of a decorative nature and is irreplaceable at this time, just as irreplaceable as the stained glass windows of some of the European cathedrals would be today.
The testimony shows that in the area involved in this case there are two types of tile, one type that has been called by the experts decorative and the other as brown tile. The Assistant Architect of the Capitol, Mario Campioli, was called as a witness. He testified that he took measurements with precision instruments and that as concerns the decorative tile the perimeter was, at times, between five-thousandths and eight-thousandths of an inch lower than the center, the tile itself being convex. He stated, however, that there were only some tiles of this type. As to the tiles referred to as brown tiles, he found that a few of them had depressions. The deepest that he generally found was one-twenty-fifth of an inch, although he did find one where the depth of the depression was three-thirty-seconds of an inch. The plaintiffs' expert did not substantially contradict this testimony, although his estimates of the depth of these depressions were slightly greater, but it must be noticed that he did not use precision instruments to arrive at his findings.
At the request of counsel and in their company the Court visited the locus in quo and inspected the floor. The Court observed the slight protuberances in the figures contained in the decorative tiles that formed the bas-relief. The depressions referred to in the other tiles are minute and almost microscopic, so that they were hardly noticeable, if at all, by the naked eye of an untrained observer. I walked up and down the floor, back and forth in various directions several times, and did not find it particularly slippery. It might have been because I wear rubber heels.
One of the difficulties that confronts the plaintiffs is that there is no evidence to sustain the plaintiff's claim that she fell on one of the tiles that had this minute microscopic depression. Such tiles are in a minority. She might have fallen on one of the other tiles. There is a well-recognized principle of law that if two possibilities can be inferred from the evidence, neither one can be said to have been proved. But the Court is not going to dispose of this case on any such narrow consideration.
The Court is of the opinion that no negligence on the part of the Government has been shown in that the presence of these slight depressions of a minute character formed as a result of wear during a century or so caused by millions of people walking over the floor are not sufficient to make the floor unsafe or anything less than reasonably safe. Counsel has not cited and the Court has been unable to find by independent research a case where a depression so minute as exists in some of these tiles has been deemed sufficient to constitute such a defect as to render a floor unsafe, in using the test of reasonableness for that purpose.
There is no claim here, and there could not be, that these tiles are inherently dangerous. Necessarily, it is a matter of common knowledge that some materials are more slippery than others. Probably a wooden floor covered with a rug or a carpet would be less slippery or the least slippery, but such a floor would obviously be unsuitable for a monumental building such as the Capitol in Washington. Moreover, it might involve questions of fire hazard, which a stone or a tile floor does not involve. A marble floor would probably be even more slippery than tile or stone or a concrete floor, and, yet, there are public buildings in which the floor is made of marble and nobody would suggest that those floors ought to be torn up. It is proper for the Government to use discretion, within reason, in choosing material out of which to build walls or floors and it is only fitting that the choice should be in accord with the architectural and artistic design of the building in which the floor or walls are to be constructed.
The Court concludes that there has been no negligence shown on the part of the Government in the maintenance of the floor where the accident occurred. It further concludes that there is no proof that the plaintiff's fall was proximately caused by any condition in the floor of the Capitol.
Accordingly, judgment will be rendered in favor of the United States dismissing the complaint on the merits.
A transcript of this oral decision will constitute the findings of fact and conclusions of law.
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