessity

to be invoked only when necessary evidence is absent

and not readily available.’ See Cooley, Torts, 4th

Ed., 480. Here the evidence as to the cause of peti-

OC ET PF PETE

gp N

a

16

tioner’s injuries was admittedly available, and it

would seem to follow that since what actually hap-

pened could have been adjudicated, it should have

been adjudicated. Therefore, I would affirm the

judgment of the court below but modify its mandate

so that there may be a new trial on this issue and

an adjudication based upon an adequate determina-

tion.’’

The petitioner had no knowledge whatever concerning

the happening of the accident except that which was con-

veyed to it by the respondents and their witnesses.

In the case of Gray v. Baltimore & O. R. Company, 24

Fed. (2d) 671, the Court, at page 673, made the following

statement:

‘We are of opinion that the maxim ‘res ipsa lo-

quitur’ has no application in this case. Negligence is

never presumed. Under the maxim ‘res ipsa loquitur’,

negligence is only inferred from the surrounding cir-

cumstances in those cases where the act of negligence

is not known. If the negligence is known, there is no

justification for the drawing of inferences. In this

case, the cause of the open switch was a matter of

common knowledge, and was fully known to the plain-

tiff. The switch was found open into the siding. The

derailing of the cars was caused by the derailing de-

vice, properly in place upon the switch rails. The

sawed lock was found soon after the accident near

the switch. The negro was apprehended, convicted,

and sent to prison, because he sawed the lock and

opened the switch. The plaintiff in no way challenges

those facts, but, on the contrary, he bases his third

count upon the failure of defendant to guard the

switch against the negro. The switch was taken

under the control of the negro at the time he sawed

the lock, and from that time until the wreck it can-

not be said that it was solely under the control of the

defendant.’’

In the case of King v. Davis, 54 App. D. C. 239, the

Court said, at page 242:

‘‘Tt is urged by appellant that the doctrine of res

ipsa loquitur should be applied in this case. That

17

doctrine may be invoked only where the facts of the

occurrence warrant the inference of negligence, and

the pleader, because of the nature of the case, is not

able to point out the specific act which caused the

injury complained of. Moore v. Clagett, 48 App.

D. C. 410, 415. But where, as here, the declaration

alleges the precise acts upon which the case is predi-

cated, namely, the service of the veal with knowledge,

actual or constructive, that it was unfit for human

consumption, the doctrine has no application. The

pleader knew the acts of negligence on which she

relied, and she was required to prove them, or some

of them, without the aid of the presumption which

flows from the application of the doctrine of res ipsa

loquitur. Moore v. Clagett, supra.’’

In the case of Pistorio v. Washington Railway & Elec-

tric Company, 46 App. D. C., at page 485, the Court made

the following statement:

‘‘The plaintiff was riding in an open car facing in

the direction the car was going. It is alleged in the

declaration how and where the collision occurred, and

the negligence of defendants is generally charged. All

the circumstances tending to establish negligence on

the part of defendants were adduced by the testimony

of plaintiff and her witnesses in her case in chief.

Nothing was left for defendants but rebuttal. To such

a case the rule of res ipsa loquitur has no application.

Where the plaintiff assumes to allege the facts con-

stituting negligence, he is bound to prove them, and

no inference of negligence arises from the happening

of the accident. ‘It is sufficient for him to charge in

general terms that he was injured while being carried

as a passenger, as the result of the negligence of the

carrier. But when the plaintiff chooses to allege in

his petition the specific acts of negligence of which

he complains, he assumes the burden of proving them,

and as in other cases must recover, if at all, upon

the negligence pleaded.’ Hamilton v. Metropolitan

Street R. Co., 114 Mo. App. 504, 89 S. W. 893, quoted

with approval in Jaquette v. Capital Traction Co., 34

App. D. C. 41, 44,5 L. R. A. (N. 8.) 407. The same

rule applies where negligence is alleged in general

terms, but the plaintiff voluntarily assumes the burden

ee FT STO

18

of proving it. ‘This presumption only arises in the

absence of evidence of the circumstances out of which

the negligence of defendant may be ascertained.’

a v. Capital Traction Co., 34 App. D. C. 358,

’

The Instrumentality Causing the Injury Was Not In

the Exclusive Control of Defendant

Your petitioner referred, in its brief in the United

States Court of Appeals for the District of Columbia, to

the case of Farina v. First National Bank, 72 Ohio App.

109, 51 N. E. (2d), page 36, where a customer of a bank

was using a revolving door in leaving the bank when it

collapsed and injured her and she endeavored to rely

upon the doctrine of res ipsa loquitur, and the Court made

the following statement:

‘‘This door, as well as doors of like design, did not

and does not operate itself. It was made available by

the bank, but was not being operated by it. By the

plaintiff’s own testimony she was operating the door

when a wing collapsed. She had to exercise some

force to procure an exit from the banking room. In

fact, unless another person was within the door at

the time, she was the sole agency which caused it to

revolve. This being true, then, at the time of injury,

the bank had no control thereover.”’

This decision is in accord with the decisions of this

Court in the case of San Juan Inght & Transit Co. v.

~~ Requena, 224 U. S. 89, 32 S. Ct. 399, and Sweeney v.

Erving, 228 U. S. 233, 33 8. Ct. 416.

