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HILLEARY v. EARLE RESTAURANT

December 31, 1952

HILLEARY
v.
EARLE RESTAURANT, Inc., et al.



The opinion of the court was delivered by: KEECH

This case is before the court on motions for judgment notwithstanding the verdict or for a new trial, filed by both defendants following a verdict for the plaintiff.

Briefly stated, the facts are: On January 24, 1950, when the plaintiff, Mrs. Hileary, with Mrs. Abbott and Mrs. Robinson, was leaving the Neptune Room, operated by the defendant Earle Restaurant, Inc., after lunching there, there, Mrs. Abbott slipped on the tiled entranceway adjacent to the sidewalk. Mrs. Robinson, who was in the middle of the group, tried to help Mrs. Abbott, on her left, and in 'grabbing' at Mrs. Abbott, Mrs. Robinson stuck Mrs. Hilleary, on her right, with her right elbow, causing Mrs. Hilleary to fall to the pavement and break her hip. Both Mrs. Abbott and Mrs. Robinson testified that after the accident they looked at the step and saw that it was moist or damp with muddy tracks. The official weather report for that day, made at the station at 24th and M Streets, N.W., indicates that there was .03 inches of rain between the hours of 3 and 6 A.M. and a 'trace' between 6 and 7 A.M.

 The doorway of the Neptune Room is recessed in the wall of the building, 30 inches back from the sidewalk. The area between the metal threshold and the sidewalk is paved with glazed ceramic tile. The threshold of the door is level, while the sidewalk slopes down hill. The east-west slope from the threshold to the sidewalk is negligible at the north end of the doorway, but at the south end the entrance slopes in a ratio 1 inch to 10 inches, to compensate for the slope of the sidewalk. By reason of the combination of the two slopes, north to south and east to west, the middle area of the step has a dip or wavy depression.

 The evidence showed that the doorway was constructed in its present form in 1939, when the present tenant leased the premises and they were remodeled for its purposes. The remodelling was done by the landlord, subject to approval by the tenant. The testimony was that the entrance was in 1950 and is at the present the same as it was constructed in 1939, except that the tile may have become smoother by wear over the years.

 The plaintiff sued both the landlord, Stanley Company of America, and the tenant, Earle Restaurant, Inc., and recovered a verdict of $ 22,000 against both defendants.

 The defendants base their motions on substantially the same grounds. Both contend that the verdict was not supported by substantial evidence; that it was contrary to the weight of the evidence; that the court erred in receiving evidence of other better materials available for use in entranceways, namely, so-called 'non-skid tile'; that the court erred in instructing the jury; that the verdict was not unanimous and should not have been received by the court; and that the verdict is grossly excessive.

 It is argued that there is not evidence that anything other than wetness of the tile caused Mrs. Abbott to slip; that she is the only witness who testified as to the cause of her slipping; and that the court's instruction that the jury must find for the defendants if it found Mrs. Abbott slipped because of the wetness, excluded from the jury's determination the only evidence as to the cause of her slipping and permitted the jury to speculate as to the cause of the accident. *fn1"

 'Q. Tell us what happened after you opened the door and walked out of the Earle Restaurant. A. As I got outside the door, on to the tile, I just felt my feet going from under me; they began to slip and I couldn't stop; it was as if I was on ice, and I began staggering to try to catch my balance, and then evidently when I hit that rough place in the pavement I lunged forward and tried to grab my sister to right myself.

 'Q. Then what happened? A. She swung around to catch me and brushed against Nannie, I think.

 'Q. And what happened to Nannie? A. Well, the first I knew- of course, it all was over in a minute, and I was thinking about myself, afraid I was falling, and then I saw Nannie lying sprawled on the pavement.

 'Q. Can you tell us what caused you to slip? A. I really don't know. It was wet; I think I just slipped- it was like ice.

 'The Court: Do you know or do you think?

 'The Witness: What did you say?

 'The Court: I understood you to say it was what you think. Do you know?

 'The Witness: I would say it was wet, because at the time I didn't notice it, but after standing there waiting for the ambulance I did glance back and saw that it was wet and muddy.'

 On cross-examination, Mrs. Abbott was asked:

 'Q. I say you could see footprints in the dampness on the tile? A. It was mud that had been left on by people's feet.

 'Q. Was it dried mud or dirt mixed with water? A. Dirt mixed with water.

 'Q. By trackage from a person's foot, you say, is that ...


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