The Instrumentality Causing Injury Could Have Caused

the Injury Without Negligence of the Defendant

It is not known what caused the spring to break. There

is no evidence that the spring was caused to break by

reason of any defect which might have been apparent

under any circumstances to the defendant upon an exam-

ination by it.

—_—

19

In Hook v. National Brick Co., 150 Fed. (2d) 184, the

Court referred to a statement in Restatement of the Law,

Vol. Torts, Chap. 12, Par. 300, as follows:

‘**A failure to make an inspection does not create

liability unless the inspection, if made, would have

disclosed the particular defect which makes the use

harmful to the other. * * * It is sometimes true that

those who use certain instrumentalities are under a

duty to make reasonable inspection thereof. The

duty of inspection is not, however, ordinarily an inde-

pendent duty upon which liability is based, but is a

duty, the performance of which is a condition prece-

dent to a reasonable use of the instrumentality. The

actor’s negligence lies in his act of using the defective

instrument without adequate inspection, not in his

omission to perform his duty of inspection.’ ’’

The same effect is Brown, et al v. Dorney Park Coaster

Co., Inc., 167 Fed. (2d) 433.

In the case of Woolworth v. Wiliams, 59 App. D. C.

347, 41 Fed. (2d) 970, the Court said that the proprietor

of a store is merely under a duty of exercising reason-

able care to keep his store in a safe condition and is not

an insurer of their safety while in the store.

To require of the petitioner to overcome an inference

of negligence where it is merely shown that the party is

injured would make your petitioner an insurer of the

safety of customers in its store.

The Rules of Civil Procedure for the District Courts of

the United States Do Not Require That Contributory

Negligence Be Pleaded When It Appears in the Plain-

tiff’s Testimony and the United States Court of Ap-

peals for the District of Columbia Erred in Failing

to Decide That the District Court Should Have In-

structed the Jury on Contributory Negligence.

It is true that Rule 8 (c) of the Federal Rules of Civil

Procedure states that contributory negligence is an affirm-

ative defense and should be pleaded, but this in no way

a

20

changes the law which existed in the District of Columbia

and elsewhere that where the contributory negligence

appears in the plaintiff’s own case then it may be taken

advantage of without the necessity of pleading.

In the case of J. Maury Dove Co. v. Cook, 59 App. D. C.

61, the Court, at page 62, said:

‘‘The sole question before us is whether under the

facts of this case as disclosed by plaintiff’s evidence,

defendant not having pleaded contributory negli-

gence, the question of contributory negligence should

have been submitted to the jury. Where the question

of contributory negligence is not raised by plea of

defendant, it is the almost universal rule that the

court may direct a verdict if plaintiff’s evidence dis-

closes contributory negligence as matter of law, but

that if plaintiff’s evidence merely tends to show con-

tributory negligence the question is for the jury.’’

The respondents’ evidence indicated that the female re-

spondent pushed the door back against the wall which

places an unusual strain upon the spring and this may

have been the cause of the breaking of the spring and the

subsequent injury of the female plaintiff.

The District Court was asked to instruct on contribu-

tory negligence in accordance with defendant’s instruc-

tion No. 5 (R. 11), and this was denied. The United

States Court of Appeals failed to pass upon the right of

your petitioner to have an instruction under the theory

of contributory negligence on the part of the female

respondent, and this failure to pass upon this instruction

was indicated by the Court at the time of argument to

be because of the failure of petitioner to plead contribu-

tory negligence.

The petitioner had no facts nor proof of its own upon

which to base a plea of contributory negligence and this

information or evidence appeared only in the plaintiffs’

case in chief, and your petitioner was entitled to have an

instruction on contributory negligence.

21

CONCLUSION

The record clearly discloses that the spring which

caused the injury to the plaintiff was not in the exclusive

possession and control of the petitioner at the time that

the female respondent was injured. The record indicates

that the female respondent was an actor in the cecurrence

and did have control to some degree of the instrumentality

which caused her injury. The record indicates that the evi-

dence of the cause of the female respondent’s injuries were

available and the respondents and their witness were the

only ones who had actual knowledge of the cause of the

injury, and having pleaded and attempted to prove the

negligence of the petitioner it was highly improper to

allow this matter to go to the jury on the doctrine of res

ipsa loquitur with an inference to be overcome by the peti-

tioner who had no knowledge concerning the actual hap-

pening of the accident.

If the case were permitted to go to the jury at all it

should have gone to the jury under proper instructions on

the question of the negligence of the petitioner.

The record indicates clearly that the female respondent

was in control of the instrumentality which caused her in-

jury and that it may have been her negligence in opening

the door beyond a normal limit which caused the epring

to stretch and break, and that the Court should have in-

structed the jury on the question of negligence and the

contributory negligence of the respondent.

It is respectfully submitted that the decision of the

United States Court of Appeals for the District of Co-

lumbia in this case is in conflict not only with the decisions

of this Court but with the decisions of the majority of the

Sireuit Courts where these questions have arisen; that

the questions presented in this petition are of extreme

importance and wide application to all matters pertaining

22

to actions based on negligence, and that the writ of cer-

tiorari should be granted in this case in order that the

questions presented herein may be clarified and settled by

this Honorable Court.

Corne.ius H. DoHEerty

1010 Vermont Avenue, N. W.

Washington, D. C.

Attorney for Petitioner